The suit, filed Thursday in the United States District Court for the Western District of Michigan, was brought by 11 Republican lawmakers: State Sens. Jonathan Lindsey (R-Coldwater) and James Runestad (R-White Lake); and Reps. James DeSana (R-Carleton), Rachelle Smit (R-Martin), Steve Carra (R-Three Rivers), Joseph Fox (R-Fremont), Matt Maddock (R-Milford), Angela Rigas (R-Caledonia), Josh Schriver (R-Oxford), Neil Friske (R-Petoskey) and Brad Paquette (R-Niles).
They argue that because the Elections Clause of the U.S. Constitution (Article I, Section 4) provides for state legislatures to regulate the times, places, and manner of holding federal elections, the measures, which were passed by citizen-led petition initiatives, are unconstitutional as they infringe on the state Legislature’s role within state election law.
Proposal 3 of 2018 and Proposal 2 of 2022 both passed with at least 60% of the vote and guaranteed the rights to same-day voter registration, nine days of early voting, absentee voting, among other rights. Since voters approved the constitutional amendments, the Legislature has passed legislation implementing the measures.
The lawsuit is sponsored by Michigan Fair Elections and the Great Lakes Justice Center and names Michigan Secretary of State Jocelyn Benson and Michigan Director of Elections Jonathan Brater as defendants.
The action seeks not only to halt the changes brought on by the voter-passed initiatives, including no-reason absentee voting and nine days of early voting, but also prohibit the future use altogether of citizen-led petition initiatives when they pertain to state election law.
“We also have procedures in place at the state level to amend election law,” said Lindsey. “However, these processes were violated in 2018 and 2022 when an alternative amendment process was used without regard to federal constitutional requirements. This lawsuit challenges recent attempts to subvert our constitutional process and will protect against such actions in the future.”
The legal argument behind the lawsuit, known as the independent state legislature (ISL) theory, was mostly rejected by the U.S. Supreme Court in June when it ruled in Moore v Harper.
In that case’s 6-3 majority opinion, Chief Justice John Roberts wrote that there were limits to state legislative power in such matters, effectively repudiating the claim that only state legislatures had the power to make election rules, thus providing state and federal courts, and by extension, state constitutions, a role in that process.
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However, the opinion also partially left open the door for alternative interpretations by noting that state courts did not have “free rein” to exceed “the ordinary bounds of judicial review.”
At the time of the ruling, UCLA law professor Richard Hasen told NPR that the decision was likely to result in litigants seeking lower-court judges that could provide a more friendly ruling.
“I think it’s going to create mischief,” he said. “This is a time bomb waiting to explode.”
When asked for comment on the lawsuit, Benson Senior Press Secretary Cheri Hardmon told the Michigan Advance the office couldn’t comment on pending litigation.
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