How Republicans plan to tighten Michigan voting laws, evade Whitmer veto

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LANSING—Michigan Republicans are planning a petition drive to tighten voting laws and circumvent a promised veto from Democratic Gov. Gretchen Whitmer, a rare maneuver that is controversial but permissible under the state constitution. 

GOP lawmakers in at least 43 states have proposed legislation that could make voting harder in the wake of a November presidential election marked by historic turnout and false claims of widespread election fraud by former President Donald Trump and many Republicans. 

Whitmer stands in the way of those efforts in Michigan, but the state constitution provides a mechanism that Republicans could use to cut her out of the equation.

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Two dozen states allow citizens to initiate legislation by petition drive, an option that is typically used to put measures on the ballot for voters to decide. 

But Michigan is one of just two states with a constitutional provision that expressly prohibits the governor from vetoing resident-initiated legislation that is adopted by the Legislature instead. 

That means by collecting at least 340,047 valid voter signatures, the Michigan Republican Party could send an election reform plan to the Legislature where GOP majorities could enact it into law, effectively shutting out Whitmer, who won election in 2018 with nearly 2.3 million votes.

Michigan is a national outlier in that respect, said David Becker, executive director of the Center for Election Innovation & Research, a nonprofit that researches election security issues.

“It is unusual for there to be a petition process that allows the Legislature to bypass the executive,” he said. “There are ballot initiative processes in other states, but they come with significant burdens in terms of getting on the ballot.”

The plan

The Michigan Senate last week introduced a sweeping 39-bill package that would tighten photo identification requirements for in-person voting, create new identification rules for absentee ballots and limit the use of absentee ballot drop boxes, among other things.

The proposal would also bar local governments from providing free return postage on absentee ballots, and it would prohibit election officials from using private grants to purchase new voting equipment or improve administration. 

Democrats and voter rights groups have blasted the GOP legislation as a form of voter suppression that could disproportionately impact voters of color, who are less likely to have photo identification and are more likely to live in urban areas, where officials rapidly expanded drop box options in 2020.  

Republicans who contend they want to make “voting easier but cheating harder” have touted two of the 39 bills that would expand voter access: One would require clerks to open for early voting on the second Saturday before an election, mandating what is now optional, and another would allow 16-year-olds to pre-register to vote when they obtain their driver’s license.

The package would “create an opportunity for us to have a fair election in 2022,” Michigan GOP Chairman Ron Weiser said last week in a speech before the North Oakland Republican Club, where he confirmed plans for a petition drive should Whitmer veto the Senate bills. 

Many of those bills are “a solution in search of a problem,” Whitmer said Wednesday on CNN, calling the legislation an “unacceptable” response to Trump’s “big lie” that widespread fraud cost him the election against Democratic President Joe Biden. 

“We just came through a historic free, fair, full election,” Whitmer said. “If and when those bills get to my desk, and they're aimed at making it harder for people to vote, they will get vetoed.”

And that’s where the Michigan GOP petition drive would come in.

The petition drive 

The Michigan Constitution allows citizens — including leaders of political parties or special interest groups — to initiate legislation through a petition drive and advance the measure to the Legislature and potentially the statewide ballot. 

To be successful, petition committees must collect voter signatures equal to at least 8 percent of the votes cast for governor in the most recent statewide election. That means, Republicans must collect at least 340,047 valid voter signatures to advance legislation this year or next. 

To get those signatures, the Michigan GOP plans to pay its county parties to circulate petitions, Weiser said last week, noting that could also have an ancillary benefit of boosting local candidates and building a “bench” of locally elected Republicans who could later seek higher office.

The party would have 180 days to collect signatures that, once submitted, would be reviewed by the Michigan Bureau of Elections to spot duplicates or otherwise invalid signatures. The bipartisan Board of State Canvassers would ultimately decide whether the petition qualifies for certification and advancement.

State lawmakers would then have 40 days to consider the initiated legislation. If they did nothing, the measure would go before voters in the next statewide ballot. But if Republicans, who hold majorities in both chambers, approved the initiative before a statewide vote, it would become law. 

And there’s nothing Whitmer could do about it: “No law initiated or adopted by the people shall be subject to the veto power of the governor,” according to the state constitution adopted by voters in 1963.

In the 58 years since that adoption, the Michigan Legislature has approved and enacted nine initiated bills. Fourteen other initiatives have gone to the ballot, along with 33 constitutional amendments and 24 referendums proposed through the petition drive process.

The Michigan Legislature last enacted initiatives in 2018, when Republican majorities approved progressive proposals that would hike the minimum wage and strengthen paid sick leave for workers. But Republicans had no intention of seeing these initiatives become law. Instead, they later amended and weaken both after that year’s statewide election, where sponsors had hoped voters would approve them in their original form.

Earlier in 2018, GOP majorities also enacted an initiative to repeal a prevailing wage law that had guaranteed union-level pay and benefits for constitution workers on state-funded projects. The repeal became law despite a veto threat by then-Gov. Rick Snyder, a fellow Republican.

An abuse?

Using a petition drive to go around Whitmer would be a “clear abuse of the initiative process,” argued Quentin Turner of Common Cause Michigan, a voter rights advocacy group that opposes the Senate GOP election reform plan. 

Petition drives are “meant to be used for people to get around gridlock and non-responsive government, not for political parties to enact a partisan, anti-voter power grab,” he said. 

Washington State has a similar constitutional provision prohibiting the governor from vetoing an initiative approved by the Legislature, but lawmakers there have not used that process in more than a quarter century, according to records. 

And even when it did, in 1995, its action was bipartisan, with Washington’s GOP-led House and Democratic-led Senate approving a "hard time for armed crime" initiative that became law without the governor's signature. 

A majority of states — 26 in total — do not allow for initiated legislation at all, according to the National Conference of State Legislatures. And in most that do permit it, initiated legislation goes to the ballot without going to the Legislature first.

Michigan appears to be the only state in the nation where the Legislature has enacted initiatives to bypass gubernatorial vetoes with any sort of regularity.

The anti-abortion group Right to Life wrote the Michigan playbook in 1987, when it initiated legislation to prohibit the state from using public funding to pay for abortions. A divided Legislature enacted the measure, making it law without the proposal reaching Democratic Gov. Jim Blanchard, who had vetoed it before.

The process is valuable because it allows the “people to act as governor,” said Sen. Ken Horn, a Frankenmuth Republican who supports the new election reform plan.

“When people sign (a petition), they say, ‘We are going to govern this state,’ and when the Legislature gets on board, you don’t need a governor’s signature,” Horn said. “It’s not a matter of going around the governor. This is how this works.”