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Update: Michigan Supreme Court Upholds Checkbox Requirement

By Jeff Burtka posted 01-28-2022 09:32


The Michigan Supreme Court has clarified the standards for petitions for a constitutional amendment, ballot initiative, or referendum, including a requirement in MCL 168.482(7) that petitions include a checkbox indicating whether the signature gatherer is paid or a volunteer.  

In League of Women Voters of Michigan v Secretary of State, Nos 163711, 163712, 163744, 163745, 163747, 163748, ___ Mich ___, ___ NW2d ___ (Jan 24, 2021), the court held that the checkbox requirement passes constitutional muster. It further held that its decision is prospective so that only signatures gathered after January 24, 2022, must be on a petition that contains a checkbox.

The prospective nature of the ruling is a relief to groups that have been collecting signatures on forms without checkboxes. The groups used forms without checkboxes in part because of a now-vacated decision of the Michigan Court of Appeals, which held that the checkbox requirement is unconstitutional. League of Women Voters of Michigan v Secretary of State, 331 Mich App 156, 952 NW2d 491 (2020) (LWV I).

In October, the validity of their petitions became unclear when the Michigan Court of Appeals reversed course by holding that the checkbox requirement is constitutional. League of Women Voters of Michigan v Secretary of State, Nos 357984, 357986, ___ Mich App ___, ___ NW2d ___   (Oct 29, 2021) (LWV II).

In making its ruling prospective, the supreme court noted that the groups had relied on previous courts’ rulings that the checkbox requirement was unconstitutional and that the Board of State Canvassers had approved forms without checkboxes. The court also stated that invalidating signatures could confuse voters and make them averse to signing a new petition, which would infringe the rights to communicate and speak by petition.

The supreme court also affirmed the court of appeals by holding two amendments to the Michigan Election Law, a 15 percent geographical limit on voter signatures in MCL 168.471 and the affidavit requirement of MCL 168.482a, are unconstitutional.