On July 30, 2018, the Michigan Supreme Court in Citizens Protecting Michigan’s Constitution v. Secretary of State ruled that a proposal by the Volunteers with the Voters Not Politicians (VNP) to create an independent redistricting commission may appear on Michigan’s general election ballot.
The question before the Court was whether under the Michigan Constitution the voter initiative proposal was an “amendment” to the Constitution, which could be proposed by petition, or a “general revision” of the Constitution that could only be enacted through a constitutional convention.
The VNP proposal seeks to establish an independent redistricting commission composed of thirteen total members (four members from each major political party and five independent voters). All thirteen members would be randomly selected from a pool of candidates who have submitted applications, taken oaths, and met various other requirements. Under the proposal, the leaders of both parties in the Michigan Senate and House can strike, in total, 20 names from the applicant pools. A redistricting plan is adopted only with at least two votes from each subgroup, as well as a majority of the whole.
A sufficient number of signatures to support the placement of the petition on the ballot were collected, but Citizens Protecting Michigan’s Constitution challenged the proposal, contending that the proposal was a “general revision” of the Michigan Constitution that could only be enacted through a constitutional convention.
In a 4-3 decision, the Michigan Supreme Court determined there was no controlling authority construing the meaning of the term “amendment” in Michigan’s Constitution. Relying on non-textual sources such as the “Address to the People” by the Constitutions’ framers, and records from various constitutional conventions, the majority created a new test to determine whether a proposal is an amendment. According to the Court, a voter-initiated amendment is permissible if it proposes changes that do not “significantly alter or abolish the form or structure of the government in a way that is tantamount to creating a new constitution.” The Court reasoned that VNP’s proposal did not significantly alter or abolish the structure of government because it would leave the form and structure of the government in essentially the same state as contemplated by Michigan’s 1963 Constitution. Addressing the significant argument that the proposal disrupts the separation of powers, the Court held that while the Legislature had been responsible for drafting redistricting plans, that power was not derived from the Constitution. In comparison to the former constitutional provision, which created a bipartisan commission for redistricting – a provision that was previously struck down because it could not be severed from unconstitutional apportionment standards of the Constitution – the Court held the proposal actually “increases, slightly, the Legislature’s participation in the process. . . . And the Legislature’s new, minor role does not come at the expense of either of the other two branches, which have no real part in the process.”
Chief Justice Stephen Markman, joined by Justices Brian Zahra and Kurtis Wilder, dissented. Chief Justice Markman opined that while the people possess the authority to restructure their own charter or government, the VNP proposal “reflects a fundamental alteration in the relationship between the people and their representatives” and is, therefore, not just an amendment of the Constitution but a “general revision” of the Constitution that requires a constitutional convention. The proposal would create a “super-administrative” commission to carry out “the foundational role of self-government,” which is exactly the type of proposal that warrants “the reflection, deliberation, and consensus decision-making” of a constitutional convention. “The VNP proposal would affect the foundational power of government by removing altogether from the legislative branch authority over redistricting and consolidating that power instead in an independent commission made up of 13 randomly selected individuals who are not in any way chosen by the people, representative of the people, or accountable to the people.” Whatever the merits of the proposal, because it would effect a fundamental change of Michigan’s Constitution and government, it warrants careful deliberation and placement on a ballot only after a constitutional convention.
In November 2018, Michigan voters will decide whether to amend their Constitution by adopting VNP’s proposal.
Thomas Rheaume and Donovan Asmar are members of Bodman PLC’s commercial litigation and appellate practice groups. Bodman PLC is one of the Midwest’s leading business law firms, providing counsel to the region’s most successful companies and individuals on a broad range of issues. Deeply rooted in the communities they serve, Bodman lawyers provide clients with the personal attention of a small firm combined with the talent and knowledge expected of the nation’s leading attorneys. To learn more, visit www.bodmanlaw.com.