Whether a ballot initiative petition violated the 160-day rule in MCL 168.471; The power of initiative; Const. 1963, art. 2, § 9; Construction of constitutional & statutory initiative & referendum provisions; Newsome v. Riley

Holding that the initiative petition at issue did not violate the 160-day cutoff in MCL 168.471, the court reversed summary disposition for defendants and remanded to defendant-Secretary of State (SOS) to forward the petition to defendant-Board of State Canvassers. Plaintiffs “engaged in a statutory initiative campaign to ban horizontal hydraulic fracturing, which is commonly known as ‘fracking.’” The front-page summary of the petition provided that the proposal was to be voted on in the 11/8/16 general election, but no election date “was provided in the full language of the petition’s text.” Plaintiffs sought to file the petition with the SOS the day before the 2018 election. But defendant-Director of Elections refused to accept it “because the frontpage summary stated that it was to be voted on at the” 2016 general election that had already passed. Plaintiffs alleged, among other things, “that the petition did not violate MCL 168.471, which provides that petitions must be filed at least 160 days before the election at which the proposal would be voted on.” The court concluded that the “Court of Claims erred in concluding that the inclusion of an expected election date in the summary meant that the initiative could only be voted on that date. This was legal error because it is statutory law, not the circulator’s intent, that determines when an initiative is to be voted on. MCL 168.471 states in relevant part that initiative petitions ‘must be filed with the [SOS] at least 160 days before the election at which the proposed law would appear on the ballot if the legislature rejects or fails to enact the proposed law.’” Because the petitions “are not required to state the election at which the proposed law will appear,” the court did not see any reason “why the reference to an already-passed election should be the date from which the 160-day period is calculated. By statute, the petition may not be voted on in an election less than 160 days away, and so, whatever the petitioner’s intent, the relevant election date is the next one that is at least 160 days away.” This part of MCL 168.471 was satisfied. The Court of Claims also erred when it found that the petition was not filed on 11/5/18. Even assuming the SOS “had the authority to reject it, the basis for doing so was erroneous. Because the Director wrongly refused to accept the filing, the petition must be treated as having been filed on that day.”