Constitutionality of provisions in 2018 PA 608 amending the Michigan Election Law as to initiative petitions; The 15% geographic requirement; MCL 168.471, 168.477(1), & 168.482(4); Const 1963, art 2, § 9; Const 1963, art 12, § 2; Self-executing constitutional procedures; Requirements as to petition circulators; MCL 168.482; The checkbox requirement; MCL 168.472(7); The Anderson-Burdick test; Meyer v Grant; Buckley v American Constitutional Law Found Inc (ACLF); The affidavit requirement for paid circulators; MCL 168.472(2); Severability; In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38

The court held that the provisions of 2018 PA 608 creating the 15% geographic requirement in MCL 168.471, 168.477(1), and 168.482(4), and the precirculation affidavit requirement for paid circulators in MCL 168.472(2) are unconstitutional. But it held that the checkbox requirement in MCL 168.472(7) is constitutional. Thus, it affirmed the Court of Claims in part and reversed in part. As to severability, 2018 PA 608 “may be read as if the offending provisions are not there.” The court agreed with the Court of Claims that the geographic requirement violated the constitutional provisions as to “initiative petitions and constitutional amendments because those provisions are self-executing.” While the Legislature may enact statutory requirements relating to the procedures regulating initiatives, the court did “not view a geographic requirement that limits voter participation in the initiative process as pertaining to ‘procedures’ regarding initiatives.” Instead, it imposes “additional limitations on the electorate’s power under the Constitution.” The court noted that the Michigan Constitution does not contain any “geographic distribution requirement in the text. Under the longstanding constitutional structure, a registered voter anywhere in Michigan could sign a petition and that signature would be counted in support. In contrast, under the 2018 PA 608 amendments, a voter’s signature would not be counted if the geographic cap had been reached in his or her district.” This was not in line with the framers’ intent. Thus, the court held that the geographic limit established “an unnecessary and unreasonable restraint on the constitutional right of the people to initiate laws[,]” making it unconstitutional. However, as to the checkbox requirement, it was “persuaded that the state has a compelling interest in ensuring that the political speech involved in circulating petitions comes with a ‘full disclosure’ whether it is paid or volunteer” and that the requirement was “clearly narrowly tailored.” But the court found the intervening defendant failed to show the state’s interests were furthered by the affidavit “requirement, which singles out only paid circulators, and burdens the sponsors’ political speech by imposing a requirement that circulators must file an affidavit before gathering any signatures.” Thus, this requirement failed to meet the strict scrutiny standard.