LANSING – A partisan split occurred Monday when the Michigan state Board of Canvassers could not reach an agreement on three proposed controversial ballot proposals-including one to expand the number of casinos in Michigan that the Supreme Court essentially ordered on the ballot – likely sending them back to court and keeping their place on November ballot in limbo until further notice.
Republican Norm Shinkle was absent from the meeting, leaving fellow Republican Colleen Pero and Democrats Julie Matuzak and James Waters to determine the fate of multiple ballot proposals. Pero said that Shinkle was at the Republican National Convention in Florida.
Along with the casino issue, the canvassers could not reach concurrence on a proposal to require a two-thirds legislative majority on tax increases and a proposal requiring a statewide vote before a new bridge between Detroit and Canada could be built.
But the proposal to add constitutional guarantees for union organizing was put on the ballot after the Court of Appeals directed it be certified.
The controversial action came as part of a day-long meeting of the canvassers.
The first issue came with the ballot proposal to expand the number of casinos in the state, which on Friday the Supreme Court appeared to send to the ballot after it overturned a Court of Appeals decision to block the proposal.
Opponents of the casino proposal again made the same case to the board as they did to the Court of Appeals when the question of putting it on the ballot faced its first test. Like all other ballot proposals, the casino expansion had more than enough signatures but opponents argued the petition language had “altered or abrogated” existing statute, especially as they related to the Michigan Gaming Control Act and the abilities of the Liquor Control Commission.
John Pirich, speaking on behalf of Protect Mi Constitution, opponents of the casino proposal, said the proposal rewrites the Michigan Gaming Control Act but the petition language does not say it does so. Likewise, because the petition language states that each of the perspective casinos “shall be granted” a liquor license, it oversteps the ability of the Liquor Control Commission to be able to discern who receives one and who does not, he said.
But Jonathan Raven and Graham Crabtree, speaking for proponents Citizens for More Michigan Jobs which oversaw the petition drive, said their client’s proposal did no such things. They relied heavily on arguments made by Justice Stephen Markman, who on Friday joined with the rest of the Supreme Court in overturning the Court of Appeals decision and ordering the secretary of state to keep the issue off of the ballot.
After two hours of back and forth from both parties with only a couple of questions from the panel, Waters moved to reject the challenge and thereby certify the proposal for the November ballot. Matuzak joined him, but Pero disagreed, leaving a 2-1 vote on the matter.
Pero cited concerns about the issuance of liquor licenses to the casinos and the commission’s ability to deny those licenses as her reason for voting against rejecting the challenge.
“If one provision ‘shall have full authority’ and another says they ‘shall be granted,’ then that was my question to (Crabtree): Can you deny it?” she said. “Well if you can’t deny it, you no longer have the authority to grant it. I’m concerned that it directly alters or abrogated the provision that was stated and that. Under Ferency, you can’t alter or abrogate.”
Ferency refers to a court case known as Ferency v. Secretary of State, brought by the late Zoltan Ferency, in which it was determined that a ballot proposal could not alter or abrogate existing provisions of the Constitution without stating that fact in the proposal.
Emily Gerkin Palsrok, spokesperson for Citizens for More Michigan Jobs, said the group will appeal to the Court of Appeals to have their petition put on the ballot.
That may very well be the way that proponents of a constitutional amendment to require a two-thirds majority of the Legislature to increase taxes will go after the canvassers also rejected their proposal thanks to the same voting dynamics that blocked the casinos proposal.
Multiple challenges were made to the proposal. One challenge came from Bill McMaster, speaking for Taxpayers United Michigan Foundation who said the proposal was an attempt to alter the existing Headlee Amendment that already prescribes tax limitation guidelines.
Proponents, however, argued that a two-thirds vote was not substantially different than what powers already exist to the Legislature. They also said their proposal was specifically limited to the role of state government, not local governing power, as some had previously suggested.
But the canvassers expressed concerns about discerning matters of constitutional value, for which they said was the role of the judicial branch and again relied on their Ferency argument. With no solid agreement among the panel members, it too was left in limbo.
Lana Theis, president of the Michigan Alliance for Prosperity, the group driving the proposal, said the ruling by the board was a frustrating setback but not the final word.
“Our initiative was approved to form on April 26 and we collected our signatures in good faith. Certain members of the Board of Canvassers are playing politics with our initiative and we believe standing in the way of the will of the people,” she said in a statement. “We will be filing our challenge in the Michigan Court of Appeals and are confident voters will have the final say on this amendment in November.”
Finally, the focus then shifted to proponents for a ballot proposal that would amend the Constitution to require statewide voter approval for any new international border crossing sought by the state, which was also rejected by the board.
“The ballot petition language was sloppy and hastily written,” Pirich said in a statement, this time speaking for opponent group Taxpayers Against Monopolies. “The petition failed to re-publish at least three existing constitutional provisions that would be altered or abrogated. For the proposed amendment to become a part of the Michigan Constitution, reprinting the current provision is a requirement. The Board of Canvassers made the right decision.”
Proponents saw it differently.
“Politics may have undermined the democratic process for now, but we believe that Friday’s very clear Supreme Court guidance (in the casino issue) and today’s Court of Appeals ruling will ultimately guide the resolution of this matter,” Mickey Blashfield, director of The People Should Decide, said in a statement. “And we are confident that come Election Day The People Should Decide initiative will be approved by the Michigan people.”
Pero defended her voting record that kept the three proposals off the ballot after the board adjourned shortly after 7 p.m. – roughly seven hours after it had called the meeting to order.
“When I was handed the papers to take this position, they said you have to vote what you think is appropriate,” she said. “I am a lawyer, unlike the other people on this board. I do look at this kind of thing.”
She continued, referencing her vote against rejecting the challenge on the casino proposal: “If they can’t deny a license, then they no longer have full authority, right? That’s not constitutional law,” she said. “You don’t have to call a lawyer to say ‘do you have to stop at a red light?’ This is silly. There are things that you learn as lawyers?that you don’t always have to consult an expert.”
Pero said she spoke with Shinkle about the alteration and abrogation issues that she took with the proposals she voted against and said that the two were on the same page about their displeasure with the matter. Because of that, she said, she did not think many of the outcomes
