The upcoming general election of 2022 will allow Michigan’s voters an opportunity to make their voices heard with respect to many important questions relevant to the promotion of social justice in our communities. It presents an opportunity that should not be missed by anyone that wants to have a say about how our government will serve the interests of our citizens in the years to come. This summary has been prepared by the Social Justice Committee of St. Paul’s Episcopal Church, Lansing, to provide a brief explanation of what Michigan’s voters may expect to see on the general election ballot in November and a more detailed analysis of the three statewide ballot proposals. It has been prepared with the hope that it will help promote a more complete understanding of the choices to be made.
In this year’s election, the voters will decide who will serve as Michigan’s Governor, Secretary of State and Attorney General for the next four years. They will choose all of Michigan’s Representatives in the U.S. Congress and all of the members of Michigan’s House of Representatives for the next two years. They will also elect all of the members of the Michigan Senate that will serve for the next four years.
The Governor, Secretary of State and Attorney General will be elected in statewide races. Michigan’s Representatives in Congress and the members of the Michigan Senate and House of Representatives will be elected by voters living in local election districts recently created by the new Independent Citizens Redistricting Commission established in 2018 by a voter-initiated amendment of the Michigan Constitution. In prior years, those election districts have been drawn by the state legislature.
The boundaries of the new election districts were drawn by the new Redistricting Commission based upon the 2020 U.S. Census data and application of constitutionally-prescribed requirements designed to be politically neutral. The desired political neutrality has also been promoted by the new constitutional provisions governing the membership and operation of the new Commission, which were designed to ensure that the redistricting process can no longer be dominated or controlled by any single political party. As required by the new constitutional provisions, the Redistricting Commission’s approval of the new election district maps required the participation and agreement of members identifying as Republican, Democratic, and Independent. With this broader representation of interests, the newly-created election districts will provide a better opportunity for a fair selection of candidates in the congressional and state legislative races.
The general election will also allow voters an opportunity to choose between candidates running for election as university trustees, members of the State Board of Education and justices of the Michigan Supreme Court in statewide races. The election will also determine the selection of judges of the Court of Appeals and a variety of local government officials and judges. It will also allow the voters an opportunity to approve or disapprove a broad variety of important statewide and local ballot proposals.
The candidates running for election to public office in November have widely-differing opinions and visions of how the affairs of our society should be regulated and how our citizens should be served. It is therefore vitally important for all voters to educate themselves as to the qualifications and positions of the various candidates and the substance and merit of the various state and local ballot proposals before casting their ballots. Information regarding the qualification and policy positions of the various candidates can be obtained from their campaign websites and publicly-shared comments. City and township clerks can provide information identifying the candidates and local ballot proposals that will be appearing on the ballot in the city or township where a voter is registered to vote.
The remainder of this discussion will be focused upon the three statewide ballot proposals, which propose critically important amendments of the Michigan constitution addressing financial disclosures by state office holders, term limits for state legislators, protection of voters’ rights, and preservation of reproductive freedom. Those ballot proposals, in order of their appearance on the ballot, are as follows.
Proposal 22-1 Revision of Constitutional Term Limits and Required Financial Disclosures.
If approved by the voters, Proposal 22-1 will amend two existing sections of the Michigan constitution to alter the existing term limits for state legislators and require annual filing of financial disclosure reports by each member of the legislature, the Governor, the Lieutenant Governor, the Secretary of State, and the Attorney General.
The Ballot Language
The three statewide ballot proposals will appear on the ballot with brief summaries of the proposed constitutional amendments. It should be noted that these summaries are not the actual text of the proposed amendments. The summaries have been prepared by the Bureau of Elections and approved for inclusion on the ballot by the Board of State Canvassers. The summaries are brief because the constitution and state election law provide that they cannot be longer than 100 words. It is generally difficult, if not impossible to provide a complete summary of a proposed constitutional amendment in 100 words are less. This summary has therefore included a more detailed discussion of each of the proposed amendments, with quotations of the most pertinent portions of the proposed constitutional language.
The complete text of the amendment proposed as Proposal 22-1 may be found in the language of House Joint Resolution R, which may be found on the legislature’s website. www.michiganlegislature.org. The complete text of the constitutional amendments proposed as Proposals 22-2 and 22-3 can be found in the voter-initiated “Promote the Vote 2022” and “Reproductive Freedom for All” petitions, which may be found on the Board of State Canvassers’ website. www.michigan.gov/sos/elections/bsc.
Proposal 22-1 will appear on the general election ballot as follows:
Proposal 22-1 A proposal to amend the state constitution to require annual public financial disclosure reports by legislators and other state officers and change state legislator term limit to 12 total years in legislature
This proposed constitutional amendment would:
- Require members of legislature, governor, lieutenant governor, secretary of state, and attorney general file annual public financial disclosure reports after 2023, including assets, liabilities, income sources, future employment agreements, gifts, travel reimbursements, and positions held in organizations except religious, social, and political organizations.
- Require legislature implement but not limit or restrict reporting requirements.
- Replace current term limits for state representatives and state senators with a 12-year total limit in any combination between house and senate, except a person elected to senate in 2022 may be elected the number of times allowed when that person became a candidate.
Should this proposal be adopted?
[ ] YES
[ ] NO
As indicated, a “Yes” vote would be a vote in favor of adopting the proposed amendment. A “No” vote would be a vote to oppose the adoption of the amendment.
The Details of the Proposed Amendment
The proposed amendment of Article IV, Section 10 would promote transparency in government by adding new provisions requiring annual filing of financial disclosure reports by each member of the legislature, the Governor, the Lieutenant Governor, the Secretary of State, and the Attorney General. The required financial disclosure reports would be filed with the Department of State, and would be required to include information regarding several specific issues, including:
- Descriptions of assets, liabilities, and sources of earned and unearned income;
- Positions currently held by the office holder as an officer, director, trustee, partner, proprietor, representative, employee, or consultant of any organization, corporation, business entity, labor organization, or educational or other institution other than the State of Michigan; and
- Agreements or arrangements regarding future employment; leaves of absence while serving as a legislator or state officer; continuation or deferral of payments by a former or current employer other than the State of Michigan; and continuing participation in employee welfare or benefit plans maintained by a former employer.
The annually-filed financial disclosure statements would be made available to the public online.
The legislature would be required to enact legislation to implement these changes by December 31, 2023, and if it should fail to do so, any Michigan resident would be permitted to file a lawsuit against the legislature and the Governor in the Michigan Supreme Court to enforce compliance with this requirement.
The proposed amendment of Article IV, Section 54 would change the constitutional term limits for state legislators approved by the voters in 1992. Under the existing provision, a person cannot serve more than three two-year terms as a member of the Michigan House of Representatives or more than two four-year terms in the Michigan Senate. Thus, a person that serves as a Representative for three terms followed by two terms in the Senate can serve as a legislator for a total of fourteen years. The proposed amendment would allow a person to serve a combined total of twelve years as a state legislator. Thus, a person could serve six two-year terms in the House of Representatives or three four-year terms in the Senate, or any combination of terms in the House and Senate that does not exceed a total of twelve years. However, because the amendment will not take effect until after the election if approved, persons elected as members of the Senate this year would be able to run for an additional term, as currently allowed under the existing provision, without regard to the number of terms previously served in the House.
Unlike the other two proposals which have been put on the ballot by voter initiative petitions, Proposal 22-1 was put on the ballot by legislative action. The constitution allows the legislature to place a proposed constitutional amendment on the general election ballot for approval or rejection by the voters by passage of a joint resolution approved by a vote of two-thirds of the members elected and serving in each house. These changes were proposed by House Joint Resolution R, which was passed by the required two-thirds vote by both the House and Senate on May 10, 2022. The approval of the proposed amendments by the required two-thirds vote has demonstrated that there has been a significant level of bipartisan support for the proposed changes.
Proposal 22-2 Protection and Enhancement of Voters’ Rights
Proposal 22-2 has been put on the ballot by a voter-initiated petition sponsored by an organization known as “Promote the Vote 2022.” It proposes several amendments of Sections 4 and 7 of Article II of the Michigan Constitution intended to provide additional protection and enhancement of voters’ rights. The proposed amendments would add several new constitutionally-guaranteed rights to supplement others previously established in 2018 by the voters’ approval of Proposal 18-3.
The submission of the petition proposing these changes was prompted by the sponsoring organization’s belief, supported by the required number of voter signatures, that the fundamental right to vote must be guarded by specific constitutional protections against attempts to erode or limit the rights of voters by legislative action. Specifically, the sponsor’s actions leading to the approval of Proposal 22-2 for submission on the ballot were motivated, in large part, by recent efforts to enact legislation imposing new restrictions upon the right to vote and new regulation of the voting process by individuals and organizations that have made, and continue to make, the universally rejected claims that the 2020 presidential election was stolen by massive fraud. Those efforts have been pursued by means of legislation passed by the Republican-controlled legislature but vetoed by Governor Whitmer, and by a voter-initiated petition for initiation of legislation sponsored by another organization known as “Secure MI Vote.” The legislation proposed by the Secure MI Vote petition would become statutory law without the Governor’s approval if certified for submission to the legislature by the Board of State Canvassers and then passed by the legislature without change. But constitutional provisions are controlling over inconsistent statutory provisions, and thus, if approved by the voters, the new constitutional provisions proposed by Proposal 22-2 would be controlling, rendering all inconsistent legislation unenforceable to the extent of the inconsistency.
The Ballot Language
Proposal 22-2 will appear on the general election ballot as follows:
Proposal 22-2 A proposal to amend the state constitution to add provisions regarding elections.
This proposed constitutional amendment would:
• Recognize fundamental right to vote without harassing conduct;
• Require military or overseas ballots be counted if postmarked by election day;
• Provide voter right to verify identity with photo ID or signed statement;
• Provide voter right to single application to vote absentee in all elections;
• Require state-funded absentee-ballot drop boxes, and postage for absentee applications and ballots;
• Provide that only election officials may conduct post-election audits;
• Require nine days of early in-person voting;
• Allow donations to fund elections, which must be disclosed;
• Require canvass boards certify election results based only on the official records of votes cast.
Should this proposal be adopted?
[ ] YES
[ ] NO
As indicated, a “Yes” vote would be a vote in favor of adopting the proposed amendment. A “No” vote would be a vote to oppose the adoption of the amendment.
The Details of the Proposed Amendment
The amendments of Article II, Section 4 proposed by Proposal 22-2 would specify that the right to vote is a “fundamental right” and provide that:
“No person [including the State and any legal entity] shall: (1) enact or use any law, rule, regulation, qualification, prerequisite, standard, practice, or procedure; 2) engage in any harassing, threatening, or intimidating conduct; or 3) use any means whatsoever, any of which has the intent or effect of denying, abridging, interfering with, or unreasonably burdening the fundamental right to vote.”
The proposed amendment specifies that any Michigan citizen or citizens would have standing to pursue legal action for enforcement of these fundamental rights on behalf of themselves, and would be entitled to an award of their reasonable attorney fees, costs and disbursements if they prevail in a lawsuit pursued for that purpose.
In addition to the fundamental right to vote without harassment, interference, or intimidation, the proposed amendments of Article II, Section 4 would specify and ensure the protection of the following additional rights of voters:
- To have military or overseas ballots counted if postmarked by election day and received by the appropriate election official within six days after the election;
- To prove their identity when voting in person or applying for an absentee ballot in person by presenting a photo identification issued by a federal, state, local, or tribal government or an educational institution, or by signing an affidavit verifying the voter’s identity. When applying for an absentee ballot by mail, voters would be permitted to verify their identity by providing their signature to the election official authorized to issue absentee ballots for comparison with the voter’s signature in the voter registration records.[1]
- To apply to vote absentee in all future elections by submission of a single request, and to submit absentee ballots using secure official drop-boxes or state-funded postage. Every municipality would be required to make at least one publicly-funded secure drop box available, and in municipalities having more than 15,000 registered voters, the municipality would be required to provide at least one drop box for every 15,000 registered voters. The ballot drop boxes would have to be equitably distributed throughout the municipality and would have to be available for use for 40 days before an election and until 8:00 p.m. on Election Day;
- To have secure and publicly-conducted election audits conducted and supervised by the Secretary of State, using methods that have been finalized and made public prior to the election being audited. Although election audits would be conducted in public, no officer or member of the governing body of a national, state, or local political party, or any political party precinct delegate, would be allowed to have any role in the direction, supervision, or conduct of an election audit. All sources of funding for election audits would be publicly disclosed. Public election officials would maintain the custody and security of all ballots and election materials during an election audit; and
- To vote early in-person over a period of 9 days before an election.
The proposed amendment of Article II, Section 4 would also specify that a county, city, or township conducting an election may accept and use publicly-disclosed charitable donations and in-kind contributions to conduct and administer elections. These types of donations and contributions could be used, for example, to help provide funding or volunteer assistance for voter registration drives, or to make non-governmental facilities available for use as polling places in underserved areas.[2] The county, city or township would have discretion as to whether to accept or use any such donations and contributions but would not be permitted to accept donations or contributions of foreign funds or from foreign sources. Applying common legal usage, a “foreign” donation or contribution would be understood to include all donations or contributions from sources in other states or foreign countries.
The proposed amendments of Article 2, Section 7 would clarify the jurisdiction and authority of the Board of State Canvassers. The Board of State Canvassers is a constitutional entity created by that provision. Its primary functions are to certify the results of elections based upon election results reported by local election officials, and to determine whether candidate nominating petitions, voter-initiated proposals for amendment of the constitution, initiation of legislation, and approval or disapproval of enacted legislation by referendum have been presented in proper form and sufficiently supported by the required number of valid voter signatures to permit the submission of the candidates and proposals on the ballot.
Article II, Section 7 provides that the Board of State Canvassers shall consist of four members, and that a majority of its members cannot consist of members of the same political party. Thus, the Board has always had two Republican members and two Democratic members, and the state election law further requires that any action by the Board must be supported by a vote of at least one member of each party. In light of this combination of requirements, the Board can often be expected to deadlock 2 to 2 along party lines, preventing any action, when a question presented for its consideration is politically controversial. And when the Board’s action is prevented by a deadlocked vote in such cases, the matter must be resolved by application to the Supreme Court.
Other problems have resulted from uncertainty regarding the scope of the Board’s jurisdiction and authority. Although the Board’s jurisdiction and authority with respect to certification of election results have generally been limited to a ministerial tabulation of votes and certification of election results based upon the tabulated votes, objections to certification have been made based upon legal challenges in spite of legal authority holding that the Board is without authority to decide legal questions. For example, challenges to certification of the 2020 election results have presented as-yet unresolved questions regarding the Board’s authority to order election audits or investigate allegations of fraud before certification of an election’s results.
The proposed amendments of Article II, Section 7 would provide needed clarification by the addition of new language stating that: “The outcome of every election in this state shall be determined solely by the vote of electors [voters] casting ballots in the election.” The new language would go on to specify that:
“It shall be the ministerial, clerical, nondiscretionary duty of a Board of Canvassers, and of each individual member thereof, to certify election results based solely on: (1) certified statements of votes from counties; or (2) in the case of Boards of County Canvassers, statements of returns from the precincts and absent voter counting boards in the county and any corrected returns. The Board of State Canvassers is the only body or entity in this state authorized to certify the results of an election for statewide or federal office and to determine which person is elected in such election.”
The proposed amendment would provide further clarification that the certification of any election results by the Board of State Canvassers shall be final, subject only to a post-certification recount supervised by the Board under procedures established by law, or a post-certification court order.
Proposal 22-3 State Constitutional Protection of Reproductive Freedom
Proposal 22-3 has been put on the ballot by a voter-initiated petition sponsored by an organization known as “Reproductive Freedom for All.” It proposes the addition of a new Section 28 to Article I of the Michigan constitution which would ensure freedom of choice with respect to abortions and other reproductive issues under the Michigan constitution. The preparation and circulation of the petition proposing these changes was motivated by anticipation of the U.S. Supreme Court’s recent decision in Dobbs v Jackson Women’s Health Organization, 596 US ___ (2022), which overruled the Court’s 1973 decision in Roe v Wade, 410 US 113 (1973).
The Supreme Court’s prior decision in Roe v Wade held that there was a constitutional right of personal privacy under the due process clause of the Fourteenth Amendment of the U.S. Constitution that guaranteed a pregnant woman’s right to have an abortion. But although broadly defined, the right to have an abortion was not unlimited. Specifically, the Court’s decision in Roe v Wade held that:
- For the stage of pregnancy prior to approximately the end of the first trimester (the first third), the decision to have an abortion, and the effectuation of that decision, must be left to the medical judgment of the pregnant woman’s attending physician;
- For the stages of pregnancy after the approximate end of the first trimester, the State, in promoting its interest in the health of the mother, could regulate the abortion procedure in ways that are reasonably related to maternal health; and
- For the last stage of pregnancy after viability of the fetus (the ability of the fetus to survive outside of the womb), the State, in promoting its interest in the potentiality of human life, could regulate, and even prohibit, abortion except where it was necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The U.S. Supreme Court’s recent decision in Dobbs v Jackson Women’s Health Organization overruled its 1973 decision in Roe v Wade based upon the majority’s finding that Roe had been wrongly decided. Specifically, the Court concluded that the Fourteenth Amendment did not create a right of personal privacy under the U.S. Constitution as the Court had determined in Roe, and that the regulation and prohibition of abortion was therefore a matter for determination by the legislatures of the individual states.
The elimination of the federal constitutional protections of Roe v Wade has had varying consequences in the various states. In Michigan, it has served to renew the viability of a criminal statute in the 1931 Penal Code (MCL 750.14) which prohibits any person from performing an abortion or taking any other action with the intent to cause a miscarriage of a woman’s pregnancy unless the abortion or other action is “necessary to preserve the life of the woman.” Violation of that statute, which has remained on the books as a state law although made unenforceable by the Supreme Court’s decision in Roe, is a felony punishable by imprisonment for up to 4 years and/or a fine of up to $5,000.
The renewed viability of MCL 750.14 has generated a great deal of concern and uncertainty. Prosecutors in some counties have said that they will now enforce MCL 750.14 by criminal prosecution of abortion providers while the Attorney General and other county prosecutors have said that they will not do so. Lawsuits have been filed in the Michigan Court of Claims and the Oakland County Circuit Court arguing that a right to have an abortion should be recognized under the state constitution. Orders have been entered in those lawsuits suspending enforcement of MCL 750.14 pending final disposition, and it is anticipated that the questions presented in those cases will ultimately be decided by the Michigan Supreme Court. But if a constitutional right to abortion is not added to the state constitution or recognized by the Michigan Supreme Court’s final decision, abortions will be unavailable in Michigan, unless found to be necessary to save the life of the pregnant woman, because doctors and other health care professionals will be unwilling to risk a prison sentence for performing them.[3]
If approved by the voters, the constitutional amendment proposed by Proposal 22-3 will establish new protection of a pregnant woman’s right to have an abortion under the Michigan constitution consistent with the constitutional protections previously provided by the U.S. Supreme Court’s decision in Roe v Wade. If adopted for inclusion in the state constitution, that protection would prevent the enforcement of any inconsistent legislation or judicial decisions unless modified by a future constitutional amendment.
The Ballot Language
Proposal 22-3 will appear on the general election ballot as follows:
Proposal 22-3 A proposal to amend the state constitution to establish new individual right to reproductive freedom, including right to make all decisions about pregnancy and abortion; allow state to regulate abortion in some cases; and forbid prosecution of individuals exercising established right
This proposed constitutional amendment would:
- Establish new individual right to reproductive freedom, including right to make and carry out all decisions about pregnancy, such as prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management, and infertility;
- Allow state to regulate abortion after fetal viability, but not prohibit if medically needed to protect a patient’s life or physical or mental health;
- Forbid state discrimination in enforcement of this right; prohibit prosecution of an individual, or a person helping a pregnant individual, for exercising rights established by this amendment;
- Invalidate state laws conflicting with this amendment.
Should this proposal be adopted?
[ ] YES
[ ] NO
As indicated, a “Yes” vote would be a vote in favor of adopting the proposed amendment. A “No” vote would be a vote to oppose the adoption of the amendment.
The Details of the Proposed Amendment
If approved by the voters, the new Article I, Section 28 would provide that every individual has a “fundamental right to reproductive freedom,” which would include “the right to make and effectuate decisions about all matters relating to pregnancy, including but not limited to prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.”
The proposed amendment would provide, further, that: “An individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means.”
As in Roe v Wade, the proposed right to reproductive freedom would not be absolute, but would instead be subject to some reasonable regulation. The operative language was taken from Roe and other judicial decisions reviewing the validity of legislation restricting the exercise of rights considered “fundamental” under the due process clause of the Fourteenth Amendment. Under those decisions, those who have sought to uphold limitations upon the exercise of a “fundamental right” have generally been required to carry a very heavy burden of proving that the limitation in question is warranted by a “compelling state interest” and that the protection of that interest has been achieved by the “least restrictive means.”
The proposed amendment would include language specifying that a state interest could be considered “compelling” only if “it is for the limited purpose of protecting the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine, and does not infringe on that individual’s autonomous decision-making.”
Applying these standards, the new constitutional language would include the following specific provisions broadly designed to prevent legislative, prosecutorial, or judicial efforts to limit or burden the newly-created constitutional right to reproductive freedom:
- “Notwithstanding the above [the establishment of the “fundamental right”], the state may regulate the provision of abortion care after fetal viability[4] provided that in no circumstance shall the state prohibit an abortion that, in the professional judgment of an attending health care professional, is medically indicated to protect the life or physical or mental health of the pregnant individual.”
- “The state shall not discriminate in the protection or enforcement of this fundamental right.”
- “The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes, including but not limited to miscarriage, stillbirth, or abortion, nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.”
The language of the new Section 28 would also specify that: “This section shall be self-executing. Any provision of this section held invalid shall be severable from the remaining portions of this section.” This would ensure that the new provisions would be effective and enforceable without the necessity for any implementing legislation, and that if any of the new provisions should be found to be invalid by a judicial ruling, the remaining provisions would remain enforceable without the provision found to be invalid.
Available Resources
As previously discussed, complete copies of House Joint Resolution R and the voter-initiated petitions proposing the constitutional amendments now certified for submission to the voters as Proposals 22-2 and 22-3 can be found on the legislature’s website at www.michiganlegislature.org and the Board of State Canvassers’ website at www.michigan.gov/sos/elections/bsc. The brief summaries to be included on the ballot for all three proposals can also be found on the Board of State Canvassers’ website. For comparison, the currently-existing language of the Michigan Constitution can be found on the legislature’s website.
Prepared by:
Graham K. Crabtree
Social Justice Committee Chairman
[1] At present, the statutory election law requires a person to provide identification when voting but does not specify the form of identification required. The stricter statutory provisions proposed by the Secure MI Vote petition would require individuals to provide the last four digits of their social security number when applying for registration to vote and require identification by an approved form of photo identification when voting. If unable to present a photo ID, the person would be allowed to complete an “ID only provisional ballot” which would be counted if the person provides an approved form of picture ID or a copy of his or her birth certificate or social security card, together with a current utility bill, bank statement, paycheck, government check, or other government document containing the name and current address of the person, within six days after casting the ID only provisional ballot. But as previously discussed, application of these more stringent statutory requirements would be prevented by the approval of Proposal 22-2.
[2] In contrast, the new statutory provisions proposed by the Secure MI Vote petition would prohibit any acceptance or use of private monetary, in-kind, or other donations for conducting or administering elections.
[3] It may be anticipated that doctors and other health care providers will be reluctant to risk having their medical judgments second-guessed by police, prosecutors, and jurors lacking medical expertise.
[4] “Fetal viability” would be defined as: “The point in pregnancy when, in the professional judgment of an attending health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.”