Word spacing issue keeps abortion rights amendment from ballot; court fight expected

The Michigan Supreme Court might decide whether Michigan voters will get the chance to enshrine abortion rights in the state constitution this November after a state elections board deadlocked Wednesday over whether to place the proposal on the ballot.

In a heated debate over a lack of spacing between words in the petition text, the Board of State Canvassers split 2-2 along party lines — Democrats voted to place the constitutional amendment on the November ballot, while Republicans rejected it on technical grounds.

The impasse vote came hours after the state elections board also split over a separate ballot initiative related to expanding voting rights in Michigan.

The deadlocks mean ballot initiatives for abortion and voting rights will not proceed to the Nov. 8 ballot short of court intervention.

Democrats have hoped to galvanize voters with the reproductive freedom ballot initiative this fall after the U.S. Supreme Court overturned its landmark Roe v. Wade abortion rights decision on June 24.

Shortly after deadlocking on the petitions, the board also approved the wording for their summaries on the November ballot. The canvassers designated Proposal 2 for the voting rights initiative and Proposal 3 for the abortion rights amendment in the event that the Michigan Supreme Court ultimately clears the way for the proposals to appear on the ballot. 

The high court would face a tight turnaround to decide the cases. Ballot language for Michigan's Nov. 8 election has to be set by Sept. 9 for absentee ballots to be printed and made available to registered voters on Sept. 29.

The votes at the day-long meeting followed nearly three hours of public comment on the petitions as well as sparring among election lawyers and members of the bipartisan board amid protests outside the meeting room.

Reproductive freedom proposal

Most of Wednesday's public comment and debate centered around the lack of spacing between words in the petition circulated by Reproductive Freedom for All.

Canvassers approved the abortion amendment's petition as to form March 23, but the petition language that was ultimately circulated to collect signatures excluded spaces between multiple words.

Opponents argued the language amounted to "gibberish" and violated the form required for state petition initiatives. The proposal's supporters said the text was still readable and the mistakes didn't amount to an error meriting the board's consideration. 

"If what was circulated had come to us for review it would not have received approval because of the severe defect in the spacing and in the form of the language as it was laid out," said canvasser Tony Daunt, the Republican chairman of the state election board. "I think there's ample history of our work on this board to reject things because of issues exactly like that. I have trouble understanding why we should let this one go."

The Michigan Bureau of Elections and lawyers for Reproductive Freedom for All argued the wording issues related to content, a question outside the board's purview, and not to form, which the board does have some authority over.

Canvasser Mary Ellen Gurewitz, a Democrat, agreed. 

"We simply have no authority to reject this petition based upon challenges to the content of the petition," Gurewitz said.

State election officials last week recommended certification for the petition, based on the estimate that Reproductive Freedom for All had collected at least 596,379 valid signatures among the record 752,288 signatures submitted in July. The group exceeded the 425,059 signature threshold by more than 150,000 signatures.

The Bureau of Elections argued state election law was "silent" on the issue of spacing, or tracking, between words.

The initiative, if passed by voters in November, would affirm abortion rights in the constitution and nullify the state's 1931 abortion law, which bans abortion in all cases except when it is performed to save the life of the mother. Enforcement of the law remains blocked as courts battle over whether there is already a right to abortion in the state constitution. 

Election lawyers for and against the proposed amendment offered differing interpretations of the board's ability to weigh the merits of the spacing issue in its decision to certify.

Eric Doster, a lawyer for opposition group Citizens to Support MI Women and Children, argued the lack of spacing should be disqualifying for the petition and that the problem spoke specifically to form, not substance.

"The bottom line is that the full text of the proposed amendment must be actual words," Doster said.

Steve Liedel, a lawyer for Reproductive Freedom for All, downplayed the significance of the spacing problem, noting there are often changes made as ballot initiative wording is placed into the Constitution including changes to capitalization or indentation. 

The important thing about the language used on the petition, Liedel said, is that "the full text is complete."

"There's not a single letter missing," Liedel told the canvassers.

Voting rights initiative

The deadlock over the abortion rights petition came hours after the canvassers deadlocked over the voting rights ballot initiative Promote the Vote 2022.

An opposition group alleged Promote the Vote did not list, as required by law, all of the sections of the Constitution that would be altered or abrogated by the proposal, an argument that eventually led to the deadlock among canvassers.

The Promote the Vote ballot campaign committee is expected to appeal the decision to the Michigan Supreme Court and said Wednesday it was confident the courts would "remedy" the situation. 

“We are extremely disappointed by the Board of State Canvassers’ deadlock," said Khalilah Spencer, board president for Promote the Vote 2022. "This is a disservice to the people of Michigan and is indicative of the obstructionist partisan politics that have taken over truly non-partisan issues like election reform and equal access to the ballot."

The four-member bipartisan panel argued over the limits of their duties and whether those duties were restricted to determining a certain number of valid signatures or included legal interpretations of what was in a ballot initiative. 

Gurewitz said she didn't believe the petition abrogated or repealed sections of the state constitution that weren't already listed in the petition. But she noted such a  determination required her own legal analysis, which isn't usually in the bailiwick of a canvasser's duties. 

"We don’t have the statutory responsibility or right to engage too much with the content of the proposal," said Gurewitz, a Detroit attorney whose practice includes election law.

Daunt argued the court has not specifically blocked canvassers from dealing with questions of potential abrogation, referring to a 2012 Supreme Court opinion on a separate ballot initiative facing similar challenges. Without a specific ruling on the board's involvement on that end, Daunt said he believed the board had a duty to seek clarity on behalf of voters. 

"If it is not clear what they are voting on, that is a detriment to the voters of this state," Daunt said.

The state Bureau of Elections recommended the certification of the Promote the Vote 2022 ballot initiative last week, finding that 507,780 of the 664,029 signatures collected were valid. The benchmark for the proposal was 425,059 signatures. 

Promote the Vote 2022, which expands on a 2018 ballot initiative focused on voting, also allows election officials to accept third-party donations, lets voters join a permanent absentee ballot list and ensures military or overseas ballots postmarked before Election Day and received within six days after are still counted. 

It also would require audits to be conducted publicly by state and county officials without involvement by party officials. It would cement the role of canvassers in certifying election results as well enshrine in the constitution Michigan’s current voter identification rules, which allow in-person voters to show a photo ID or fill out an affidavit to attest to their identity.

Opponents of the ballot initiative argued Wednesday that, without a full listing of areas of the law the initiative would change, people signing the petition and those headed to the voting booth in the fall are misled about the actual effects of the proposal.

"That failure to republish is fatal to Promote the Vote’s petition and this board has a duty to reject it," said Jonathan Koch, a lawyer for the opposition group Defend Your Vote.

One of the areas Koch focused on was the proposal's potential impact on language allowing the Legislature a say over whether prisoners are allowed to vote. 

Chris Trebilcock, a lawyer for Promote the Vote, argued the petition wouldn't abrogate or repeal those items. Trebilcock quoted Michigan Supreme Court Justice Brian Zahra's definition of abrogation as rendering a section "wholly inoperable," which he said isn't the case with sections Defend Your Vote targeted as being underrepresented in the petition.

Regardless, Trebilcock said, "those challenges weren’t made back in February when this petition was approved as to form by this board in a 4-0 vote.”

eleblanc@detroitnews.com

Staff Writer Craig Mauger contributed.