“The Democratic governor, Gretchen Whitmer, is likely to veto bills to curb voter access, but Republicans are hinting they will use a loophole to implement the measures
Last modified on Mon 26 Apr 2021 06.02 EDT
On the surface, the Republican effort to roll back voting rights in Michigan looks similar to what’s happening in states around the country: after Donald Trump narrowly lost a key battleground state where there was record turnout, Republicans are moving swiftly to implement sweeping restrictions to curtail access to the ballot box.
But the effort is raising unique concerns. Even though the Michigan governor, Gretchen Whitmer, a Democrat, is likely to veto a package of dozens of pending bills to curb voter access, Republicans are already hinting they will use a loophole to implement the measures anyway. They can take advantage of a quirkin Michigan’s law allowing voters to send a bill to the legislature if just over 340,000 voters sign a petition asking them to take it up. These kinds of bills cannot be vetoed by the governor.
“This effort is particularly anti-democratic, not just in substance, but in procedure,” said the Michigan secretary of state, Jocelyn Benson, a Democrat who serves as the state’s top election official.
The proposals include measures that are breathtakingly restrictive, even when held up in comparison to other measures states are considering. One bill bans Michigan’s secretary of state not only from mailing out absentee ballot applications to all voters, but also blocks her from even providing a link on a state website to a mail-in ballot application. Another proposal does not allow voters to use absentee ballot drop boxes after 5pm the day before election day. A different measure would require voters to make a photocopy of their ID and mail it in to vote by mail.
The effort is being closely monitored in a state known for razor-thin elections and where Donald Trump and allies tried to overturn the result in 2020. Republicans are moving aggressively to put the new voting restrictions in place ahead of the 2022 elections, when there are races for governor, attorney general and secretary of state. Michigan also has several key swing congressional districts that will help determine who controls the US House of Representatives in Washington.
The new restrictions are also urgent for Republicans because they are about to lose one of their most powerful advantages in the state legislature. A decade ago, Republicans manipulated the boundaries of electoral districts in such a way that virtually guaranteed they would hold a majority of seats. That manipulation, called gerrymandering, has allowed Republicans to control the legislature since 2011.
But in 2018, voters overwhelmingly approved a ballot measure to strip lawmakers of their ability to draw districts, giving the power to an independent commission. With the commission set to draw new districts later this year, the new restrictions may be Republicans’ last-ditch attempt to distort voting rules to give them an edge in elections.
“Everything from January 6 forward is about 2022 and ultimately 2024. I believe we should plan for and anticipate that the very forces that emerged in 2020 to try to undermine democracy will be back in full force, potentially stronger, in more positions of authority, to try again in 2024,” Benson said.
In 2018, Michigan voters overwhelmingly approved a constitutional amendment to expand voting by mail in the state. Now Republicans, more powerful thanks to their manipulated districts, are seeking to undo those reforms, Benson said.
“What you have here is legislators, elected through gerrymandered districts, using that power and those seats to reach out to a very small, small portion of Michigan registered voters and use them to justify overturning the will of millions of Michigan citizens who quite clearly want these policies in place and who quite clearly oppose the very policies that the Republicans are promoting,” she said.
“It makes it harder for every person and it’s really only supported by 340,000 people,” said Nancy Wang, the executive director of Voters Not Politicians, a civic action group in Michigan that was behind the 2018 anti-gerrymandering effort. “It’s the tyranny of the minority, but in such extreme, it’s shocking.
Critics say the proposed laws would put up nearly insurmountable barriers for some residents who are elderly, low-income, disabled or face other challenges. Rachel Rion, 87, lives in Westland, a suburb of Detroit, and has relied on mailing absentee ballots in recent elections.
She said the law that would require a photocopy of her identification to be mailed in with her ballot presents a problem because she doesn’t drive, doesn’t understand the rule change and doesn’t know where to get a photocopy made or how to use a copy machine.
She also gave the example of a friend who is battling cancer and who is too sick to get out of bed, let alone deal with photocopies.
“How would she vote?” Rion asked. “I really hope they don’t push through those laws. It really would be hard for us.”
Chris Swope, the city clerk responsible for overseeing elections in Lansing, the state capitol, said there was “not much good” in the package of bills Republicans are proposing. Many voters who use drop boxes, he said, return their ballots on election day and the GOP proposal would take away that option entirely.
The party has cited a lack of trust in elections as their motivation, but “the lack of confidence was caused by people lying because they lost and couldn’t face that”, he said. “I don’t think you overreact to that by making it harder for everyone to vote when you still had 30% of people who didn’t vote at all.”
Republicans have repeatedly used the veto-dodging loophole in recent decades to circumvent opposition from Whitmer and former GOP governor Rick Snyder. Since 1987, the anti-abortion group Right to Life has used it to push through initiatives to ban public funds from being used to pay for abortions for welfare recipients, require parental consent before a minor can get an abortion, define a legal birth and require women to purchase a health insurance rider for an abortion, dubbed “rape insurance”.
The GOP dealt a blow to unions when it used the procedure in 2016 to repeal the state’s prevailing wage law, and in the coming weeks it could be used to strip Whitmer of her emergency order powers used to lockdown the state during the pandemic.
The GOP is likely to turn to an activist network developed and still in place from the emergency order initiative, and the state’s loose laws around dark money will allow donors to contribute without fear of blowback.
“You need people who are highly motivated, have the ground game, and people who have money, and every indication is, boy, Republicans have those things there in spades,” said Bill Ballenger, a Michigan political analyst.
However, the process isn’t foolproof, and Democrats say they plan to use every tool to derail the effort. A 2018 Right to Life campaign would have banned abortions after six weeks, but it failed when the secretary of state found a high number of invalid signatures. Meanwhile, the petition to strip Whitmer’s emergency orders faces a possible legal challenge.
If a voting restrictions package moves forward, Democrats would likely first mount a “decline to sign” campaign to drum up opposition during Republicans’ signature-collection process, said Mark Brewer, a state constitutional attorney and former head of the Michigan Democratic party. They would also challenge the signatures turned into the secretary of state, who has already voiced strong opposition to the proposed laws and could slow the process. “There will be a very concerted effort to ensure that any citizen who signs any potential effort like this knows exactly what they’re signing so we eliminate the opportunity for deception, which has been an issue in the past, repeatedly,” Benson said.
Democrats could also challenge the laws’ constitutionality in the courts, and a counter ballot initiative is also possible, though the logistics are difficult in terms of timing and language. If both measures are approved, the Michigan supreme court, controlled by a 4-3 Republican majority, decides which elements of each become law.
As lawmakers across the country move hundreds of bills to restrict voter access, stopping the new Michigan restrictions would send a powerful message, Benson said.
“If we can overcome this attack on our freedom to vote, and we have many pieces in place to do that, we can be a story of that as opposed to the Georgia story,” where the governor signed a package of restrictions into law in March. “The actions we take now will set the stage for what is attempted in the future.”