“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.”

—Supreme Court

Ending a nationwide right to abortion would not be unjust, the conservative Supreme Court majority wrote in Dobbs, because voters could decide to protect abortion rights through the democratic process. Of course, with gerrymandering and voter suppression, this is already a questionable assertion. But Republican officials in Michigan directly took abortion rights out of voters’ hands last month by blocking an amendment from even appearing on the ballot.

The Michigan Right to Reproductive Freedom Initiative would add a new section to the Michigan Constitution that enshrines “a fundamental right to reproductive freedom, which entails 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.” It further would establish protection against prosecution for anyone who performs an abortion or aids an individual in obtaining an abortion.

The Reproductive Freedom for All campaign gathered more than 750,000 signatures from all 83 counties in the state — far exceeding the roughly 425,000 required to qualify.

Spacing

The Michigan Board of State Canvassers on August 31 deadlocked on a party line 2-2 vote whether to certify the ballot initiative to the November ballot.

The board’s GOP members voted against approving the measure for the ballot after the anti-abortion group campaigning against the amendment, Citizens to Support MI Women and Children, argued that spacing and formatting errors in the text circulated to voters for their signatures rendered the effort invalid.

“Nonsense cannot be put into the Michigan constitution,” Eric Doster, the attorney for Citizens to Support MI Women and Children, argued on Wednesday. “Actual words are required.”

Opponents to the ballot initiative argued that small sections of the petition with no spaces between words invalidated all of the 750,000 signatures. Pro-life groups cited the following examples: “DECISIONSABOUTALLMATTERSRELATINGTOPREGNANCY,” “FACTSOFTHECASE,” “INCLUDINGBUTNOTLIMITEDTOMISCARRIAGE,” and “OFTHEFETTUS’SSUSTAINED SURVIVALOUTSIDETHE.”

However, the spacing requirement is a completely novel invention of opponents, not supported by state law, Attorney General Dana Nessel pointed out in a brief:

The Board’s own staff recognized that “the Michigan Election Law is silent on the amount of space that must be between letters and words in a petition.” (8/26/2022 Staff Report, p 4.) In the absence of a statutory requirement, further questions arise: how much space is sufficient for the Board? Do ballot committees need to invest in rulers to ensure that the Board’s preferred spacing exists between every word? Or is the test whether a reasonable person could comprehend the text? That these questions are silly only proves the point—the Board has no authority, let alone the expertise, to step in the Legislature’s shoes and dictate what constitutes the proper “form.” Rather, the Board is required to review the petition against the statutory requirements, and check the appropriate boxes. It has failed in this simple duty.

Ruling

The Michigan Supreme Court ruled 5-2 yesterday in favor of the ballot initiative, ordering it to appear on the November ballot. Justice Elizabeth Clement, a Republican, joined the four Democratic justices in the majority. Justices Brian Zahra and David Viviano, the other two Republicans on the court, both dissented.

Chief Justice Bridget Mary McCormack (D), concurring with the majority:

Seven hundred fifty three thousand and seven hundred fifty nine Michiganders signed this proposal—more than have ever signed any proposal in Michigan’s history. The challengers have not produced a single signer who claims to have been confused by the limited-spacing sections in the full text portion of the proposal. Yet two members of the Board of State Canvassers would prevent the people of Michigan from voting on the proposal because they believe that the decreased spacing makes the text no longer “[t]he full text.” That is, even though there is no dispute that every word appears and appears legibly and in the correct order, and there is no evidence that anyone was confused about the text, two members of the Board of State Canvassers with the power to do so would keep the petition from the voters for what they purport to be a technical violation of the statute. They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad.

What a sad marker of the times.

Democratic Justice Richard Bernstein (who is legally blind), used the footnotes in his concurring opinion to attack Republican Justice Brian Zahra. Bernstein is running against Zahra for one of two open seats this fall.

Justice ZAHRA notes that, while my long-standing position on election matters “has populist appeal, it ignores the requirements of our election law[.]” But our state Constitution opens with the reminder that “[a]ll political power is inherent in the people.” Const 1963, art 1, § 1. I do not believe it inappropriate to keep the people of the state of Michigan in mind in any election matter that comes before us. Moreover, that the majority of this Court disagrees with the legal conclusions drawn by the dissents does not mean that we are ignoring the requirements of our election law.

Justice ZAHRA notes that, as a wordsmith and a member of this Court, he finds it “an unremarkable proposition that spaces between words matter.” As a blind person who is also a wordsmith and a member of this Court, I find it unremarkable to note that the lack of visual spacing has never mattered much to me.

Justice David Viviano (R), dissenting:

Both by constitutional mandate and statutory law, plaintiff, as the proponent of the petition, was required to place the “full text” of the amendment on the petition. Const 1963, art 12, § 2; MCL 168.482(3). The petition that plaintiff circulated, however, lacked any discernable spaces between the words in the core provisions of the amendment. The specific legal question presented is whether these petitions, with the key words jammed together, contain the “full text” of the amendment. I conclude that they do not. The “full text” requirement means just that: the full text. The language on the petitions is not the full text that plaintiff seeks to insert into the Constitution, as the latter language contains the spacing the former lacks. The petition therefore has failed to meet the legal prerequisites for being placed on the ballot, and a writ of mandamus should not be issued. I therefore dissent from the Court’s order today ordering the petition to be certified for the ballot.

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The Republican attempt to block the Michigan Right to Reproductive Freedom Initiative from appearing on the ballot was averted by a state Supreme Court faithful to the democratic process, illustrating the immense importance of participating in state elections. Democrats currently enjoy a 4-3 majority on the Michigan court. One justice from each party faces voters this year (Richard Bernstein and Brian Zahra, respectively). Republicans need to win both seats to regain control.

Read /r/keep_track’s guide to state Supreme Court elections this year.