A citizen-initiative ballot measure seeking to enshrine abortion rights in the Michigan state constitution was blocked Wednesday from being certified for the November ballot.
The Michigan Board of State Canvassers on Wednesday deadlocked on a party line 2-2 vote whether to certify the Reproductive Freedom for All ballot initiative to the November ballot, throwing its future into uncertainty.
The measure won’t appear on the ballot for now, but the campaign behind the initiative on Thursday asked the Michigan Supreme Court to intervene, arguing that the Board’s refusal to qualify the petition as sufficient violates the state’s election law and constitution.
In its lawsuit, Reproductive Freedom for All asked the state Supreme Court to order the Board of State Canvassers to certify the petition as sufficient and eligible for placement on the ballot and the secretary of state to include the ballot statement when certifying to county clerks the general election ballot.
The group also asked for an expedited decision by September 7 – two days before the deadline to finalize the ballot.
The Michigan Bureau of Elections had last week recommended to the board that it approve certification of the petition.
Reproductive Freedom for All submitted more than 750,000 signatures to the Secretary of State’s office in July. In its staff report the Bureau of Elections estimated the petition had 596,379 valid signatures – about 146,000 more than the minimum signatures required.
Opponents, however, challenged the proposed amendment over the petition’s lack of spacing between words. During public debate Wednesday morning, those opposed argued that the amendment is vague, sloppily written and error-ridden, and thus should be rejected from being placed on the ballot.
In its staff report, the Bureau noted that Michigan election law is “silent on the amount of space that must be between letters and words in a petition.” It made no recommendation “as to the merits of these legal arguments as they pertain to the substance of the petition.”
The Board of State Canvassers’ two Democrats voted to certify the petition while the board’s two Republicans, including the chair, voted against certification, agreeing with opponents’ objections to the amendment’s formatting.
Despite the deadlock vote, the board designated the measure as Proposal 22-3 and also approved the proposal language as how it would appear on the ballot if certified.
In its Thursday filing, RFFA argued that the “law is clear” on the duty of Board of State Canvassers and that the board failed to do its job. The group wrote that Michigan election law “defines what the form requirements are,” and that the two Republican members “exceeded their authority when they considered additional requirements that have no basis in law.”
“There is no dispute that RFFA submitted sufficient signatures. Because the single challenger to the RFFA petition challenges the content of the constitutional amendment, it appears that there is also no dispute that the RFFA petition complies with the petition form requirements (as the Board confirmed at its March 23, 2022 meeting). Plaintiffs therefore have a clear legal right to have the Board qualify its petition for the ballot and to have the Secretary certify the ballot question to go before the voters,” RFFA said in its complaint.
The constitutional amendment would establish an “individual right to reproductive freedom, including right to make and carry out all decisions about pregnancy,” according to the 100-word summary.
If approved, the state constitution would be amended to allow the state to “prohibit abortion after fetal viability unless needed to protect a patient’s life or physical or mental health” and “prohibit prosecution of an individual, or a person helping a pregnant individual, for exercising rights established by this amendment; and invalidate all state laws that conflict with this amendment.”
The ballot initiative took increased urgency following the publication of a US Supreme Court draft opinion in May that would overturn Roe v Wade. The high court in June ultimately decided to overturn Roe v. Wade, ending the constitutional right to abortion nationwide.
Michigan’s pre-Roe ban – a 1931 abortion ban, which was invalidated by the decision in Roe v. Wade but remained on the state’s books – has been blocked by state courts.
There are also pending requests before the state Supreme Court asking the court to declare definitively that the pre-Roe ban violates the state’s constitution.
This story has been updated with additional developments.