Through this exhaustive review, Viviano was left with little choice but to disagree with the majority opinion on the case in question: the one allowing a constitutional amendment on access to abortion to appear on the November ballot. The amendment had been blocked by a state council apparently because some of the text of the amendment appeared on petitions with no visible spaces, sort of like that.
In a footnote, Judge Richard Bernstein, who voted with the majority, disagreed with arguments like Viviano’s.
“As a blind man who is also a smith of words and a member of this Court,” he wrote, “I find it trivial to note that the lack of visual spacing never mattered much to me.”
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The fact that Bernstein dismissed the letter-spaces argument in a footnote, and that Chief Justice Bridget Mary McCormack devoted very little time to it in her majority opinion, reflects an understandable view of reason. why so much attention was paid to spacing in the first place: it was not a question of ensuring understanding of the proposed amendment, but rather of blocking it from the ballot by any means necessary.
“While I accept the assumption of the Court’s order that the challengers’ argument is arguably a challenge to the ‘form and content’ of the motion,” McCormack wrote in a footnote to page, “I think there are good reasons to question whether this is the proper standard, and if so, whether the challengers’ argument is really such a challenge.
In other words, she doubted that the argument was being made in good faith.
“Even though there is no doubt 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 Canvassers of state with the power to do so would keep the voters’ petition for what they claim is a technical violation of the law,” McCormack wrote in concluding his opinion. “They would disenfranchise millions of Michiganders not because they believe the thousands of Michiganders who signed the proposal were confused by it, but because they believe they have identified a technicality that allows them to do so, a game of gotcha gone very wrong.”
“What a sad marker of the times,” concludes his review.
This addendum is powerful. It’s a marker of the times, certainly, that the Board of State Solicitors should use technicalities to block several proposed ballot amendments. The other amendment voted down by the council last month would expand access to the vote itself – meaning the two Republicans who caused the council’s impasse over placement of the amendments refused to allow voters to vote on whether it should be easier to vote.
This same advice, you may recall, was in the spotlight after the 2020 presidential election when certification of the state’s loose vote for Joe Biden was in danger of being stalled by Republican objections. In the end, one of the Republicans on the board announced that the board had no power to block certification even if they wanted to and voted to certify. The other Republican abstained; the state’s Republican Party later declined to renominate the board certification backer.
This is often what the right-wing power struggle looks like these days: introducing roadblocks to voting or undermining election results.
There was also another development on that second front this week. Matthew DePerno, the Republican nominee for Michigan attorney general in November, is being investigated for participating in a scheme to obtain and “investigate” voting machines in several counties. Because the investigation involves the state attorney general — an office occupied by his Democratic opponent — a special prosecutor has been appointed to pursue the investigation.
DePerno is seeking election as attorney general not despite his involvement in a scheme to challenge voting machines, but largely because of it. He drew national attention following the 2020 election, including from Donald Trump, by raising dubious and debunked claims about voter fraud and the security of electoral systems. He denounced state officials and the media as biased and corrupt in harsh terms, although no evidence of fraud or material wrongdoing was ever shown. A Republican-led committee in the state Senate even dismissed DePerno’s claims by name as “demonstrably false and based on misleading information and illogical conclusions.”
And then the Republicans named him the state’s top law enforcement officer.
It is clearly true that it is beneficial for Democrats in Michigan to have an abortion amendment on the ballot in November. An effort to allow the state to ban abortion access on the Kansas ballot lost by a huge margin after voter turnout increased; Democrats would certainly like to see similar energy as we approach the midterms. (Especially since Republican gubernatorial candidate Tudor Dixon has taken a tough stance on abortion access.) But that doesn’t take away from the fact that more than 700,000 people have signed these petitions to have the opportunity to vote on the amendment.
None of them, it seems, were fazed by the lack of spaces – often, one would assume, for the same reason that people rarely object to the terms and services offered by publishers of software. Presented with the ability to vote on an amendment protecting abortion access, about 1 in 13 Michiganders expressed a desire to do so. It only took two Republican bureaucrats to get in their way.
Democracy is littered with choke points where norms and good faith keep the public’s will to move forward. In myriad ways, Michigan is being tested on the free run of democracy in the state.