Activists in Michigan have been working on a statewide ballot initiative to ban fracking since 2012. It could be the first fracking law to appear on a state ballot in the United States. After failing to collect sufficient signatures in 2012 and 2013, and sitting 2014 out, the grassroots campaign again came up short when collecting in 2015 for the 2016 ballot. However, this time they responded by announcing they would continue collecting signatures -- they weren't stopping.
"It is not easy getting a grassroots initiative on the ballot. I think that's why our opponents are so scared of us."
As it turns out, a 1986 Michigan Supreme Court decision allows petitioners proposing statute-based initiatives (not constitutional amendments) to use signatures over 180 days old -- but not older than four years -- so long as the campaign is able to reverify the older signatures.
No campaign has ever attempted this, as the process of reverifying the signatures with local election clerks has been prohibitively cumbersome.
But new technology is making it easier. The idea came from a group collecting signatures to legalize and tax recreational marijuana, which also fell short of qualifying for the 2015 ballot. The idea: to cross-reference the older signatures with the state's new digitized Qualified Voter File database. As the database is maintained by local clerks, the petitioners argue cross-referencing the signatures with the Qualified Voter File is equivalent to consulting the clerks.
Opposition to the Use of Signatures Over 180 Days Old
At first this technology seemed to offer a modern-day solution to expedite direct democracy, but a backlash to the innovation is quickly accelerating.
The state Board of Canvassers, a body appointed by the legislature and governor, has argued that the new mode of verification should not be allowed, and on March 10 a bill (SB 776), introduced by State Sen. David Robertson, which set a hard 180-day deadline for statutory initiatives, passed the Michigan Senate with a 70 percent supermajority.
House hearings on the bill have moved forward and petitioners are concerned the vote could be fast-tracked and held as soon as March 23.
If the Republican-controlled House is able to pass it with a supermajority, the bill would take immediate effect -- removing the fracking measure and the marijuana measure from the ballot and reshaping the national narrative headed into the 2016 elections.
"It is not easy getting a grassroots initiative on the ballot," said LuAnne Kozma, campaign director of the Committee to Ban Fracking in Michigan. "I think that's why our opponents are so scared of us, because we're doing it with no money."
Of the 150,000 signatures the group collected in 2015, 16,000 were collected by paid petitioners. Both campaigns need 252,523 valid signatures before June 1 in order to make it onto the 2016 ballot. Gutting the tools available to petitioners "is a bald attack on our campaign and on the State Constitution by our opponents in the oil and gas industry," Kozma said.
The legal wrangling over the 180-day requirement actually dates back to 1974, when Michigan's Attorney General Frank Kelley struck down the state legislature's new time limit. Kelley opined that the state's limited power to determine the "manner" in which signatures are "signed and circulated" did not allow it to impose new time limits.
Then, in 1986, the Michigan Supreme Court fought back on behalf of the state legislature. After legal arguments were heard, the state's top court ruled that for the initiative in question, a proposed constitutional amendment, signatures were required to be gathered within the legislature's 180-day limit. This set a precedent for constitutional amendments, but statutory initiatives were not affected, and remained under the state's then four-year time limit. It was at this time that the the state Board of Canvassers set the cumbersome process for reverifying signatures older than 180 days.
Supporters of the current effort to set a hard 180-day deadline for statutory initiatives through the passage of SB 776 include the Michigan Oil and Gas Association and the Michigan Chamber of Commerce. Michigan Senate Majority Leader Arlan Meekhof has also spoken out in strong support of the bill.
Both Meekhof and Robertson are members of the American Legislative Exchange Council (ALEC), a tax-exempt organization through which corporate representatives craft model legislation for conservative policy makers to introduce in their state legislatures.
The ALEC affiliation may be coincidental, but it is worth noting that ALEC passed a resolution to push reforms curbing the ballot initiative process, where it exists, in 2006.
The Significance of Ballot Initiatives in Michigan
In Michigan, the ballot initiative has emerged as one of the few ways Michiganders living under a far-right Republican legislature have been able to push progressive lawmaking. However, the state has done everything it can to stymie the process. When a $10.10 minimum wage increase was proposed for the 2014 ballot, Gov. Rick Snyder orchestrated a political maneuver to undercut the initiative and remove it from the ballot. The process has also been used to propose renewable energy (2012) and other reforms that would not stand a chance in the legislature. And the direct referendum process has been used to resist emergency management legislation and other neoliberal policies passed by the state. All to say that direct democracy has taken on new political significance in the Great Lakes State.
And with this new significance has come increased attention.
Last year, the Citizens Research Council of Michigan, a nonprofit public affairs research organization, came out with a report asserting that "the current use of initiative and referendum in Michigan is not entirely consistent with the motivations of those that advocated for their inclusion in the state Constitution 100 years ago. The fear at that time was that the legislature was controlled by special interests and the people needed a means to enact laws when those special interests did not find the proposals in their own interests."
The study proposed numerous drastic cutbacks to the process and was sponsored by CMS Energy Corporation, JPMorgan Chase & Co., DTE Energy Company, Earhart Foundation and others.
"These tools of democracy are valued and would be missed if they were eliminated, but a general sense of unease has created an opportunity to look at the use of these tools and processes required for their use," according to the study.
If SB 776 passes, Michigan would join Ohio, Utah, Arkansas and possibly others as states where ALEC-affiliated legislators have introduced or co-sponsored legislation curbing the ballot initiative process, since 2013. Colorado, the only other state where statewide fracking ballot initiatives have been proposed, has also seen a strong backlash resulting in reforms to the process itself. Other laws curbing the process, but not readily linked to ALEC have been passed in other states, while precedent-setting reforms to local initiative processes been have been pushed and passed in a number of states in the last year.
Both the anti-fracking and the marijuana campaigns have promised to sue if SB 776 goes into immediate effect.