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The next voting rights battleground is Michigan

The Michigan GOP has an aggressive plan to suppress the vote — and to bypass the governor’s veto.

Protesters carry signs that read, “Rigged for Biden.”
Supporters of then-President Donald Trump demonstrate outside of the TCF Center to protest the counting of votes for the 2020 general election on November 6, 2020, in Detroit. 
Jeff Kowalsky/AFP via Getty Images

Michigan Republicans want to pass a blitz of legislation that restricts the right to vote in the key battleground state — and they have an audacious plan to get their ideas enacted, even though they have to contend with a Democratic governor who could ordinarily veto their bills.

State lawmakers proposed 39 different bills targeting elections, including ones that restrict absentee voting, a bill that could prevent the state from certifying elections, and a pair of bills that would give ordinary poll workers a simply extraordinary amount of power to restrict voting.

Until recently, Michigan seemed safe from the kind of anti-voting legislation that has proliferated in GOP-controlled states like Georgia and Texas. The state has a Democratic governor, Gretchen Whitmer, who could veto bills that seek to skew future elections toward the Republican Party, and the GOP’s majorities in the state legislature are too small to override a veto.

But, early this month, the state’s Senate Majority Leader Mike Shirkey (R) announced that Republicans plan to invoke a process that could allow them to bypass the governor’s veto and pass a package of “half a dozen” election-related bills. Under the state constitution, a relatively small group of voters can propose legislation through a petition and then this legislation can be enacted by the state legislature. Using this process, the GOP-controlled legislature could enact this package by a simple majority vote in both houses, and Whitmer would be powerless to veto it — although Democrats could potentially force a voter referendum on the GOP package.

Moreover, while it is not yet clear which proposals will be included in Shirkey’s half-dozen bills, some of the dozens of proposals from GOP lawmakers appear to serve no purpose other than to make voting onerous enough that it disenfranchises voters. A pair of bills that passed the state House, for example, could force at least some voters to show ID twice on two separate occasions — once at their polling place and again to a county clerk located at a central government office — or else their ballot will be tossed out.

The stakes in this fight are quite high, not just for Michiganders and their state politics but for national politics as well. Michigan had one of the closest US Senate races in the country in 2020 — a race that would have thrown control of the Senate to the GOP if Sen. Gary Peters (D-MI) had performed slightly worse. It’s also a key battleground state that former President Donald Trump won in 2016, and President Joe Biden won in 2020. If Biden does not win Michigan in 2024, his path to reelection looks grim.

While ballots were still being counted in the 2020 election, hundreds of Trump supporters — some of them carrying firearms — protested the count in the Democratic stronghold of Detroit. Republican officials in Wayne County, which includes Detroit, briefly tried to block certification of the vote tallies in that county, although they eventually backed down. After Aaron Van Langevelde, a state-level official on Michigan’s Board of State Canvassers, voted to certify Biden’s victory in the state as a whole, Republicans removed him from the board.

According to the Associated Press, Trump personally lobbied Republican officials in Michigan in an attempt to block Biden’s victory, even summoning members of the state legislature to the White House.

The new round of election legislation, in other words, might only disenfranchise small numbers of people, depending on which bills make it into law and how they’re applied. But they appear to be part of a broader effort to discredit elections won by Democrats, to place a thumb on the electoral scales in favor of Republicans, and to vindicate Trump’s lie that he, not Biden, won the 2020 election. And, in this closely divided state, even a small number of disenfranchised voters could swing an election.

So what is in the Michigan GOP’s package of bills?

It’s not yet clear which of the 39 bills proposed by state lawmakers Republicans plan to push. These bills include a wide range of proposals to make it harder to vote, including limiting the use of drop boxes to collect absentee ballots, imposing stricter ID requirements on voters, empowering partisan election observers, and requiring a supermajority on county election boards to agree to certify election results.

In a July 1 interview, however, Shirkey signaled that a voter ID requirement is likely to be part of the package, describing an ID requirement as “rock solid.” Voter ID laws require voters to show identification in order to vote. Republicans often defend these laws as necessary to prevent voter impersonation at the polls, but numerous studies and investigations show that such fraud is virtually nonexistent.

Still, generally they’re popular proposals, across the political spectrum — one recent poll shows 80 percent of American registered voters support voter ID.

The Michigan GOP’s leading voter ID proposal, however, goes far beyond simply requiring voters to show ID at the polls. Two bills, labeled SB 303 and SB 304, have already passed the state House, and they would effectively require an unknown number of voters to show ID twice, at two separate locations, in order to vote.

Under current law, Michigan voters who do not have identification may still vote if they sign an affidavit testifying that they lack such ID. SB 303 eliminates voters’ ability to sign such an affidavit, effectively requiring all voters to show ID. That’s fairly in line with other voter ID laws already adopted or under consideration in other states.

But SB 303 also requires every voter to sign a form before they can vote. The signature on this form must be examined by a poll worker and compared to “the elector’s digitized signature contained in the electronic poll book.” If, in the poll worker’s subjective determination, the signatures do not match, then the voter will be given a provisional ballot.

SB 304, meanwhile, lays out what happens to these provisional ballots. Essentially, a voter given such a ballot has six days to prove their identity and residency to the county or township clerk — something that they can do by showing many of the same forms of ID that they are already required to show at the polls.

Read together, the two bills create an absurd situation where some voters could be disenfranchised unless they make a special trip to the clerk’s office to show the same ID card that they already provided to the poll worker. Imagine, for example, that a voter shows their valid driver’s license at the polls, but a poll worker, for whatever reason, declares that the voter’s signature does not match. The voter then has less than a week to make a special trip to the clerk’s office to show the clerk the exact same driver’s license.

It’s not hard to see how such a system could be abused. A Republican poll worker might randomly force voters in a Democratic-leaning area to make the special trip to the clerk’s office. Or this poll worker might use race as a proxy to identify voters who are likely to be Democrats — perhaps only giving provisional ballots to Black voters.

Meanwhile, a third bill (this third bill has not passed either house), requires local election officials to appoint one Republican poll worker for every two Democrats in these roles. That could mean that, in a Democratic stronghold like Detroit, up to one-third of all voters could be subjected to an arbitrary signature-matching test administered by a GOP partisan.

Most of the voting restrictions circulating in the state legislature are more modest than SB 303 and 304. Many of them make relatively marginal incursions on voting, such as requiring ballot drop boxes to have video surveillance or prohibiting the secretary of state from sending unsolicited absentee ballot applications to voters. Other proposals are potentially more troubling, such as a bill that would give partisan poll watchers greater authority to challenge whether an individual voter is allowed to cast a ballot.

And it’s worth repeating that two bills that would give extraordinarily open-ended authority to poll workers acting in bad faith have already passed one house of the Michigan legislature. Should SB 303 and 304 become law in their current forms, they would immediately rank among the most troubling election laws in the country — potentially rivaled only by a Georgia law that allows the state GOP to effectively takeover local election boards that have the power to shut down polling places and disqualify voters.

Again, it’s still unclear what, exactly, will be in the GOP’s final package of changes to the state’s election law. In his July 1 interview, Shirkey said that “we could have used a few handwriting experts in this last election” to screen voters and that he does not oppose the House’s proposal “in principle.” But he also said that he is “not sure” if the signature requirement will be included in the GOP’s final package, and Republicans will have to “do what is possible.”

At the very least, however, much of the Michigan GOP appears to be setting its sights high as they pull this package together.

So why can’t the governor veto all of this?

The most significant announcement Shirkey made in his interview early this month was that voters should “keep their eyes and ears open for the potential for a citizen initiative” that will be “driven by” the state Republican Party. That opens the door to a Rube Goldberg-like process that Republicans may use to bypass Gov. Whitmer’s veto.

It works like this: Under Michigan’s constitution, a small minority of the electorate may propose laws, and these proposals will ordinarily be placed before voters as a ballot initiative. Other states, like California, also allow ballot initiatives. In Michigan, however, the state legislature may intervene midway through the process to turn a proposed ballot initiative into law. A small percentage of voters can propose something, and just over half of the statehouse can make it law. Moreover, the state constitution also provides that “no law initiated or adopted by the people shall be subject to the veto power of the governor.”

To begin this process, Republicans have to collect a number of signatures from Michigan voters totaling “not less than eight percent . . . of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected.” That works out to about 333,000 signatures in 2021. Once the petition process is complete, the state legislature has 40 session days to approve the law proposed by a petition drive, and the governor cannot veto.

Democrats can deploy a countermeasure against this maneuver. The state constitution also allows voters to implement a “referendum” against most laws passed by the legislature, including one that was originally proposed through the initiative process. To trigger a referendum, Democrats would have to collect signatures totaling 5 percent of the total votes cast in the last governor’s race — or a little more than 200,000 signatures.

Significantly, if Democrats trigger a referendum, the law is suspended until the entire electorate has an opportunity to weigh in on it during an election, and if a majority of the electorate rejects the law, it will never take effect.

Republicans, in other words, won’t be able to do whatever they want. But Democrats also cannot rest assured that Whitmer’s veto will prevent anti-democratic bills from becoming law. At the very least, it seems likely that fate of future elections in a crucial battleground state will rest on the outcome of a referendum.

And the outcome of that referendum could hinge on whether voters understand what exactly is in the GOP’s package of new election laws. If Michigan voters think this fight is primarily a referendum on voter ID, Republicans have a good chance of prevailing — a recent Monmouth University poll found that 80 percent of registered voters in the United States support requiring photo identification to vote.

If, on the other hand, voters believe that they are voting on a highly partisan set of proposals that could allow random poll workers to disenfranchise voters, then Republicans are probably less likely to succeed.

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