The world events that shaped Michigan’s tumultuous 2020 were themselves shaped by laws, some old and some new, that clarified the chaos of the year.
LANSING, Mich.—The past year has been shaped by innumerable factors that seem like they are straight from a novel, from deadly disease to political tensions to mourning even more deaths of Black and brown Americans at the hands of those sworn to protect and serve. But it would be an oversight to ignore the influence that the year has drawn from law. Law touches every aspect of life.
From the moment you wake up, laws ensure the structural safety of the room around you. Laws explain the rules of the road for your daily commute, and ensure your job pays certain wages while minimizing risks to your safety. Laws ensure food you eat for dinner is safe for consumption.
Government is so important because it both creates these laws and ensures that, for the most part, the influence of those laws remains invisible, unobtrusive in daily life. When it fails in that mission, or when a law fails to do what it’s designed to, the government exists to remedy that problem as well.
Laws helped define 2020, because they help define daily life in general. And as daily life became increasingly strange and demanding, the impact of laws on what 2020 was took on a unique flavor.
Michigan’s No-Reason Absentee Voting
When Michiganders expanded voting rights by ballot initiative in 2018, we already knew it was going to be a game-changer. Ending the requirement that people provide justification to vote absentee was going to make voting from home more common and, by extension, make the process of voting more convenient for Michiganders.
What no one foresaw in 2018 was that no-reason absentee voting was going to be instrumental to having a functioning democracy in Michigan in 2020.
In every election during the pandemic, Michiganders absolutely demolished voter turnout records, and did so while casting nearly half of their ballots by mail. This absolutely and perhaps irrevocably changed what elections look like in Michigan. As Allegan County resident Samantha Broadbent told The ‘Gander in August, being able to vote from her couch was not only more convenient, it allowed her the time and resources to really research candidates, making her a more informed and engaged voter.
Michigan’s Emergency Powers
Several very old laws on the books in Michigan grant the state the power to take extraordinary actions in response to a crisis. While these powers have been invoked fairly often and in a myriad of ways, few crises in Michigan’s history have been as long or pervasive as the coronavirus pandemic, and ones like the 1918 influenza epidemic predate a lot of those laws.
That meant Gov. Gretchen Whitmer had to enact hundreds of executive orders this year, compared to the fewer than 40 she issued in her first year in office.From taking extraordinary actions against price gouging to preventing evictions to limiting gatherings in which the disease could spread, the executive actions taken in response to an emergency that has killed nearly 10,000 Michiganders has been decisive and swift.
The state’s Supreme Court struck down one of the laws Whitmer drew her authority from, effectively ending the State of Emergency declaration in October. But, their ruling allowed other avenues to address the community health crisis, and the Michigan Department of Health and Human Services quickly used its own authority as the state’s public health agency to enact emergency restrictions to protect the public health.
The Doctrine of Qualified Immunity
Not all laws shaping 2020 had to do with the coronavirus pandemic, however. When a Minneapolis man was killed by a police officer who knelt on his neck for nearly nine minutes, a historic number of Americans took to the streets to show their grief and justified anger.
One point of frustration? That any attempt to hold Derek Chauvin responsible in civil court for the wrongful death of George Floyd would likely fail due to “qualified immunity.” A legal construct created by the United States Supreme Court, qualified immunity is the legal concept that people working for the government acting in good faith can’t be sued. The meaning of “good faith” expanded considerably with a 2018 case, Kisela v. Hughes, when a Tucson police officer responded to a call about a woman with a knife acting erratically. The officer eventually shot the woman, though she was not engaged in criminal activity. She survived to sue, and the case was heard by the Supreme Court.
The Court argued that the officer had no way of knowing he was violating someone’s rights when he shot the woman because courts had not articulated, in advance of the shooting, what right the shooting violated.
Disagreeing with the Court, Justice Sonia Sotomayor argued that the policy created an absolute shield later cops, like Chauvin, could rely on to avoid taking responsibility for wrongful death cases by employing circular logic—no right could be declared violated because courts had not recently declared that right could be violated in that specific way.
Applied to George Floyd, this meant Chauvin couldn’t be sued because no other cop had recently knelt on the neck of a victim for nine minutes and therefore killed the victim in police custody and been found guilty of violating the rights of their victim, so Chauvin, according to the Court, had no way of knowing this violated Floyd’s rights.
Retiring Michigan Rep. Justin Amash (I-Grand Rapids) introduced legislation to end the doctrine of qualified immunity, arguing that it is at the heart of the continued pattern of police using fatal force on Americans of color and not facing consequences for their actions.
“This pattern continues because police are legally, politically and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve,” Amash wrote in a letter to other members of Congress. “The rule has sharply narrowed the situations in which police can be held liable—even for truly heinous rights violations.”
Transgender Americans Gain Non-Discrimination Protections
In another case of the Supreme Court defining laws that changed 2020, the Court ruled in favor of the late Aimee Stephens of Reford, Michigan, in her case against a funeral home that fired her when she came out as transgender.
The lawsuit, Harris Funeral Homes v. EEOC, became a watershed moment in the LGBTQ rights movement. With the Court’s decision in the case, transgender Americans across the country could avail themselves of the protections in Title IX of the Civil Rights Act, which prevents discrimination on the basis of sex. Since, at its core, discrimination against transgender Americans is rooted on discrimination on the basis of what their sex is assumed to be, Title IX covers them.
The moment also acted as a passing of the torch from retired Justice Anthony Kennedy to other conservatives on the Court siding with LGBTQ issues. In fact, Justice Neil Gorsuch, who authored the majority opinion in Harris Funeral Homes, has been directly compared to Kennedy by GQ (though the publication noted that this decision might be an outlier and not an indication of the Court’s direction).
Guns Permitted in the Capitol Building
In this case, it may be less the laws that permit open carry in Michigan that are newsworthy, but the absence of laws that define where that right should be reasonably limited.
On April 30, 2020, armed gunmen stormed the Capitol in Lansing. They demanded to be let in to view proceedings in the state legislature, and when they were permitted to do so, they stood armed watch as the legislature acquiesced to their demands. Fearing for their lives, some legislators wore bulletproof vests.
This moment was attended by two brothers who later went on to be part of a plot to overthrow the state government and execute Gov. Whitmer, which the FBI foiled in October.
What much of the nation found surprising was that nothing done April 30 was criminal. It was not only legal to protest with live firearms on the Capitol lawn, but legal to wear, brandish and even hold firearms in the chambers where legislators met to conduct business. Lansing’s Capitol Building doesn’t even have metal detectors.
The Capitol Commission, a bipartisan group that essentially acts as custodians and curators for the building, met in May to discuss prohibiting the carry of assault rifles within the building. But their Zoom call was flooded with threats, racist rhetoric, and other acts of disruption. As of December, whether or not the commission can ban firearms without an act of law is still undecided.
This was such a shock that it even drew criticism from Fox News’ Sean Hannity.
“Everyone has the right to protest, protect themselves and try to get the country open,” Hannity said, showing video of Lansing protesters. “This, with the militia look here, and these long guns, uh… no. Show of force is dangerous. That puts our police at risk. And by the way, your message will never be heard, whoever you people are.”
Perhaps one of the laws to shape 2021 will address the oversight that allowed this incident to capture national attention.