In this Feb. 12, 2019 file photo, state Senate Majority Leader Mike Shirkey, R-Clarklake, watches during the State of the State address at the state Capitol in Lansing, Mich. Michigan lawmakers plan to convene for the first time in weeks to lengthen Gov. Gretchen Whitmer's emergency declaration amid the coronavirus pandemic but are at odds over the extension and whether the session is even necessary. The Republican-led Legislature is scheduled to meet Tuesday, April 7, 2020, three weeks after last voting. Shirkey's spokeswoman said “He thinks we can come to some middle ground in terms of the extension, and that doesn't preclude it from being extended again if were necessary at some point.” Photo by Al Goldis via AP
In this Feb. 12, 2019 file photo, state Senate Majority Leader Mike Shirkey, R-Clarklake, watches during the State of the State address at the state Capitol in Lansing, Mich. Michigan lawmakers plan to convene for the first time in weeks to lengthen Gov. Gretchen Whitmer's emergency declaration amid the coronavirus pandemic but are at odds over the extension and whether the session is even necessary. The Republican-led Legislature is scheduled to meet Tuesday, April 7, 2020, three weeks after last voting. Shirkey's spokeswoman said “He thinks we can come to some middle ground in terms of the extension, and that doesn't preclude it from being extended again if were necessary at some point.”

Michigan voters overwhelmingly chose to expand access to ballot boxes in 2018. Now a loophole is allowing the GOP to propose stripping these rights with just 3% of Michiganders pushing for it. 

CANTON, Mich.—How do unpopular things become laws so often?

Getting things done in government is always a numbers problem. 

And thanks to a quirk of Michigan’s constitution, an unpopular package of highly restrictive voting laws being championed by the state’s Republicans could pass, with only 340,000 Michiganders signing on to a decision for all 10 million people living in the state. 

That would be like letting Grand Rapids decide how the rest of the state should vote—or in this case, shouldn’t vote.

To understand how that can be, state Sen. Dayna Polehanki (D-Canton) explained how the making laws usually works, and how Republicans are trying to circumvent that normal routine for their advantage.

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A bill starts with a certain number of sponsors, and a certain number of votes it needs, and the sponsors are supposed to convince enough other legislators of the bill’s merit that it can get passed. But in an era of extreme partisanship, that process becomes very predictable. If Republicans outnumber Democrats, like in Michigan’s Legislature, their bills just pass.

This can happen with or without public support. For instance, despite opposition from a growing consensus of Michiganders, the state Senate passed the first pieces of its 39-bill voting restrictions package in June over fervent objections from Democrats in the Senate. 

Seeing bills she thinks will harm Michiganders passing isn’t new for Polehanki. She’s in the minority party in Lansing, after all. But she usually knows that the threat of a veto by Gov. Gretchen Whitmer will rein in some of the more radical right-wing ideas offered by her colleagues. 

“Usually if we’re voting on something, they have the numbers to have the bill pass,” Polehanki explained. “They have 22 senators, we have 16 on the Democratic side, and they win every time. However, we have the governor’s veto pen.”

This, she explained, creates compromise and prevents one party from running roughshod over the entire state. Particularly on a publicly unpopular proposal, that dynamic is critical, she said.

But she can’t have confidence in that process today, because Republicans want to cut Whitmer out of the process entirely.

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Skipping the Governor’s Desk Altogether

If someone has an idea they want to see become a law, they can follow the process for a citizen initiative. These have been used to great effect by Michiganders to ensure things like digital privacy in 2020 or the right to recreationally use marijuana in 2018

This involves starting a petition, getting thousands of Michiganders to sign in agreement, and submitting that petition to state election officials so the entire state has a chance to either agree or disagree with the proposal.

Michigan has a process in its constitution that allows the Legislature to approve an idea the people submit without it needing to go to a ballot. In its intended use, this would take either uncontroversial proposals the legislature likes or things with such overwhelming popular support as to be certain to pass at the ballot box and make them law. That saves time, hassle, and expense both for the state and the voters.

None of that reflects the way Republicans are considering using the process today, Polehanki explained. And the reason it’s valuable right now is that laws enacted through this process don’t get signed by the governor at all.

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“The Michigan Republican Party can gather a few hundred thousand signatures, and use this initiative to bypass the governor’s veto pen and to put it straight to the Legislature who will enact it into law,” she said.

That means the package of highly restrictive voting laws being championed by the state’s Republicans could pass with only 340,000 Michiganders signing on. 

“So these bills that typically I wouldn’t worry too much about because the governor could veto them, there’s a bypass around all that,” said Polehanki. “And I don’t doubt the Republican Party will make this attempt ahead of possibly the 2022 elections.” 

There’s ample reason for Polehanki to have that concern.

‘An End Run Around Democracy’

In more than half a century, this strategy has only been used nine times to pass laws according to state data. And one of those times was another case of Republicans using the process in ways that seem counter to its purpose. 

In 2018, Michigan One Fair Wage had built a strong base of support and looked likely to pass a minimum wage increase that would, over time, bring Michigan’s minimum wage to $15 an hour, as well as ensure things like paid sick and family leave. Because things passed by voters are harder for Michigan’s Legislature to change, Republicans instead decided to adopt it into law themselves and dramatically alter it later. 

Then, within a month of the 2018 election and before Whitmer assumed office, Republicans and former Gov. Rick Snyder gutted the legislation, performing what was at the time referred to as “an end run around democracy.”

The use of the process in 2018 shows willingness and ability to use the process again to circumvent the democratic process, which Polehanki fears is almost certainly going to happen now.

That would allow Republicans to attempt to tilt the odds for partisan advantage before Whitmer’s re-election by making targeted efforts to keep Democrats away from the polls, all without Democrats having a chance to fight back.

READ MORE: Michigan Broke Voting Records in 2020. Now Republicans Want to Make Voting Harder.

The Department of Justice is monitoring the national wave of voter restrictions closely and has vowed to take action to defend the right to vote, and using this strategy might get them involved. But while they could take action on laws themselves, Polehanki doubts the undemocratic process being used could itself be addressed by federal officials. 

“I’m not sure what they can do with our constitution being the way it is with this citizen’s initiative,” she said. 

Instead, she thinks that the entire process is so infrequently used and so easily abused that it might be time to end it altogether, and require all citizen initiatives to go to the ballot.

“While that is in our constitution there’s nothing that can be done imminently,” Polehanki said. “We should change that. I regret that this time it’s being used this time to suppress Michiganders’ ease with which they can cast their ballot at the polls or by absentee.”