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Michigan high court orders proposals to protect abortion and improve voting access on fall ballot

Republican canvassers said they could not approve the petitions because of spacing errors and vague wording but Chief Justice Bridget Mary McCormack said they had very limited power and urged them to perform their duties.

LANSING, Mich. (CN) — The Michigan Supreme Court ruled late Thursday that proposals to formally legalize abortion and to ease voting restrictions could be placed on the November ballot just hours before a state deadline.

“We direct the Board of State Canvassers to certify the…petition as sufficient for placement on the November 8 general election ballot,” the order stated.

When a state canvassing board deadlocked and rejected the proposals, Reproductive Freedom for All — a volunteer program to promote the abortion amendment — and Promote the Vote 2022, a pro-voting initiative supported by groups like the ACLU and NAACP, filed the request with the high court. The board deadlocked 2-2 along partisan lines, with the two Republican commissioners citing what they called spacing errors in the petitions.

Republican board members also claimed Promote the Vote did not successfully explain the ways it would amend the state's Constitution.

In the order, Chief Justice Bridget Mary McCormack said the power of the canvassing board was narrow and she appeared frustrated with their attempted overreach.

“I will…address one issue that ought to be clear but apparently isn’t — the board’s role in certifying petitions is very limited,” she wrote.

She added: “There is no dispute about the signatures or form of this petition. Rather, the challengers believe that the petition violates…the Michigan Constitution because its substance abrogates various provisions of the Constitution without publishing the provisions. This…legal question is far outside the board’s legal role (and expertise).”

Reproductive Freedom for All accumulated more than 750,000 signatures, attorneys for the group wrote, making it the largest number submitted for a ballot initiative in state history. State law required a minimum of about 425,000 valid signatures, and state officials determined last week that the petition contained nearly 600,000 valid signatures.

The group said the volume of signatories demonstrated “widespread grassroots support.”

Michigan Secretary of State Jocelyn Benson applauded the decision in a statement.

"Today’s rulings from the Michigan Supreme Court underscore that the role of the Board of State Canvassers under law is to affirm the will of the voters.”

She added: “That means certifying ballot proposals if and when a sufficient number of eligible citizens' signatures support the petition, just as the law compels them to certify election results based on the votes cast by the people of Michigan. I hope the board now resumes its longstanding practice of working within its authority under Michigan law."

In a dissenting opinion, Justice Brian K. Zahra lamented the deadlines and urged the state Legislature to do something about it.

“I renew my call to the Legislature to amend our state election laws to provide more time between the certification of candidates and policy questions to be placed on the general election ballot and the date by which the ballot must be finalized and sent for production,” he wrote.

On Wednesday, a judge struck down Michigan's 1931 anti-abortion law, months after suspending it. Court of Claims Judge Elizabeth Gleicher said the law, that was disregarded for decades before the U.S. Supreme Court overturned Roe v. Wade in June, violates the Michigan Constitution.

“A law denying safe, routine medical care not only denies women of their ability to control their bodies and their lives — it denies them of their dignity,” Gleicher wrote. “Michigan’s Constitution forbids this violation of due process.”

In August, Oakland County Circuit Court Judge Jacob James Cunningham granted Michigan Governor Gretchen Whitmer’s request for a preliminary injunction to replace a temporary restraining order he renewed a couple of weeks prior. Both orders prevented county prosecutors from pursuing criminal charges for abortions under a 1931 law, which criminalized abortions without exceptions until it was rendered unconstitutional by the Supreme Court’s 1973 Roe v. Wade ruling. 

“The decision to have, or not to have, a child overwhelmingly affects women, and not men, disproportionately,” Cunningham said.

As such, he found, Whitmer and her allies had adequately shown that a ban would harm women’s rights to due process and equal protection, and that enforcing it prior to a final decision would create legal uncertainty for healthcare providers and patients. 

During a hearing in August, Assistant Attorney Linus Banghart-Linn argued that since the medical field is highly regulated, enforcement of the 1931 law — which criminalized abortion without exceptions for rape or incest, and was later rendered unconstitutional by the 1973 Supreme Court ruling in Roe v. Wade — would cause medical providers to withdraw care for fear of punishment. He also argued the law violated due process.

“There is no greater violation of body integrity than I can think of…the criminal law enforcement authority for the state of Michigan, to come to a person who is pregnant and say, you must,…despite any health risks, despite physical, psychological [concerns], despite the advice of your physicians…you must remain pregnant [or risk] potential prosecution,” he said.

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