Sixth Circuit skeptical of Michigan lawmakers’ claim that term limits are too strict

CINCINNATI (CN) — Ten former Michigan state representatives, nine of whom are barred from seeking office again, argued on Wednesday before a Sixth Circuit panel that the state’s harsh term limits violate their First Amendment rights.

The group of lawmakers seek to invalidate a constitutional amendment passed by Michigan voters in 1992 that limits state representatives to two three-year terms and state senators to two four-year terms.

Under the law, once an individual serves the maximum number of terms, they are barred from seeking office again.

The amendment originally included restrictions on individuals elected to serve as U.S. Senators and Representatives, but those portions of the law were struck down as unconstitutional in the wake of the 1995 U.S. Supreme Court decision in U.S. Term Limits Inc. v. Thornton.

Ten legislators from both sides of the aisle filed a federal lawsuit against Michigan Secretary of State Jocelyn Benson in 2019, claiming the law prevents voters from electing the candidates of their choice.

U.S. District Judge Janet Neff, an appointee of President George W. Bush, granted the state’s motion for summary judgment and determined the lawmakers’ allegations had been decided in a previous case.

Neff cited the 1998 Sixth Circuit decision in Citizens for Legislative Choice v. Miller in her opinion, and emphasized the appeals court's ruling that voters do not have a right to voter for a specific candidate.

“The Sixth Circuit explained that the lifetime-term-limit provision did not impose a severe burden because it ‘burdens no voters based on ‘the content of protected expression, party affiliation, or inherently arbitrary factors such as race, religion, or gender,’’” she wrote.

The previous appeals court panel also correctly determined the law is narrowly tailored to serve legitimate state interests, according to Neff.

Included among these interests are “dislodging entrenched leaders, curbing special interest groups, and decreasing political careerism,” all of which are “well-known” sovereign interests, Neff ruled.

In their brief to the Sixth Circuit, the 10 legislators argued the law has merely “sucked legislative experience out of the legislature,” increased partisanship and led to a “dynastic” era that routinely involves members of a single family running for the same office.

They specifically attacked the lifetime ban imposed after a legislator has been termed out, which makes Michigan’s term limit laws the strictest in the country.

“While there are certainly public purposes that may warrant some constraint on a candidate’s unfettered right to run for office,” the lawmakers said, “those interests can be adequately served by more reasonable restrictions, as shown in every single other state that has adopted a term limits proposal.”

In the state’s brief to the appeals court, Michigan attorneys urged the panel to rely on the earlier decision in Miller, and called the current claims “indistinguishable” from those presented by voters in the 1998 case.

“Plaintiffs simply cannot demonstrate a severe burden,” the brief explained. “All the plaintiffs could exercise their associational rights and run for seats in the house in which they are not term limited. And when those opportunities are exhausted, they could run for state executive-level office, Congress or any number of local offices. In this way, [the law] does not unfairly or unnecessarily burden the ‘availability of political opportunity.’”

Attorney John Bursch argued on Wednesday on behalf of the legislators, and called Michigan’s restrictions a “pernicious burden” on his clients and others who are term-limited from running for office.

U.S. Circuit Judge John Nalbandian, a Donald Trump appointee, reminded Bursch the Sixth Circuit has “said time and time again” there is no constitutional right to run for office.

The attorney conceded the point, but said his clients sued to redress violations of their First Amendment rights of association and free speech.

“If [the restriction] is so bad, why don’t you change it?” Nalbandian asked.

“It’s difficult to persuade voters to give more time to people they don’t like, politicians,” Bursch replied.

The attorney repeatedly mentioned the “Goldilocks principle” during his arguments, in an effort to persuade the panel that Michigan’s lifetime ban is clearly too burdensome to pass constitutional muster.

All three judges seemed skeptical, however, including Senior U.S. Circuit Judge Ronald Gilman.

“It sounds like you’re fussing about the policy,” the Clinton appointee said, “We’re not here to set policy. … You don’t have a case that says ‘Goldilocks principle,’ do you?”

Michigan Assistant Attorney General Erik Grill argued on behalf of the state, urging the panel to uphold the district court’s decision based on the previous ruling in Miller.

Grill noted the restrictions have not changed in the 23 years since they upheld in the Sixth Circuit’s previous decision, and said he is unaware of any serious efforts by voters to alter them now.

During Bursch’s rebuttal time, U.S. Circuit Judge Amul Thapar, a Trump appointee, echoed his colleague’s sentiment about wading into legislative territory.

“You’re asking courts to get involved in policy decisions,” he said. “There’s no way we can rewrite the law.”

Bursch urged the panel to invalidate the lifetime ban, and said politicians on both sides of the aisle have issues with the restrictions.

Thapar stressed that voters clearly have no issue with the laws, and reminded the attorney his clients “are self-interested politicians.”

No timetable has been set for the court’s decision.

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