From typography to tumult: Michigan as battleground over democracy

Thanks to this exhaustive consideration, Viviano found himself with little choice but to dissent from the majority’s opinion on the case at hand: one allowing a constitutional amendment on access to abortion to appear on the November ballot. The amendment had been blocked by a state board ostensibly because some of the text of the amendment appeared on petitions without visible spaces, sortoflikethis.

In a footnote, Justice Richard Bernstein, who voted with the majority, disagreed with arguments like Viviano’s.

“As a blind person who is also a wordsmith and a member of this Court,” he wrote, “I find it unremarkable to note that the lack of visual spacing has never mattered much to me.”

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The fact that Bernstein dismissed the spaces-between-letters argument in a footnote, and that Chief Justice Bridget Mary McCormack spent very little time on it in her majority opinion, reflects an understandable view of why so much attention was paid to the spacing in the first place: It wasn’t about ensuring comprehension of the proposed amendment but, instead, about blocking it from the ballot by any means necessary.

“While I accept the assumption in the Court’s order that the challengers’ argument is arguably a challenge to the ‘form and content’ of the petition,” McCormack wrote in a footnote of her own, “I believe there is good reason to question whether this is the appropriate standard, and if so whether the challengers’ argument is truly such a challenge.”

In other words, she doubted whether the argument was being offered in good faith.

“Even though there is no dispute that every word appears and appears legibly and in the correct order, and there is no evidence that anyone was confused about the text, two members of the Board of State Canvassers with the power to do so would keep the petition from the voters for what they purport to be a technical violation of the statute,” McCormack wrote in concluding her opinion. “They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad.”

“What a sad marker of the times,” her opinion concludes.

That addendum is potent. It is a marker of the times, certainly, that the Board of State Canvassers should use technicalities to block multiple proposed amendments from the ballot. The other amendment rejected by the board last month would expand access to voting itself — meaning that the two Republicans who caused the board to deadlock on placing the amendments declined to allow voters to vote on whether it should be easier to vote.

This same board, you may recall, was in the spotlight after the 2020 election when certification of the state’s not-close vote for Joe Biden was at risk of being blocked by Republican objections. Ultimately, one of the board’s Republicans announced that the board had no power to block the certification even if it wanted to and voted to certify. The other Republican abstained; the state Republican Party later declined to renominate the one who backed certification to the board.

This is often what the right’s struggle for power looks like these days: introducing obstructions to voting or undermining election results.

There was another development on that second front this week as well. Matthew DePerno, the Republican nominee for Michigan attorney general in November, is under investigation for having participated in a plan to obtain and “investigate” voting machines in several counties. Because the investigation involves the state attorney general — an office held by his Democratic opponent — a special prosecutor was appointed to continue the probe.

DePerno seeks election as attorney general not despite his involvement in a scheme to question voting machines but largely because of it. He gained national attention in the wake of the 2020 election, including from Donald Trump, by elevating dubious and debunked claims about election fraud and the security of election systems. He excoriated state officials and the media as biased and corrupt in harsh terms, although no evidence of any significant fraud or malfeasance has ever been shown. A Republican-led committee in the state Senate even dismissed DePerno’s claims by name as “demonstrably false and based on misleading information and illogical conclusions.”

And then Republicans nominated him to serve as the state’s top law enforcement agent.

It’s clearly true that it’s advantageous for Michigan Democrats to have an abortion amendment on the ballot in November. An effort to allow the state to ban abortion access on the ballot in Kansas lost by a huge margin after turnout surged; Democrats would certainly like to see similar energy as the midterms approach. (Particularly since the Republican gubernatorial nominee, Tudor Dixon, has a hard-line position on access to abortion.) But that doesn’t detract from the fact that more than 700,000 people signed those petitions to have the opportunity to vote on the amendment.

None of them, it seems, were fazed by the lack of spaces — often, one might assume, for the same reason that people rarely object to the terms and services offered by software companies. Presented with the opportunity to vote on an amendment protecting access to abortion, about 1 out of every 13 Michiganders expressed a desire to do so. It took only two Republican bureaucrats to stand in their way.

Democracy is littered with chokepoints where norms and good faith keep the public will moving forward. In multiple ways, Michigan is being tested on how freely democracy in the state can flow.