The Board of State Canvassers did not certify on Wednesday the union promoted "Protect Our Jobs" proposal for the Nov. 6 statewide ballot.
The two Republicans on the board voted "no," while the two Democrats voted "yes."
The tie vote means the question of whether residents will get to vote on the proposal will now be decided in the courts. The time frame for that to play out is a short one.
According to Michigan Secretary of State spokesman Fred Woodhams, the final date by which ballot proposals need to be ready is Sept. 7. But being ready includes having the ballot language approved, which is a process that often takes time.
"We have asked the courts to make these decisions by Aug. 27," Woodhams said. That's less than two weeks away.
Andrew Nickelhoff, the attorney for the unions, told reporters he planned to take the issue directly to the State Supreme Court, bypassing the usual Court of Appeals process. He also said he would file an appeal with the Court of Appeals as well.
"If the (state supreme) court agrees to take that up, the attorney for those opposed to putting the proposal on the ballot would then have a chance to file a response," said Pat Wright, senior legal analyst for the Mackinac Center for Public Policy. "So, we'll have to wait and see if the case goes straight to the Supreme Court or to the Court of Appeals."
A coalition of unions is backing the proposal with at least $8 million. This coalition says the proposal would make collective bargaining a right guaranteed in the Michigan constitution. However, when the proposal was first described by UAW boss Bob King, he called it a "Right-to-Work ban."
The proposal would do more, however, than just prevent Michigan from becoming a right-to-work state, a law that allows employees to opt out of paying union dues and fees. It would also reverse dozens of reforms made in 2011 and before.
The argument for preventing the proposal from being placed on the ballot was initiated about two weeks ago by Attorney General Bill Schuette. On Aug.3, in a letter to Gov. Rick Snyder, Schuette recommended that the Board of State Canvassers not approve the proposal for the ballot, in part, because it was "too sweeping" to be described in the required 100-words or less ballot language.
After Schuette's letter was publicized, a coalition of business groups, called "Citizens Protecting Michigan's Constitution," formally contested the proposal.
Schuette's argument was similar to the one used in 2008 that successfully knocked the so-called Reform Michigan Government Now proposal off the ballot. In that case, the State Supreme Court ruled that the proposal could not be summed up in 100-words or less and constituted a constitutional rewrite, not just an amendment. The Reform Michigan Government proposal also was backed by the unions.
Peter Ellsworth, an attorney with Dickinson-Wright PLLC, was a key player in the 2008 issue. According to Ellsworth, who is not involved with either side of the current union-backed POJ proposal, the argument against the POJ is much like the one used in 2008, and might even be stronger.
"Yes, they are alike regarding the 100-words and sweeping changes," Ellsworth said. "But the other thing Gary Gordon (attorney for Citizens Protecting Michigan's Constitution) argued is very significant. The proposal only cited the change to the section of the constitution that refers to Civil Service; it did not mention the other change in Section 4.
"This proposal would totally obliterate the part of the constitution that gives the legislature authority to pass laws pertaining to collective bargaining," he said. "It wouldn't change the wording, it would completely obliterate it. That fact should have been included in the proposal, but it wasn't."
In his testimony before the Board of State Canvassers, Gordon said the proposal was "fatally flawed." He also referred to it as a "Trojan horse."
"This is a back-door Trojan horse method to repeal or to alter or to amend numerous statutes," Gordon said.
Nickelhoff has called Schuette's arguments "baseless."