News Story

Recall Change Could Be Unconstitutional

Should government entities be given the power to stop recalls based on their interpretation of what is or isn't true?

That's the issue Michigan courts could eventually face concerning legislation that was signed by Gov. Rick Snyder Dec. 20.

House Bill 6060 was sponsored by Rep Anthony Forlini, R-Harrison Township.

In summary, the new recall law does the following:

  1. Require a recall petition to factually and clearly state each reason for the recall; 
  2. Require signature gathering in 60 days instead of 90;
  3. Prohibit recall campaigns of state senators within the first and last years of their four-year terms; and of representatives within the first six months and last six months of their two-year terms.
  4. Continue to allow county election commissions to decide if recall petitions will proceed against local officials; and
  5. Revise provisions regarding the counting of signatures on a recall petition to refer to a circuit court's determination as to the petition's factuality and clarity.

Whether a recall petition is factual is the issue that might be a violation of the state constitution. Article 8, Section 8 of Michigan's Constitution clearly asserts that those who attempt to recall an official don't have to justify their reasons, but only make them clear.

Leon Drolet, director of the Michigan Taxpayers Alliance, said the question of what is or isn't factual, is subjective. He said he doesn't trust government officials to be unbiased when supposedly attempting to determine what is or is not true.

"The last people we can trust on determining what we can or can't recall someone over are those in the political class," Drolet said.

Rep. Pete Lund, R- Shelby Township, voted for House Bill 6060 and defended it.

"I think that making sure petitions are factually correct isn't something that will bother the people of Michigan," Rep. Lund said. "Last time the Democrats started recalling people and attacking people who, in some cases, hadn't even done what the Democrats accused them of doing.

"I think if you're going to recall someone it should be for something they actually did," Rep. Lund said. "When a petition is handed to them, most people assume that what's in front of them is at least accurate."

Drolet counters with the argument that what is or isn't a fact is something government officials can misrepresent and often have misrepresented.

"It should be the right of the people to decide what they want to try to recall someone over, not some politically-connected judges." Drolet said. "In many cases they will have an obvious — or a not so obvious bias. But this legislation would let them determine what's true instead of the citizens determining it. It's not right they should be allowed to make this decision, which could even potentially involve some of the people they might be talking with right now at a Christmas party."

In practical terms, Drolet said the shorter window for collecting signatures would likely have a greater negative impact on potential recall efforts than the issue of factuality.

Rep. Lund acknowledged that there's a difference of opinion about the constitutionality of House Bill 6060.

"It could all come down to what the court decides," he said.

Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.