JACK SPENCER COLUMN: Read the instructions – it’s still good advice

Back in the 1970s, a certain high school teacher would periodically give a test that the students could pass by just putting their names atop the page. It was a worthwhile test from which many could benefit today.

He would always instruct his students to carefully read the instructions before taking his tests. But the teacher also knew that, in spite of his doing this; many students didn’t bother to read the instructions. About once a year he’d hand out a test with written instructions that said something to the effect that – to pass the test, students should just print their names at the top – then wait until five minutes were left in scheduled hour-long class – and hand the text back in.

It probably comes as a surprise to no one that many students flunked the test because they hadn’t taken the time to read the instructions. Instead, they went ahead and labored on the test questions, when all they had to do was put their names on the top of the test sheet and relax for 55 minutes. This happened even though, at the beginning of each term, the teacher warned his classes that he might give them such a test.

In reality, of course, the test was an object lesson in the value of listening to the teacher and reading instructions. Both concepts were well worth emphasizing.

This story comes to mind in the context of the recent failure of those behind the Emergency Manager ballot referendum. Last week, the state Board of Canvassers deadlocked on certifying the referendum for the November ballot. The two Republican members of the board voted “no” and the two Democratic members voted “yes.” Such a deadlocked vote prevents certification.

Undoubtedly, the issue will now go to the courts, which could order the board to certify the proposal. However, it’s far from clear that this is what will happen, or – even if it does happen – how long the courts will take to make the decision.

If the measure were to get on the ballot and pass, it would repeal Michigan’s New Emergency Manager law. Emergency Managers are sent into local governments and school districts that are on the verge of bankruptcy. Their job is to turn the city or school district around and make them financially solvent.

Michigan has had an Emergency Manager law (P.A. 4) since the 1980s. Last year, Gov. Rick Snyder and the GOP-controlled legislature beefed up the law by giving Emergency Managers the power to cancel local labor contracts. This change is the crux of the issue and what the referendum is all about.

“Stand Up For Democracy,” the coalition backing the referendum, handed in 203,238 valid signatures, about 40,000 more than required to put the referendum question on the ballot. In spite of this, the refusal of the Republican board members to certify the referendum is not unprecedented. Past Boards of Canvassers have refused to certify ballot questions, even when enough valid signatures had been gathered.

Meanwhile, the new Emergency Manager law stays in place. Had the board certified the referendum, the new law would have been suspended until after the election.

For those who have watched the ballot question process over the years, what happened. Last week was almost predictable. “Stand Up For Democracy,” seemed to have struggled from the beginning. One sign that it might not have its act together was that it repeatedly set back the date on which it said the signatures would be handed in. But the big mistake it made was not taking the time to have its petitions checked over by the State Bureau of Elections ahead of time.

Michigan’s Bureau of Elections works with those who try to get proposals and referendums on the ballot to help them make sure their petitions are done correctly, as regards to form. Once the form of the petitions are correct, they can be submitted to the Board of Canvassers for approval. This step in the process takes place before the petition drives start. When ever a group trying to get a question on the ballot skips this easy step and just starts passing out petitions, it’s taking a big risk.

In the case of the Emergency Manager referendum, opponents of the drive discovered that the type face for the headings on the petition was smaller than required by law. This was enough to give the two GOP members of the board a “reason” to vote “no” on certification.

All of this might sound petty, but the whole idea behind getting the form of a petition approved ahead of time is to prevent such situations. One simply should not needlessly risk giving any of the canvassers a technical reason to vote “no” on certifying their ballot question.

It will be interesting to see how the courts react. It’s more usual for the courts to order the Board of Canvassers to certify a ballot proposal when the board had refused to do so for a political reason; not a technical reason.

Perhaps the classic example of this was the Michigan Civil Rights Initiative (MCRI). Some people might remember this as the anti-affirmative action proposal, although that’s technically incorrect. In 2004, the two Democratic members of the Michigan Board of Canvassers refused to vote for certification of the proposal, even though enough valid signatures were handed in.

The reason the Democrats refused to certify the proposal was based on the claim that those who circulated the petition misrepresented what the proposal would do. This was a political judgment – especially considering that the core dispute over the issue was which side actually represented the true meaning of “Civil Rights”

In 2004, the delay – caused by the refusal of the Democratic Board of Canvassers members to certify the proposal – prevented the MCRI proposal from getting on the ballot. In 2006, the two Democratic members once again refused to vote to certify. But then the courts stepped in and ordered them to do so – basically because the board members had wandered into an area (political speech) upon which they had no authority to rule. MCRI passed that November by a 58 to 42 percent margin.

In the case of this year’s Emergency Manager referendum, a technical reason – such as type face size – is exactly the sort of issue the Board of Canvassers has authority over. So this seemly petty reason for not certifying the referendum might stand a good chance of being upheld in the courts.

Ironically, the best ally those supporting the referendum might have going forward is the State Bureau of Elections. The Bureau recommended that the board certify the referendum on the grounds that the petition was “substantially in compliance” in regard to form. Michigan’s courts have a history of holding the opinions of the Bureau of Elections in high regard.

It appears that there are now three possible ways the issue would be resolved. The courts could step in and order the board to certify the referendum; the issue could get tangled in the courts so long that time runs out and it won’t get on the ballot – such as what happened to the MCRI in 2004; or the courts could decide the board was within its rights not to certify.

Regardless of what happens, the coalition backing the referendum could have saved itself a lot of time and expense by taking the simple step of getting the petition approved as to form in the first place.

Jack Spencer is Capitol Affairs Specialist for Capitol Confidential, an online newsletter associated with the Mackinac Center for Public Policy (MCPP). MCPP provides policy analysis. The political analysis represented in this column does not necessarily reflect the views of the Mackinac Center.

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Posted by Jack Spencer

Jack Spencer is Capitol Affairs Specialist for Capitol Confidential, an online newsletter by the Mackinac Center for Public Policy.

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