Citizens Protecting Michigan's Constitution v. Secretary of State

Michigan Supreme Court

Lansing, Michigan

Syllabus

Chief Justice: Justices:

Stephen J. Markman Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Kurtis T. Wilder

Elizabeth T. Clement

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:

prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

CITIZENS PROTECTING MICHIGAN’S CONSTITUTION v SECRETARY OF STATE

Docket No. 157925. Argued July 18, 2018 (Calendar No. 1). Decided July 31, 2018.

Citizens Protecting Michigan’s Constitution (CPMC), Joseph Spyke, and Jeanne Daunt

sought a writ of mandamus in the Court of Appeals ordering that defendants, the Secretary of

State and the Board of State Canvassers (the Board), reject an initiative petition filed by

intervening defendant Voters Not Politicians (VNP) to place on the November 2018 general

election ballot a proposed amendment of Article 4, § 6 of the 1963 Michigan Constitution that

would create an independent citizens commission to oversee legislative redistricting. Article 4,

§ 6 of the 1963 Michigan Constitution established a commission to regulate legislative

redistricting, but the Supreme Court subsequently declared that provision was not severable from

apportionment standards that were unconstitutional; accordingly, in more recent years, the

Legislature has overseen redistricting. VNP’s proposal sought to bring the commission in line

with constitutional requirements and revive its authority to set redistricting plans for the state

house, state senate, and federal congressional districts. VNP gathered sufficient signatures for

the petition to be placed on the ballot, but before the Board could certify the petition, plaintiffs

sought a writ of mandamus directing the Secretary of State and the Board to reject the VNP

proposal, arguing that the proposal was not an “amendment” of the Constitution that could be

proposed by petition under Article 12, § 2 of the 1963 Michigan Constitution but rather was a

“general revision” of the Constitution that could only be enacted through a constitutional

convention under Article 12, § 3. VNP and other parties moved to intervene as defendants and

to file a cross-complaint seeking a writ of mandamus to require that the proposal be placed on

the ballot. The Court of Appeals, CAVANAGH, P.J., and K. F. KELLY and FORT HOOD, JJ.,

rejected plaintiffs’ requested relief and granted the relief sought by intervening defendants,

ordering the Secretary of State and the Board to take all necessary measures to place the proposal

on the ballot. ___ Mich App ___ (2018) (Docket No. 343517). The Court of Appeals held that

the proposal was an amendment rather than a revision because no fundamental government

operations would be altered: the proposal would continue the redistricting commission, with

modifications, already in the Constitution; the proposal involved a single, narrow focus—the

independent citizens redistricting commission; and the Supreme Court would retain control over

challenges to redistricting plans. CPMC sought leave to appeal in the Supreme Court and

requested a stay of proceedings so that the Board would not certify the proposal while the case

remained pending. The Supreme Court denied the motion for a stay but granted leave to appeal

to consider whether the proposal was eligible for placement on the ballot as a voter-initiated

constitutional amendment under Article 12, § 2, or whether it was a general revision of the

Constitution and therefore ineligible for placement on the ballot. ___ Mich ___ (2018).

In an opinion by Justice VIVIANO, joined by Justices MCCORMACK, BERNSTEIN, and

CLEMENT, the Supreme Court held:

A voter-initiated amendment under Const 1963, art 12, § 2 is permissible if it proposes

changes that do not significantly alter or abolish the form or structure of the government in a

manner equivalent to creating a new constitution. Because VNP’s proposal would leave the

form and structure of the government essentially as it was envisioned in the 1963 Constitution, it

was not equivalent to a new constitution and was therefore a permissible amendment under

Article 12, § 2. Accordingly, the judgment of the Court of Appeals was affirmed.

1. Const 1963, art 1, § 1 provides that all political power is inherent in the people. The

people have chosen to retain for themselves, in Const 1963, art 12, § 2, the power to initiate by

petition proposed constitutional amendments that, if various requirements are met, will be placed

on the ballot and voted on at an election. Specifically, Const 1963, art 12, § 2 requires every

petition to include the full text of the proposed amendment and to be signed by registered

electors of the state equal in number to at least 10% of the total votes cast for Governor in the

most recent general gubernatorial election. Once the person authorized by law to receive the

petition determines that the petition signatures were valid and sufficient, the proposed

amendment is placed on the ballot. The Constitution also provides, in Const 1963, art 12, § 3,

that the question of a general revision of the Constitution shall be submitted to the electors of the

state every 16 years and at such times as may be provided by law.

2. In construing a constitutional provision, the objective is to determine the original

meaning of the text to the people at the time of ratification using the rule of common

understanding. To help discover the common understanding, constitutional convention debates

and the Address to the People, though not controlling, are relevant. The pertinent definitions of

“amendment” in dictionaries from the time Article 12, § 2 and its predecessor article in the 1908

Constitution were ratified did not directly address the breadth of the change that could be made

by amendment or provide any substantive limitations on amendments.

3. The Michigan caselaw construing the meaning of the term “amendment” in Article 12,

§ 2 was not controlling. In Citizens Protecting Michigan’s Constitution v Secretary of State, 280

Mich App 273 (2008), aff’d in result only 482 Mich 960 (2008), the Court of Appeals held that,

in order to determine whether a proposal effects a “general revision” of the Constitution rather

than an amendment of it, the Court must consider both the quantitative nature and the qualitative

nature of the proposed changes, specifically taking into account not only the number of proposed

changes or whether a wholly new constitution is being offered but also the scope of the proposed

changes and the degree to which those changes would interfere with or modify the operation of

government. In reaching this conclusion, the Court relied, in part, on Kelly v Laing, 259 Mich

212 (1932), and Sch Dist of City of Pontiac v City of Pontiac, 262 Mich 338 (1933), and also on

cases from other jurisdictions. However, Laing was clearly distinguishable because, while it

addressed the distinction between a “revision” and an “amendment,” it did so in the context of a

city charter under the Home Rule City Act, MCL 117.1 et seq., and that discussion was

unnecessary to resolving the case, and Pontiac Sch Dist summarily rejected the argument that a

proposed amendment amounted to a revision without any discussion of the text of the governing

constitutional provision or citation of any authority. Notably, the distinction between an

amendment and a revision was contained only in the parties’ arguments to the Court; speaking

for itself, the Pontiac Court did not actually embrace a dichotomy between amendments and

revisions but simply concluded that the proposal was not so dramatic a change as to “render it

other than an amendment.” At most, Pontiac suggested that there might be undefined limitations

on what could be achieved by an amendment. In Citizens, the Michigan Supreme Court had an

opportunity to resolve the case under the amendment/revision dichotomy but declined to do so,

affirming the result only and fracturing on the reasoning. The Court of Appeals again addressed

this issue in Protect Our Jobs v Bd of State Canvassers, unpublished per curiam opinion of the

Court of Appeals, issued August 27, 2012 (Docket No. 311828), which involved a CPMC

challenge to a proposal on the same grounds it asserted in Citizens and in this case: that the

proposal was a general revision of the Constitution under Article 12, § 3. The Court of Appeals

rejected CPMC’s challenge, using the “qualitative and quantitative” standard from Citizens and

concluding that although the proposal might affect various provisions and statutes, it was limited

to a single subject matter and changed only two sections of the Constitution, whereas the

proposal in Citizens sought to replace vast portions of the Constitution and massively modify the

structure and operation of Michigan’s government. However, on appeal, the Supreme Court did

not order briefing on the issue and did not address it.

4. The predecessor of Const 1963, art 12, § 2, which was ratified as Const 1908, art 17,

§ 2, initially gave the Legislature a veto over voter-initiated amendments before the election at

which the proposal would appear on the ballot and allowed the Legislature to submit alternative

or substitute amendments. However, the legislative veto was deleted by amendment in 1913.

That change, which removed the clearest and most significant substantive check on the petition

power, counseled against finding atextual limitations on voter-initiated amendments when

construing Const 1963, art 12, § 2. The critical limitation in Const 1963, art 12, § 2, considering

the amount of discussion it prompted at the 1961–1962 convention, was instead the procedural

requirement of obtaining a certain number of signatures. A proposal at the convention that

would have made it progressively easier to obtain enough signatures as the population increased

was struck after a delegate argued that the voter-initiated amendments should not be too easy to

accomplish because amendments, unlike statutory matter, should be important enough to merit

inclusion in a constitution. Thus, the convention decided to keep voter-initiated amendments

difficult because amendments, like the Constitution itself, were intended to deal with serious

matters. Accordingly, the convention imposed what it viewed as the clearest and most stringent

limitation on initiative amendments: a signature requirement.

5. The relevant substantive limitation on the scope of voter-initiated amendments arises

from the text of Article 12, § 2 when read together with Article 12, § 3. By adopting these two

different procedures for altering the Constitution, the framers intended that the mechanisms be

different in some regard. The result of a constitutional convention called to consider a “general

revision” under Article 12, § 3 is a proposed constitution or amendments adopted by the

convention and proposed to the electors. By contrast, if approved, a voter-initiated amendment

under Article 12, § 2 becomes part of the Constitution and abrogates or amends existing

provisions of the Constitution. Consequently, an amendment does not replace a constitution in

full, but simply adds to or abrogates specific provisions in an existing constitution. The fact that

only the convention has the power to propose a constitution implies that an initiative amendment

cannot do so, and because this limitation would be meaningless if it only required a new

constitution to be labeled as an amendment, it follows that an initiative amendment cannot

propose changes that are tantamount to a new constitution. The phrase “general revision”

supports this dichotomy between amendments and new constitutions. “General” means “dealing

with all or the overall, universal aspects of the subject under consideration,” and “revision” is

relevantly defined as “the act or work of revising,” which is how the term was characterized in

Laing and how it was described at the 1908 constitutional convention. The “revision” is simply

the process for reconsidering the Constitution as a whole; it is not, as some Court of Appeals

opinions suggest, a particular document or proposed change. Accordingly, the distinction

between the Article 12, § 3 convention process and the Article 12, § 2 amendment process was

that the former could produce a proposed constitution, while the latter was limited to proposing

less sweeping changes.

6. In determining whether a voter-initiated amendment is equivalent to a new

constitution, the number of changes is not dispositive, as even a limited number of changes can

have the effect of creating a new constitution. The most basic functions of a constitution are to

create the form and structure of government, define and limit the powers of government, and

provide for the protection of rights and liberties. These are the basic threads of a constitution,

and when they are removed, replaced, or radically rewoven, the whole tapestry of the

constitution may change. Therefore, changes that significantly alter or abolish the form or

structure of our government, in a manner equivalent to creating a new constitution, are not

amendments under Article 12, § 2. Contrary to the suggestion in Pontiac Sch Dist, it is not

necessarily the impact on the operations of government that matters. Further, a change that

recalibrates the relative power of the branches of government—such as limiting or taking away a

specific power from one branch—is not, absent a significant effect on the structure of

government, a change tantamount to a new constitution.

7. To determine whether VNP was proposing changes that would significantly alter or

abolish the form or structure of our government in a way that is tantamount to creating a new

constitution, it was necessary to examine Michigan law on redistricting and apportionment.

Michigan’s first three Constitutions gave the Legislature authority to redistrict. Because the

Legislature did not always carry out this responsibility, two competing voter-initiated

amendments were placed on the November 1952 ballot. One was approved, which wrote

directly into the Constitution the then-existing alignment of seats in the Senate provided for in

the 1952 amendment, added 10 seats to the House, and conferred upon the Board the obligation

to draw new house districts if the Legislature failed to act. When the 1963 Constitution was

ratified, it laid out a different framework for reapportionment and redistricting, under which the

members of the Legislature were to be elected according to the districts in which they resided.

The Constitution set forth apportionment factors and rules for individual districts, which were to

be redrawn after each federal census in accordance with formulas that considered land area and

population. The 1963 Constitution created a bipartisan commission on legislative apportionment

to draw the relevant district lines, with the Secretary of State being required to furnish all

necessary technical services and the Legislature being required to appropriate funds to enable the

commission to carry out its activities. If the commission could not agree on a plan,

commissioners could submit plans to the Supreme Court, which was required to determine which

plan complied most accurately with the constitutional requirements and direct that the plan be

adopted. Soon after the 1963 Constitution was ratified, the United States Supreme Court held in

Reynolds v Sims, 377 US 533 (1964), that the seats in both houses of a bicameral state legislature

must be apportioned on a population basis and that geographical considerations could no longer

play a role in apportionment if they produced population deviations between the districts, and it

invalidated Michigan’s apportionment rules shortly thereafter. As a result, the Michigan

Supreme Court ordered the commission to adopt a new plan for redistricting and apportionment

that complied with Reynolds. After several instances in which the commission failed to reach an

agreement and required the Michigan Supreme Court’s intervention, the Supreme Court

ultimately held in 1982 that the commission was not severable from the provisions that had been

declared unconstitutional, stating that changing how legislators are chosen was a decision of

enormous importance that the people should make and suggesting that the people could do so by

initiating a constitutional amendment. Because the initiative process was time-consuming and a

plan was needed in the meantime, the Supreme Court appointed an individual to oversee the

drawing of a redistricting and apportionment plan, but it stressed that this plan was merely a

stopgap until the people or their representatives in the other two branches of government acted.

It was not until 1996 that the Legislature codified apportionment standards and committed itself

to drawing districts in the future. Thus, the last time the voters had direct input on this issue,

they opted for apportionment and redistricting to be conducted by a commission, and the

Legislature now exercises a power that the Constitution of 1963 expressly denied to it—to draw

legislative districts—because the Constitution has never been amended to modify the

unconstitutional provisions concerning apportionment and redistricting.

8. VNP’s proposal would not significantly alter or abolish the form or structure of

government in a manner that is tantamount to creating a new constitution. The VNP amendment

would eliminate unconstitutional provisions that have remained in the Constitution and replace

them with standards that reflect many of the same principles that took the place of those

provisions, including adhering to federal law, requiring contiguous districts, respecting

municipal boundaries, and seeking reasonable compactness. While the proposal also contained

new items, such as considerations of partisan fairness, VNP’s proposed standards would

constitute neither a revolution in redistricting nor a transformation of Michigan’s form or

structure of government. Although the VNP proposal would affect the powers of all three

branches of government by adding limiting language to the vesting clauses of each branch, these

limitations were the result of VNP’s attempt to harmonize its changes with the rest of the

Constitution, and they would only place the proposal in jeopardy if the changes were equivalent

to the creation of a new constitution. The present Constitution does not accord the Legislature

any role in the redistricting or apportionment process; instead, as in VNP’s proposal, a

commission is placed in charge, and the commissions are materially similar. VNP’s proposal

seeks to ensure that the membership strikes a partisan balance and gives the Legislature a formal

role in this process, while it had no such role in the 1963 Constitution’s commission, but this

slightly increased level of participation by the Legislature would not come at the expense of

either of the other two branches of government. Although the Legislature has established the

standards and framework for redistricting and drafted the plans since 1996, that role was a

deviation from what the voters chose when they ratified the 1963 Constitution and was solely

due to a judicial remedy that was crafted when the unconstitutional apportionment standards the

commission was directed to implement were held not to be severable from the commission itself.

The executive branch would not be significantly affected by the proposal, which only slightly

expands the Secretary of State’s responsibilities. Any additional powers the executive currently

has in relation to redistricting flow not from the Constitution but from that same judicial remedy.

VNP’s proposal would only modestly change the judicial branch’s role in the redistricting

process. The conclusion that VNP’s proposal leaves the form and structure of the government

essentially as it was envisioned in the 1963 Constitution is consistent with the expectations of

key members of the 1961–1962 constitutional convention, the Michigan Supreme Court’s

suggestion in 1982 that Michigan’s apportionment system could be addressed through an

amendment to the Constitution initiated by the people, and the history of amendments to

Michigan’s Constitution, one of which expressly stripped the Legislature of the power to

redistrict in certain circumstances and gave it to an agency in the executive branch. Further,

other states have created independent redistricting commissions through voter-initiated

amendments, and proposals to create such commissions have appeared on ballots through the

initiative process numerous times in multiple states. Similarly, citizens in several states have

employed initiatives to accomplish redistricting. Also persuasive was Bess v Ulmer, 985 P2d

979 (Alas, 1999), in which the Alaska Supreme Court held that a proposed amendment before

the voters that would remove the reapportionment power from the executive branch, where the

state’s constitution had placed it, and transfer it to a “neutral body” was an amendment rather

than a revision. The framers of Michigan’s 1963 Constitution did not assign the apportionment

power to any elected body, and so the effect of the changes here would be even less significant

than those in Bess. Thus, the conclusion that VNP’s proposal was a permissible voter-initiated

amendment reflected the constitutional text, Michigan’s historical experience, logic, and the

wisdom of other states.

9. VNP’s proposal did not amount to an abrogation under Const 1963, art 12, § 2 by

requiring commission members to take an oath that is prohibited under the Oath Clause, Const

1963, art 11, § 1. In Tedrow v McNary, 270 Mich 332 (1935), this Court upheld a requirement

that candidates for a certain public office file an affidavit or other evidence of their educational

qualifications. Because the VNP proposal simply required candidates to attest to their

qualifications for a position on the commission—a requirement Tedrow allowed—the proposal

did not abrogate the Oath Clause by rendering it wholly inoperative.

Affirmed.

Chief Justice MARKMAN, joined by Justices ZAHRA and WILDER, dissenting, would have

held that the VNP proposal constituted a general revision of the Constitution and thus was

eligible for placement on the ballot only by the convention process of Const 1963, art 12, § 3.

The people have made it reasonably clear that while ultimately they do possess the authority to

restructure their own charter of government, as to the most fundamentally redefining of these

changes, this restructuring will be done only after reflective and deliberative processes of

decision-making. And Chief Justice MARKMAN was persuaded that the people would find

fundamentally redefining a restructuring of their Constitution that deprived them and their

chosen representatives of any role in the foundational process of our system of self-government:

the process by which election districts are established, citizens are joined together or separated

by political boundaries, and the building blocks of our governing institutions are determined.

Inserted in its place by the VNP proposal would be the governance of 13 randomly selected

people entirely lacking in any democratic or electoral relationship with the other 10 million

people of this state or their elected representatives. In the end, the people must be allowed to do

as they see fit; they can diminish the realm of governance of their representatives (and substitute

in its place an “independent” and unaccountable commission) and they can dilute the relationship

between themselves and their representatives, but the people, as they have spoken through their

Constitution, have also insisted that, before a change of this magnitude takes place, a serious and

considered public conversation must first take place, affording opportunities for sustained and

focused debate, give-and-take, compromise, and modification. Furthermore, references to the

fact that the commission is to be “independent” obscure the fundamental change that the

proposed measure would make to the people’s Constitution; the great value of our Constitution is

not the “independence” of public bodies but rather the separation of powers and the checks and

balances that define relationships between public bodies and thereby limit and constrain their

authority. While the VNP commission would indeed be “independent,” most conspicuously, it

would be “independent” of the people’s representatives in the Legislature, independent of the

people, and independent of the processes of self-government, especially the processes by which

the people, in whose name both VNP and the majority purport to speak, exert their impact upon

the “foundational” process of redistricting. Our constitutional heritage is poorly described by

advocates of this proposal as one predicated upon the “independence” of public bodies; it is far

better described as predicated upon the exercise of public authority that is limited, separated,

subject to appropriate checks and balances, and accountable to the citizenry. The proposed new

commission is grounded upon none of these. Whatever its merits, the creation of this

commission would effect “fundamental” change upon both our constitutional charter and the

system of government operating under this charter. It thus clearly warrants the kind of careful

deliberation best afforded by the processes of constitutional “revision” set forth in Article 12, § 3

of this state’s Constitution. For at least the past 85 years in Michigan, governing law concerning

direct constitutional change has recognized that alternative constitutional procedures exist for

instituting direct constitutional change and that determining which of these procedures is to be

used in a particular instance requires an assessment of the qualitative nature of the proposed

change, i.e., whether the changes would fundamentally alter the nature or operation of our

government. Chief Justice MARKMAN disagreed with the majority’s standard to the extent the

majority held that a proposed change must be tantamount to creating a new constitution in order

to be considered something other than an amendment. In this case, the VNP proposal would

strike all that is currently in the Constitution regarding redistricting and would create an

independent redistricting commission of a character effecting a fundamental change upon both

the Constitution and the system of government operating under that Constitution. The Court of

Appeals and the majority erred by assessing the nature of the change that would be effected by

the VNP proposal by comparing the commission to be established by the VNP with the

commission that had been created by the 1963 Constitution but thereafter was struck down. The

pertinent question was not whether replacing the commission created by the 1963 Constitution

with the VNP commission would fundamentally change the operation of government, but

whether removing the power to redistrict from the Legislature and conferring that power onto the

VNP commission would fundamentally change the operation of government because we are

obligated to consider how the government is currently operating in order to make the necessary

comparison, not how the government might once have operated, and it currently operates (as it

has almost always operated in the history of our state) with the Legislature responsible for

redistricting. The VNP proposal would affect the foundational power of government by

removing altogether from the legislative branch authority over redistricting and consolidating

that power instead in an independent commission made up of 13 randomly selected individuals

who are not in any way chosen by the people, representative of the people, or accountable to the

people, thereby effecting a fundamental alteration in the relationship between the people and

their representatives. The proposal would also modify the prefatory language of Articles 4, 5,

and 6 of the 1963 Constitution pertaining to the legislative, executive, and judicial powers,

suggesting that the commission itself is an entirely novel institution that would fundamentally

alter the Constitution’s separation of powers. Chief Justice MARKMAN therefore would have

held that because the VNP proposal, if adopted, would fundamentally change the operation of the

government, it was not an amendment that could be properly placed on the ballot by the initiative

process of Const 1963, art 12, § 2. Rather, the decision of the Court of Appeals should have

been reversed because the VNP proposal constituted a general revision that was only eligible for

placement on the ballot through the convention process of Const 1963, art 12, § 3.

Justice WILDER, joined by Justice ZAHRA, dissenting, concurred in full with Chief Justice

MARKMAN’s dissent but wrote separately to address an alternative basis for rejecting the VNP

proposal. Article 12, § 2 of the 1963 Constitution and MCL 168.482(3) both require that ballot

proposals that would amend Michigan’s Constitution republish any existing constitutional

provisions that the proposed amendment would alter or abrogate. Article 4, § 6(2)(A)(III) of the

VNP proposal, which is distinct from the qualifications for office listed in Article 4, § 6(1) of the

VNP proposal, would require that applicants to the independent citizens redistricting commission

attest under oath either that they affiliate or do not affiliate with one of the two major political

parties. An applicant’s failure to attest under oath regarding his or her political party affiliation

would render that applicant ineligible for a position on the commission under VNP proposal, art

4, § 6(2)(D)(I). Because this oath requirement in the VNP proposal would abrogate Article 11,

§ 1 of the 1963 Constitution, which forbids requiring additional oaths or affirmations as a

qualification for public office, VNP was required to republish that provision on its petitions.

Strict compliance with the republication requirement was required, and it was uncontested that

VNP failed to republish Article 11, § 1. Therefore, an order of mandamus should have issued

directing the rejection of the VNP proposal.

©2018 State of Michigan

Michigan Supreme Court

Lansing, Michigan

OPINION

Chief Justice: Justices:

Stephen J. Markman Brian K. Zahra

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Kurtis T. Wilder

Elizabeth T. Clement

FILED July 31, 2018

STATE OF MICHIGAN

SUPREME COURT

CITIZENS PROTECTING MICHIGAN’S

CONSTITUTION, JOSEPH SPYKE, and

JEANNE DAUNT,

Plaintiffs-Appellants,

v No. 157925

SECRETARY OF STATE and BOARD OF

STATE CANVASSERS,

Defendants/Cross-

Defendants-Appellees,

and

VOTERS NOT POLITICIANS BALLOT

COMMITTEE, d/b/a VOTERS NOT

POLITICIANS; COUNT MI VOTE, d/b/a

VOTERS NOT POLITICIANS; KATHRYN

A. FAHEY; WILLIAM R. BOBIER; and

DAVIA C. DOWNEY,

Intervening Defendants/Cross-

Plaintiffs-Appellees.

BEFORE THE ENTIRE BENCH

VIVIANO, J.

The question in this case is whether the voter-initiated amendment proposed by

intervening defendant Voters Not Politicians (VNP) should be placed on the ballot. VNP

launched a petition drive to propose an amendment that would reestablish a commission

to oversee legislative redistricting. Plaintiffs brought suit to stop the petition from being

placed on the ballot, making the now familiar argument that the proposed amendment is

actually a “general revision” that can only be enacted through a constitutional

convention.

We took this case to determine whether the VNP petition is a constitutionally

permissible voter-initiated amendment under Const 1963, art 12, § 2. To answer this

question, we must fulfill our Court’s most solemn responsibility: to interpret and apply

the pertinent provisions of our Constitution. After closely examining the text, structure,

and history of the Constitution, we hold that, to be permissible, a voter-initiated

amendment must propose changes that do not significantly alter or abolish the form or

structure of the government in a manner equivalent to creating a new constitution. We

reach this conclusion for the following reasons:

 The text of the relevant constitutional provisions, Const 1963, art 12, §§ 2 and

3, makes it clear that a constitutional convention is required to produce a new

constitution. (See pages 20 through 31 of this opinion.)

 The primary substantive limitation in the text of the predecessor provision to

Const 1963, art 12, § 2 originally imposed on voter-initiated amendments was

removed more than 100 years ago. (See pages 20 through 22 of this opinion.)

 Our caselaw on this topic—undeveloped and largely not on point—fails to

establish any controlling standard in this area. (See pages 12 through 19 of this

opinion.)

2

In this case, VNP’s amendment does not propose changes creating the equivalent

of a new constitution:

 VNP’s proposed redistricting commission is materially similar to the

commission provided for in our current Constitution, and VNP’s proposed

redistricting standards are similar to the ones presently used. (See pages 38

through 44 of this opinion.)

 VNP’s proposal does not substantially change the powers of the three branches

of government when compared to where the people placed those powers in the

1963 Constitution. (See pages 44 through 50 of this opinion.)

 Finally, treating VNP’s proposal as an amendment accords with the stated

expectations of key delegates to the 1961-1962 constitutional convention,

statements from this Court on this very topic, and the treatment of this issue by

other states. (See pages 50 through 55 of this opinion.)

Therefore, we affirm the judgment of the Court of Appeals that VNP’s proposal is a

permissible voter-initiated amendment.

I. FACTS AND PROCEDURAL HISTORY

VNP is a ballot-question committee. It filed with defendant Secretary of State the

initiative petition at issue in this case. The initiative proposal would, among other things,

amend Const 1963, art 4, § 6, which established a commission to regulate legislative

redistricting. The commission prescribed by our present Constitution is inactive because

this Court declared that it could not be severed from apportionment standards contained

in the Michigan Constitution that had been held to be unconstitutional, as explained

further below.1 After that ruling, this Court oversaw redistricting until the Legislature

1

In re Apportionment of State Legislature—1982, 413 Mich 96; 321 NW2d 565 (1982).

3

took control of the process. VNP’s proposal would bring Michigan’s constitutional

redistricting standards in line with federal constitutional requirements and revive the

redistricting commission’s authority to set redistricting plans for the state house, state

senate, and federal congressional districts.

A sufficient number of registered electors signed the petition for it to be placed on

the November 2018 general election ballot. Before the Board of State Canvassers could

certify the petition for placement on the ballot,2 plaintiff Citizens Protecting Michigan’s

Constitution (CPMC), along with other plaintiffs,3 filed the present complaint for a writ

of mandamus directing the Secretary of State and the Board to reject the VNP proposal.

CPMC argued that the proposal was not an amendment of the Constitution that could be

proposed by petition under Const 1963, art 12, § 2; rather, the proposal amounted to a

“general revision” of the Constitution and could be enacted only through a constitutional

convention under Const 1963, art 12, § 3. The Court of Appeals granted the request by

VNP and other parties4 to intervene as defendants and to file a cross-complaint seeking a

writ of mandamus requiring the proposal to be placed on the ballot.

In a unanimous published opinion, the Court of Appeals rejected plaintiffs’

requested relief and granted the relief sought by intervening defendants, ordering the

Secretary of State and the Board “to take all necessary measures to place the proposal on

2

MCL 168.477.

3

While multiple plaintiffs appear in the action, for ease of reading we will refer to CPMC

alone.

4

Again, we will refer only to VNP and not the other parties.

4

the November 2018 general election ballot.”5 The Court noted that our courts have long

distinguished between an “amendment” and a “revision.”6 The former was a narrower

concept focusing on specific changes to the Constitution, while the latter was a more

comprehensive modification of fundamental government operations.7 To determine if a

particular proposal changed the fundamental nature of the government, the Court of

Appeals considered the quantitative and qualitative features of the proposal.8

Comparing the present proposal to those addressed in past cases, the Court

observed that the proposal would continue, with modifications, the redistricting

commission already in the Constitution (although not enforced).9 Also, the proposal

“involve[d] a single, narrow focus—the independent citizen redistricting commission.”10

While the proposal reduced this Court’s oversight of redistricting plans from the level

contemplated by the present Constitution, our Court would nonetheless retain control

5

Citizens Protecting Michigan’s Constitution v Secretary of State, ___ Mich App ___

(2018), order entered June 7, 2018 (Docket No. 343517).

6

Citizens Protecting Michigan’s Constitution v Secretary of State, ___ Mich App ___,

___; ___ NW2d ___ (2018) (Docket No. 343517) (CPMC); slip op at 15.

7

Id. at ___; slip op at 16.

8

Id. at ___; slip op at 16-17, citing Citizens Protecting Michigan’s Constitution v

Secretary of State, 280 Mich App 273, 305; 761 NW2d 210 (2008), aff’d in result only

482 Mich 960 (2008). This 2008 Court of Appeals case and its affirming order will be

referred to as Citizens throughout this opinion.

9

CPMC, ___ Mich App at ___, ___; slip op at 8 & n 21, 18-19.

10

Id. at ___; slip op at 18.

5

over challenges to redistricting plans.11 Regarding quantitative considerations, the Court

of Appeals noted the number of words the proposal would add to the Constitution (4,834)

and the fact that 11 sections would be changed across 3 articles of the Constitution.12

None of this, however, was enough to convince the Court that fundamental government

operations would be altered. Thus, the proposal was an amendment that could be brought

by petition, as it had been.

CPMC sought leave to appeal here and requested a stay of proceedings below so

that the Board would not certify the proposal while the case remained pending. We

denied the motion for a stay,13 but we granted leave to appeal to consider “whether the

proposal at issue is eligible for placement on the November 2018 general election ballot

as a voter-initiated constitutional amendment under Const 1963, art 12, § 2, or whether it

is a revision to the Constitution and therefore is ineligible for placement on the ballot.”14

11

Id. at at ___; slip op at 19.

12

Id. at at ___; slip op at 20.

13

Citizens Protecting Michigan’s Constitution v Secretary of State, ___ Mich ___; 912

NW2d 181 (2018).

14

Citizens Protecting Michigan’s Constitution v Secretary of State, ___ Mich ___ (2018)

(Docket No. 157925).

6

II. STANDARD OF REVIEW

A lower court’s decision on whether to grant a writ of mandamus is reviewed for

an abuse of discretion.15 To the extent that a request for a writ of mandamus involves

questions of law, we review them de novo.16

III. ANALYSIS

A. CONSTITUTIONAL INTERPRETATION

Our Constitution is clear that “[a]ll political power is inherent in the people.”17

The people have chosen to retain for themselves, in Const 1963, art 12, § 2, the power to

initiate proposed constitutional amendments that, if various requirements are met, will be

placed on the ballot and voted on at election time. It has been observed that “there is no

more constitutionally significant event than when the wielders of ‘[a]ll political power’

under that document, Const 1963, art 1, § 1, choose to exercise their extraordinary

authority to directly approve or disapprove of an amendment thereto. Const 1963, art 12,

§§ 1 and 2.”18 In this case, we must determine the scope of the voters’ power to initiate

amendments.

15

See People ex rel King v Wayne Circuit Judge, 41 Mich 727; 49 NW 925 (1879).

16

Bonner v City of Brighton, 495 Mich 209, 221; 848 NW2d 380 (2014).

17

Const 1963, art 1, § 1.

18

Blank v Dep’t of Corrections, 462 Mich 103, 150; 611 NW2d 530 (2000) (MARKMAN,

J., concurring). Indeed, Michigan is one of the leading states when it comes to direct

democracy reforms. In addition to retaining the right to amend the Constitution by direct

initiative, the people of Michigan have also reserved the power to propose and enact

statutes by initiative, Const 1963, art 2, § 9; to reject statutes by referendum, id.; and to

recall elected officials, Const 1963, art 2, § 8. Michigan is one of only eight states whose

people have retained each of these forms of direct democracy. See National Conference

7

In answering this question, we do not consider whether the proposed amendment

at issue represents good or bad public policy.19 Instead, we must determine whether the

amendment meets all the relevant constitutional requirements.20 There may be an

“overarching right” to the initiative petition, “but only in accordance with the standards

of the constitution; otherwise, there is an ‘overarching right’ to have public policy

determined by a majority of the people’s democratically elected representatives.”21 In

particular, we have stated that the “right [of electors to propose amendments] is to be

exercised in a certain way and according to certain conditions, the limitations upon its

exercise, like the reservation of the right itself, being found in the Constitution.”22

of State Legislatures, Initiative and Referendum States

<http://www.ncsl.org/research/elections-and-campaigns/chart-of-the-initiative-states.aspx>

(accessed July 30, 2018) [http://perma.cc/H7PP-NHJQ]; National Conference of State

Legislatures, Recall of State Officials <http://www.ncsl.org/research/elections-and-

campaigns/recall-of-state-officials.aspx (accessed July 30, 2018) [http://perma.cc/3UVQ-

CY7Y]. After a 1913 amendment removing legislative oversight of the initiative process,

the initiative “has proven extremely popular,” according to a study prepared for the

Constitutional Convention Preparatory Commission, adding that “[i]t is among the most

used of Michigan’s devices for direct government.” McHargue, Direct Government in

Michigan (1961), p 19.

19

See Mich United Conservation Clubs v Secretary of State, 464 Mich 359, 368-369; 630

NW2d 297 (2001) (YOUNG, J., concurring).

20

Cf. id. at 389 (“[T]he people’s ability to decide [whether to retain a statute] by the

referendum process is not infinite; rather, it is circumscribed by the limitations placed in

the Michigan Constitution.”).

21

Id. at 393 (MARKMAN, J., concurring).

22

Scott v Secretary of State, 202 Mich 629, 643; 168 NW 709 (1918); see also Protect

Our Jobs v Bd of State Canvassers, 492 Mich 763, 772; 822 NW2d 534 (2012) (“This

Court has consistently protected the right of the people to amend their Constitution in this

8

Our inquiry here, then, is to determine the extent of the people’s right to initiate

constitutional amendments and whether any clear limitations may be found in the

Constitution.23 As with any constitutional provision, the objective of our interpretation

“ ‘is to determine the text’s original meaning to the ratifiers, the people, at the time of

ratification.’ ”24 The primary rule is that of “ ‘common understanding,’ ” as Justice

COOLEY explained long ago:

A constitution is made for the people and by the people. The

interpretation that should be given it is that which reasonable minds, the

great mass of the people themselves, would give it. “For as the

Constitution does not derive its force from the convention which framed,

but from the people who ratified it, the intent to be arrived at is that of the

people, and it is not to be supposed that they have looked for any dark or

abstruse meaning in the words employed, but rather that they have accepted

them in the sense most obvious to the common understanding, and ratified

the instrument in the belief that that was the sense designed to be

conveyed.”[25]

way, while enforcing constitutional and statutory safeguards that the people placed on the

exercise of that right.”).

23

Such a clear limitation could, for example, look like the one we addressed in Mich

United Conservation Clubs, 464 Mich 359. In that case, we examined Const 1963, art 2,

§ 9, which states that the constitutional referendum power “does not extend to acts

making appropriations for state institutions . . . .” We had little trouble deciding that an

appropriation to the state police was, under the constitutional exemption, not subject to

referendum. No analogous provision appears in Article 12, § 2.

24

People v Tanner, 496 Mich 199, 223; 853 NW2d 653 (2014) (citation omitted).

25

Federated Publications, Inc v Bd of Trustees of Mich State Univ, 460 Mich 75, 85; 594

NW2d 491 (1999), quoting 1 Cooley, Constitutional Limitations (6th ed), p 81 (quotation

marks and citations omitted).

9

To help discover the “common understanding,” this Court has observed “that

‘constitutional convention debates and the address to the people, though not controlling,

are relevant.’ ”26

B. OVERVIEW OF THE AMENDMENT AND REVISION PROCESS

Three basic procedures allow for alterations of the Constitution. The first, not

directly relevant here, provides for “amendments” proposed in the Senate or House and

approved by two-thirds of the members in each chamber, then submitted to the voters for

approval.27 Const 1963, art 12, § 2 provides the second manner of altering the

Constitution, which is the one VNP attempted here: “Amendments may be proposed to

this constitution by petition of the registered electors of this state.”28 “Every petition

shall include the full text of the proposed amendment, and be signed by registered

electors of the state equal in number to at least 10 percent of the total vote cast” for

Governor in the most recent general gubernatorial election.29 Once the “person

authorized by law to receive such petition” determines that the petition signatures were

valid and sufficient, the proposed amendment is placed on the ballot.30 Finally, under

26

Tanner, 496 Mich at 226, quoting People v Nash, 418 Mich 196, 209; 341 NW2d 439

(1983). Indeed, this Court has stated that convention records may be “highly valuable.”

Tanner, 496 Mich at 226 n 20. Of course, we recognize that this evidence cannot be used

to contradict a limitation that appears in the constitutional text.

27

Const 1963, art 12, § 1.

28

Const 1963, art 12, § 2.

29

Id.

30

Id.

10

Const 1963, art 12, § 3, the third manner of changing the Constitution is by constitutional

convention.31 Every 16 years, “and at such times as may be provided by law, the

question of a general revision of the constitution shall be submitted to the electors of the

state”; if the voters vote in favor of performing a “general revision,” a constitutional

convention is convened for that purpose.32

We have explained that the adoption of the initiative power, along with other tools

of direct democracy, “reflected the popular distrust of the Legislative branch of our state

government.”33 While the right to propose amendments by initiative must be done

according to constitutional requirements, we have observed that “it may be said,

generally, that [the right] can be interfered with neither by the legislature, the courts, nor

31

Const 1963, art 12, § 3.

32

Id.

33

Woodland v Mich Citizens Lobby, 423 Mich 188, 218; 378 NW2d 337 (1985) (“ ‘The

initiative found its birth in the fact that political parties repeatedly made promises to the

electorate both in and out of their platforms to favor and pass certain legislation for which

there was a popular demand. As soon as election was over their promises were forgotten,

and no effort was made to redeem them. These promises were made so often and then

forgotten that the electorate at last through sheer desperation took matters into its own

hands and constructed a constitutional procedure by which it could effect changes in the

Constitution and bring about desired legislation without the aid of the legislature.’ ”),

quoting Hamilton v Secretary of State, 227 Mich 111, 130; 198 NW 843 (1924); see also

1 Proceedings and Debates of the Constitutional Convention of the State of Michigan

1907-1908, p 590 (“The trouble is not with the representative government, it is with this

eternal mis-representative government . . . . We want the initiative on constitutional

amendments why? Because we want the legislature to sometimes pay some attention to

the voice of the people, and . . . this right in the people is necessary to a proper regulation

of the legislature.”) (statement of Delegate Frank Pratt).

11

the officers charged with any duty in the premises.”34 Indeed, we have held that Article

12, § 2 is self-executing,35 although the Constitution explicitly allows the Legislature to

prescribe by law procedures regulating the initiative.36

C. LIMTIATIONS ON VOTER-INITIATED AMENDMENTS

The scope of the initiative amendment process and its relation to the “general

revision” process is at the heart of this case. How extensive can a voter-initiated

amendment be, and does the Constitution place any relevant subject matter limitations on

such amendments?

1. CASELAW

We will begin with our caselaw on this topic, which ultimately proves

unilluminating. There is no controlling authority from this Court construing the meaning

of the term “amendment” in Article 12, § 2. The issue has been raised twice in the last 10

years, but neither case yielded a majority opinion from this Court construing the term

“amendment” in this context. In Citizens,37 the Court of Appeals addressed this issue for

the first time. In that case, a group called Reform Michigan Government Now! (RMGN)

submitted an initiative petition proposing a vast array of changes to Michigan’s

34

Scott, 202 Mich at 643.

35

Ferency v Secretary of State, 409 Mich 569, 590-591; 297 NW2d 544 (1980).

36

Consumers Power Co v Attorney General, 426 Mich 1, 7-8; 392 NW2d 513 (1986).

37

Citizens, 280 Mich App 273.

12

Constitution.38 CPMC argued that “the RMGN initiative petition [was] not eligible to be

placed on the ballot because it [was] not merely an ‘amendment’ to the constitution, but

[was] a ‘general revision’ . . . that only a constitutional convention [could] accomplish.”39

The Court distinguished an “amendment” from a “general revision” and held:

[I]n order to determine whether a proposal effects a “general revision” of

the constitution, and is therefore not subject to the initiative process

established for amending the constitution, the Court must consider both the

quantitative nature and the qualitative nature of the proposed changes.

More specifically, the determination depends on not only the number of

proposed changes or whether a wholly new constitution is being offered,

but on the scope of the proposed changes and the degree to which those

changes would interfere with, or modify, the operation of government.[40]

In reaching this conclusion, the court reviewed: (1) the text of the constitutional

provisions at issue;41 (2) two cases from this Court—one interpreting a city charter under

the Home Rule City Act, MCL 117.1 et seq.,42 and one interpreting the predecessor

provisions of the 1908 Michigan Constitution;43 and (3) several cases from other

38

By the Court of Appeals’ count, the RMGN initiative petition sought to alter four

separate articles of the Michigan Constitution and proposed at least 29 separate changes.

Id. at 279-281 (listing the proposed changes).

39

Id. at 281-282.

40

Id. at 305.

41

The Court of Appeals did not do an extended exegesis of the constitutional text and

concluded that dictionary definitions from the time of ratification, “[w]hile somewhat

helpful to the analysis, . . . do not completely reveal the differentiation that was intended

by the framers of the constitution from their use of the words ‘amendment’ and

‘revision.’ ” Id. at 295.

42

See Kelly v Laing, 259 Mich 212; 242 NW 891 (1932).

43

See Sch Dist of City of Pontiac v City of Pontiac, 262 Mich 338; 247 NW 474 (1933).

13

jurisdictions, including two leading cases decided by the California Supreme Court.44

The Court “agree[d] with the reasoning of these decisions” and found them “to be

consistent with Michigan law as stated in Laing and Pontiac School Dist.”45

Much of the Court of Appeals’ analysis hinged on Laing and Pontiac Sch Dist, so

it is worth considering whether those cases did, in fact, establish the above standard, and

whether they are binding or persuasive authority. Despite the Court of Appeals’ reliance

on Laing and Pontiac Sch Dist, we find these cases to be of limited value on this topic.

Laing is clearly distinguishable because, while it addressed the distinction between a

“revision” and an “amendment,” it did so in the context of a city charter under the Home

Rule City Act.46 And, in any event, its discussion was unnecessary to resolving the case,

since it occurred immediately after the Court’s holding that “[t]he petition on its face is

not in the form required by law, and raised no duty in defendants to provide for an

election.”47 We agree with the Solicitor General that this case is not binding; however,

the Court’s opinion does give some insight into the plain meaning of the terms

“amendment” and “revision” 24 years after the 1908 Constitution was ratified:

“Revision” and “amendment” have the common characteristics of

working changes in the charter and are sometimes used inexactly, but there

is an essential difference between them. Revision implies a re-examination

44

See McFadden v Jordan, 32 Cal 2d 330; 196 P2d 787 (1948); Livermore v Waite, 102

Cal 113, 118-119; 36 P 424 (1894).

45

Citizens, 280 Mich App at 304-305.

46

Laing, 259 Mich at 214.

47

Id. at 216.

14

of the whole law and a redraft without obligation to maintain the form,

scheme, or structure of the old. As applied to fundamental law, such as a

constitution or charter, it suggests a convention to examine the whole

subject and to prepare and submit a new instrument, whether the desired

changes from the old be few or many. Amendment implies continuance of

the general plan and purport of the law, with corrections to better

accomplish its purpose. Basically, revision suggests fundamental change,

while amendment is a correction of detail.[48]

Nine months later, in Pontiac Sch Dist, this Court again addressed the distinction

between an “amendment” and a “revision,” this time in the context of a challenge to an

amendment of the Constitution proposed under Article 17, § 2 of the 1908 Constitution,

the predecessor to Article 12, § 2 of the 1963 Constitution.49 Without any discussion of

the text of the provision, or citation of any authority (notably absent was any citation of

Laing, decided less than a year earlier), the Court summarily rejected the argument that

the amendment amounted to a revision because it “does not so interfere with or modify

the operation of governmental agencies as to render it other than an amendment by way

of an addition to the Constitution.”50 It is hard to glean much meaning from this

statement, since the Court did not purport to set forth a standard to govern this question

48

Id. at 217. Laing is noteworthy for another reason: in further dicta, the Court indicated

that it considered an increase in the number of city commissioners and a change in the

way their districts were drawn as properly the subject of an amendment to the city

charter. See id. at 222 (“Speaking generally and without stopping to examine the precise

effect of those at bar, it is evident that a proposal to increase the number of

commissioners from five to nine, with the machinery necessary therefor [i.e., abolishing

the existing districts so the new commission members could be elected by wards], would

merely be a change of detail and, therefore, an amendment.”).

49

Pontiac Sch Dist, 262 Mich at 345.

50

Id.

15

but instead merely rejected the argument in the form that it was presented. Notably, the

distinction between an amendment and a revision was contained only in the parties’

arguments to the Court; speaking for itself, the Court did not actually embrace a

dichotomy between “amendments” and “revisions” but simply concluded that the

proposal was not so dramatic a change as to “render it other than an amendment . . . .”51

In Citizens, this Court had an opportunity to resolve the case under the

amendment/revision dichotomy but declined to do so, affirming the result only and

fracturing on the reasoning. Three justices gave a qualified endorsement of the Court of

Appeals’ articulation of the distinction between an “amendment” and a “general revision”

of the Constitution.52 The remaining four justices declined to adopt the Court of

Appeals’ standard. Three of the four agreed with the order affirming, but did so based on

grounds not addressed by the Court of Appeals, namely, that “a proposal of this

extraordinary scope and multitude of unrelated provisions clearly cannot be reasonably

communicated to the people in ‘not more than 100 words,’ ” as required by Article 12,

§ 2.53 By its willingness to dispose of the case on the alternative ground that “[t]his

language establishes a clear limitation on the scope of the constitutional amendments

under [Article 12, § 2],”54 the statement by this grouping of justices may be read as an

51

Id.

52

Citizens, 482 Mich at 964 (CORRIGAN, J., concurring, joined by TAYLOR, C.J., and

YOUNG, J.) (“On the basis of my review, which was limited by time constraints, I do not

see a clear error in the Court of Appeals articulation . . . .”).

53

Id. at 961 (CAVANAGH, WEAVER, and MARKMAN, JJ., concurring).

54

Id. at 960.

16

implicit recognition that the “amendment/general revision” dichotomy did not provide

such a clear limitation, at least not under the Court of Appeals’ standard.55 Justice

KELLY’s dissent questioned the test developed by the Court of Appeals and lamented that

our failure to construct a clearer test left the state of the law unsettled.56

The Court of Appeals again confronted this issue in Protect Our Jobs v Bd of State

Canvassers.57 As the Court summarized it, the ballot proposal at issue was narrow,

providing in one constitutional section the “people with the right to organize and bargain

collectively” with public and private employers, to the extent not preempted by federal

law, and in another section “protecting the rights of classified civil service employees to

bargain collectively concerning all conditions and aspects of employment except

promotions.”58 CPMC challenged the proposal on the same grounds it asserted in

55

One member of this grouping wrote separately to make this point explicitly. See id. at

962 (WEAVER, J., concurring) (“The Court of Appeals opinion is an example of judicial

activism—of the unrestrained, mistaken use of the power of interpretation. . . . It

wrongly creates a ‘judicial veto’ over future voter-initiated proposed amendments by

petition even if such a proposed amendment were a one (1)-issue, single-purpose

amendment whose ‘not more than 100 words’ purpose statement for printing on the ballot

would easily be sufficient, understandable, impartial, and true.”). The Court of Appeals,

for its part, conceded that it was unable “to define with nicety the line of demarcation

between an ‘amendment’ and a ‘general revision.’ ” See Citizens, 280 Mich App at 305

(cleaned up).

56

Citizens, 482 Mich at 964, 966 (KELLY, J., dissenting).

57

Protect Our Jobs v Bd of State Canvassers, unpublished per curiam opinion of the

Court of Appeals, issued August 27, 2012 (Docket No. 311828).

58

Id. at 1-2.

17

Citizens and is asserting in this lawsuit, i.e., that it was a general revision of the

Constitution under Article 12, § 3.

The Court of Appeals rejected CPMC’s challenge, using the “qualitative and

quantitative” standard from its decision in Citizens and concluding that although the

proposal might affect “various provisions and statutes,” it was “limited to a single subject

matter” and changed only two sections of the Constitution.59 By contrast, the RMGN

proposal in Citizens

sought to replace vast portions of the constitution and massively modify the

structure and operation of Michigan’s government. The initiative proposal

here is far more akin to a correction of detail than a fundamental change,

when viewed in the proper context of the constitution as a whole. See

Laing v Kelly, 259 Mich 212, 217; 242 NW 891 (1932).[60]

This Court did not order briefing on the issue61 and our opinion declined to address it.62

Thus, we could locate no controlling authority from this Court construing the

meaning of the term “amendment” in Article 12, § 2. At most, Pontiac suggests there

may be undefined limitations on what can be achieved by an amendment. Moreover, our

caselaw lacks a detailed examination of this issue, especially one that conducts the proper

analysis by examining the constitutional text. Perhaps as a result of veering from the

text, the rather vague standard that has developed below affords courts considerable

59

Id. at 2.

60

Id. at 2-3.

61

Protect Our Jobs v Bd of State Canvassers, 492 Mich 862 (2012).

62

See Protect Our Jobs, 492 Mich 763.

18

discretion in this area.63 We believe the constitutional text provides a clearer standard,

which we turn to now.

63

The Chief Justice’s dissent does not engage in a textual analysis of our Constitution—it

does not, for example, directly examine the meanings of the relevant terms, but rather

looks to what a few cases have said, generally, about those terms. However, “a judge

must remember ‘above all else that it is the Constitution which he swore to support and

defend, not the gloss which his predecessors may have put upon it.’ ” Markman, On

Interpretation and Non-Interpretation, 3 Benchmark 219, 220 (1987), quoting Douglas,

Stare Decisis, 49 Colum L Rev 735, 736 (1949); see also Goldstone v Bloomfield Twp

Pub Library, 479 Mich 554, 561 n 4; 737 NW2d 476 (2007) (recognizing that “the actual

language of the proposed constitution constitutes the best evidence of the ‘common

understanding’ ” of the ratifiers).

Even so, we believe the Chief Justice’s dissent engages in revisionist legal history

when it asserts that our precedents in this area have established “longstanding standards”

on this point that are “consistent and compatible with each other, as well as with what is

required by our Constitution . . . .” Post at 12. Indeed, the opinion labors to give its rule

some provenance by repeatedly citing the age of the cases he relies upon, rather than

focusing on their content. See post at 11 (“[F]or at least the past 85 years in Michigan,

governing law concerning direct constitutional change has been characterized by the

following . . . .”); post at 16 (“[O]ur Court would recognize, as [it has] for the past 85

years . . . .”); post at 17 (referring to “the standard set forth by our precedents over 85

years ago”); post at 18 (referring to “the standard set forth by our precedents over the

course of 85 years”). And, for good measure, the dissent accuses the majority of altering

these longstanding standards. But if the standard set forth in Laing and Pontiac Sch Dist

and the Court of Appeals decisions in Citizens and Protect Our Jobs was so clear and

longstanding on this point, one wonders why this Court refused to adopt it in 2008 in

Citizens, instead issuing a highly unusual order leaving this area of law in a state of

limbo. In any event, as already mentioned, Laing and Pontiac Sch Dist did not review

the text of the Constitution or purport to establish any constitutional standard at all on this

point. In light of this, it would be euphemistic to say that these cases have created a

judicial gloss supporting the dissent’s reasoning—instead, they appear to us more like a

spray-on tan.

If it is bad to depart from the plain language of our Constitution on the basis of a

judicial gloss that is binding precedent, how much worse it must be to do so on the basis

of the spotty and inapposite authority the dissent relies upon in this case. Cf. Markman,

Resisting the Ratchet, 31 Harv J L & Pub Pol’y 983, 985 (2008) (“[T]o read the law

19

2. ARTICLE 12, § 2

The textual analysis begins with examining the meaning of “amendment” as used

in the text.64 “Amendment” is relevantly defined as “an alteration of a legislative or

deliberative act or in a constitution; a change made in a law, either by way of correction

or addition,” or “the correction of an error in a writ, record, or other judicial document.”65

The definition does not directly speak to the breadth of the change that can be made by

amendment or provide any substantive limitations on amendments.

consistently with its language, rather than with its judicial gloss, is not to be ‘harsh’ or

‘crabbed’ or ‘Dickensian,’ but is to give the people at least a fighting chance to

comprehend the rules by which they are governed.”). Repeatedly calling these cases the

“best and most authoritative and most consistent” precedents of this Court, post at 9 n 2,

the “most compelling precedents of this state,” post at 9 n 2, and the “best and the most

enduring relevant precedents of this state,” post at 19 n 9, does not make them so, even if

with the use of italics.

64

Because the predecessor to Article 12, § 2 first appeared in the 1908 Constitution,

Const 1908, art 17, § 2, and was retained in our current Constitution, which was ratified

in 1963, we will look to dictionaries from those periods to help interpret the term.

65

The Century Dictionary: An Encyclopedic Lexicon of the English Language (1911),

p 173; see also The American Heritage Dictionary of the English Language (1969)

(“Amendment” is “[a] correction” or “a revision or change.”); Webster’s Third New Int’l

Dictionary (1966): (“Amendment” is the “act of amending,” the “correction of a fault or

faults,” or “the process of amending[.]”); The Random House Dictionary of the English

Language (1966) (“Amendment” is “the act or state of amending or the state of being

amended,” “an alteration of or addition to a motion, bill, constitution, etc.,” or “a change

made by correction, addition, or deletion[.]”). If “amendment” were considered a term of

art, the dictionary definition would not be materially different. See Black’s Law

Dictionary (2d ed, 1910) (“Amendment” is “[t]he correction of an error” in any

proceeding at law, or “[a]ny writing made or proposed as an improvement of some

principal writing.”); see also Ballentine’s Law Dictionary (3d ed, 1969) (“Amendment”

means “[a] correction or revision of a writing to correct errors or better to state its

intended purpose.”).

20

With regard to limitations on the scope of amendments, the text of the predecessor

provision to Article 12, § 2 was meaningfully changed soon after its ratification in 1908.

When it was ratified, the Constitution gave the Legislature a veto over voter-initiated

amendments before the election at which the proposal would appear on the ballot, and the

Legislature could also submit alternative or substitute amendments.66 Yet despite the

Legislature’s considerable oversight, the framers of the Constitution nonetheless thought

that “the effect of this provision [i.e., the initiative provision] will be the submission to a

vote of the electors of practically all amendments petitioned for.”67 In a telling passage

of the Address to the People, the framers explained that legislative oversight of the

amendments proposed by initiative was a crucial factor to the convention:

The convention realized the far-reaching effect that each amendment to the

constitution may have beyond the immediate purpose intended by it, and it

was deemed essential in so important a matter as changing the fundamental

law of the state that the very greatest care should be required in both the

form and substance of amendments to it. Such care is secured by requiring

the amendments proposed to pass the scrutiny of the legislature.[68]

66

Const 1908, art 17, § 2 (“All petitions for amendments filed with the secretary of state

shall be certified by that officer to the legislature at the opening of its next regular

session; and when such petitions for any one proposed amendment shall be signed by not

less than the required number of petitioners, he shall also submit the proposed

amendment to the electors at the first regular election thereafter, unless the legislature in

joint convention shall disapprove of the proposed amendment by a majority vote of the

members elected. The legislature may, by a like vote, submit an alternative or a

substitute proposal on the same subject.”) (emphasis added).

67

Address to the People, Const 1908, art 17, §§ 2 and 3 (1908), p 64 (emphasis added).

68

Id. (emphasis added).

21

But even the legislative veto—the clearest and most significant substantive check on the

petition power—was deleted by amendment in 1913.69 In light of this history, we should

be wary of finding atextual limitations on voter-initiated amendments.

The critical limitation in Article 12, § 2—at least based on the amount of

discussion it prompted at the 1961–1962 convention—is instead the procedural

requirement of obtaining a certain number of signatures. Originally, signatures in a

number equal to 20 percent of the vote at the most recent election for secretary of state

had to be collected, but in 1913 this threshold was reduced to 10 percent of the votes for

Governor at the most recent general gubernatorial election.70 The importance of this

restriction in the constitutional framework was made abundantly clear by the framers of

the 1963 Constitution, who engaged in a spirited debate regarding the signature

requirement. At the convention, it was proposed, and briefly added to the constitution

under consideration, that the 10 percent requirement be amended to include “or 300,000

such registered electors, whichever shall be less.”71 The effect would have been to make

it progressively easier to obtain enough signatures as the population increased. Delegate

J. Harold Stevens successfully recommended striking this addition, arguing that the

69

See Direct Government, p 19 (discussing the 1913 amendment); see also Fairlie, The

Referendum and Initiative in Michigan, 43 Annals of Am Acad of Pol and Soc Sci 146,

153 (Sept 1912) (observing that for a few years after the 1908 Constitution was in place,

no amendments were proposed, and speculating that this was “due in part to the

restrictions in the method provided”).

70

See Const 1908, art 12, § 2.

71

2 Official Record, Constitutional Convention 1961, p 2459 (capitalization altered).

22

voter-initiated amendments should not be too easy to accomplish.72 But his concern

reflected his belief that initiative amendments should not be akin to “statutory matter.”73

He did not want to debase the Constitution by cluttering it with trivial amendments—in

other words, he wanted amendments to be important enough to merit inclusion in a

constitution. He was not, then, suggesting that initiative amendments should be limited

to trivial matters; quite the contrary.74

Thus, the convention decided to keep voter-initiated amendments difficult because

amendments, like the Constitution itself, were intended to deal with serious matters. The

convention accomplished its goal by imposing what it viewed as the clearest and most

stringent limitation on initiative amendments: a signature requirement.75

72

Id. at 2462-2465.

73

Id. at 2462 (statement of Delegate Stevens). He later said his “objection to this

provision [i.e., the 300,000 vote provision] and the reason for this amendment is simply

to make it more difficult to amend the constitution than to pass an ordinary statute.” Id.

at 3199. This was a real concern because, as he noted, the Constitution at that time only

required signatures equal to 8 percent of the votes for Governor from the most recent

general gubernatorial election in order to propose legislation by initiative petition. Id. at

2462.

74

A similar argument was made in 1913, when the Legislature was considering an

amendment that would relax the restrictions on voter-initiated amendments. See 1913

House Journal 698 (“It may be true that [requiring signatures from 20 percent of the

electors] is too high a percentage. However, the Constitution is the bulwark and

foundation of our laws, and constitutional amendments have broader significance than

statutory amendments,” and accordingly some figure higher than 8 percent was

appropriate.) (statement of Representative Charles McBride).

75

There are, of course, other provisions in the text, such as the 100-word summary

requirement, that are not germane to resolving the present case. See Const 1963, art 12,

§ 2 (“The ballot to be used in such election shall contain a statement of the purpose of the

proposed amendment, expressed in not more than 100 words, exclusive of caption.”).

23

3. ARTICLE 12, §§ 2 AND 3: THE NEW-CONSTITUTION TEST

The relevant substantive limitation on the scope of voter-initiated amendments

arises from the text of Article 12, § 2 when read together with Article 12, § 3. By

adopting these two different procedures for altering the Constitution, the framers intended

that the mechanisms must be different in some regard. As one treatise similarly observed

in 1910:

It may be argued . . . that if a constitution specifically provides two

methods of alteration, the language employed with reference to the proposal

of amendments by the legislative method may, when read with that

concerning the convention method, often be construed as an implied

prohibition of complete constitutional revision by the legislative method.[76]

In other words, the distinction between changes proposed by amendments and changes

proposed by a convention indicates a substantive difference that limits the breadth of

amendments.

Our Constitution tells us what this basic difference is. The result of a

constitutional convention called to consider a “general revision” is a “proposed

76

Dodd, The Revision and Amendment of State Constitutions (Baltimore: Johns Hopkins

Press, 1910), p 261. The treatise was written at time when popularly initiated

constitutional amendments, such as the petition initiative here, were just coming into use

and legislatively initiated amendments were more common; but in either case the

comparison is between an amendment and a revision. See generally Goebel, A

Government by the People: Direct Democracy in America, 1890–1940 (Chapel Hill:

University of North Carolina Press, 2002), pp 27-29 (noting that legislatures originated

many constitutional amendment proposals in the nineteenth century, and that the

mechanism for popularly initiated amendments began only in the last decade of that

century); Jameson, A Treatise on Constitutional Conventions; Their History, Powers, and

Modes of Proceeding (1887), § 544, pp 568-569 (writing near the end of the nineteenth

century and noting that, with few exceptions, constitutional change came only after the

legislature either called a convention or proposed an amendment).

24

constitution or amendments” adopted by the convention and proposed to the electors.77

The convention, then, can propose amendments to the existing Constitution or offer a

new constitution.78 By contrast, if approved, a voter-initiated amendment under Article

12, § 2 “shall become part of the constitution, and shall abrogate or amend existing

provisions of the constitution . . . .”79 Consequently, an amendment does not replace a

constitution in full, but simply adds to or abrogates specific provisions in an existing

constitution.80 Thus, the constitutional text distinguishes between amendments that can

77

Const 1963, art 12, § 3.

78

As members of the 1961–1962 constitutional convention recognized, a convention had

unrestrained authority to offer a new constitution or narrower amendments. One delegate

noted that a convention, “if it so saw fit, could, for all intents and purposes disregard the

idea of a general revision and merely confine itself to a single amendment or a few

amendments and leave the basic document unchanged . . . .” 2 Official Record,

Constitutional Convention 1961, p 3007 (statement of Delegate Alvin Bentley). This was

because, as another delegate observed, conventions were “sovereign, autonomous

bodies.” Id. (statement of Delegate Donald Habermehl). A convention’s broad

discretion has long been noted. See Direct Government, p 9 (“[T]he convention is also

used for the purpose of initiating amendments to an existing document.”); Revision and

Amendment, p 258 (“Yet of course a constitutional convention when assembled may not

make a general revision but may simply propose specific amendments.”); id. at 258 n 243

(“It lies within the discretion of a convention ordinarily as to whether its action shall be

substituted (1) in the form of separate amendments, or (2) as a complete new constitution,

or (3) as a new constitution but with separate provisions which may be voted upon

independently. As between the first and second plans it may be said that the second is to

be preferred if the changes are so great as to make submission as separate amendments

confusing . . . .”).

79

Const 1963, art 12, § 2.

80

Cf. Livermore, 102 Cal at 118-119 (observing that “the significance of the term

‘amendment’ implies such an addition or change within the lines of the original

instrument”).

25

be made by petition and new “constitutions.” Because only the convention has the power

to propose a constitution, by logical implication an initiative amendment cannot do so.

And since this limitation would be meaningless if it only required a new constitution to

be labeled as an amendment, it follows that an initiative amendment cannot propose

changes that are tantamount to the creation of a new constitution.81

The phrase “general revision” supports this dichotomy between amendments and

“new” constitutions, although the phrase has engendered some confusion. The “purpose”

of a convention is to consider “the question of a general revision of the

constitution . . . .”82 “General” means “dealing with all or the overall, universal aspects

of the subject under consideration . . . .”83 “Revision,” in turn, is relevantly defined as

81

Cf. Attorney General ex rel Vernor v Common Council of Detroit, 168 Mich 249, 252;

133 NW 1090 (1912) (noting, with regard to changes to a city charter, that “a general

revision of an old charter may be treated as equivalent to the framing of a new charter”).

As one treatise explained, around the time we adopted our Constitution, it might be

“legally proper, . . . in the absence of specific constitutional restrictions to propose to the

people by the legislative process [for initiating amendments] any constitutional alteration

short of a complete revision or even a complete revision.” Revision and Amendment,

p 261. The treatise noted, however, that “if a constitution specifically provides two

methods of alteration, the language employed with reference to the proposal of

amendments by the legislative method may, when read with that concerning the

convention method, often be construed as an implied prohibition of complete

constitutional revision by the legislative method.” Id. The same basic point can be made

about our initiative method of amendment. But, as the explanation above demonstrates,

the text and structure of our Constitution establishes the prohibition on completely

rewriting the Constitution by means of an initiative amendment.

82

Const 1963, art 12, § 3.

83

The Random House Dictionary of the English Language (1966). Other dictionaries

accord with this definition. See, e.g., Webster’s Third New Int’l Dictionary (1967)

(“General” is “involving or belonging to the whole of a body . . . rather than to a limited

part, group, or section,” “concerned or dealing with universal rather than particular

26

“the act or work of revising.”84 This is how we characterized the term in Laing85 and

how it was described at the 1908 convention: “What is meant by revision or to revise?

Why simply to re-examine for the purpose of correction—the act of reviewing or re-

examination for the purpose of correction.”86 The “revision” is simply the process for

reconsidering the constitution as a whole. It is not, as some Court of Appeals opinions

suggest,87 a particular document or proposed change. Thus a “revision” is not

aspects,” “marked by broad overall character without being limited, modified, or checked

by narrow precise considerations[.]”).

84

The Random House Dictionary of the English Language (1966). The same basic

definition appears in other dictionaries. See The American Heritage Dictionary of the

English Language (1969) (“Revision” is “[t]he act or procedure of revising.”); Webster’s

Third New Int’l Dictionary (1967) (“Revision” is “an act of revising : re-examination or

careful reading over for correction or improvement[.]”); The Century Dictionary: An

Encyclopedic Lexicon of the English Language (1911) (defining “revision” as “[t]he act

of revising; reëxamination and correction”). As with the term “amendment,” discussed

above, the relevant dictionary definition does not change if we considered “revision” to

be a legal term of art. See Ballentine’s Law Dictionary (3d ed, 1969) (“Revision” means

“[l]ooking over a thing . . . and reviewing it carefully for the purpose of making changes,

additions, and corrections, if such be deemed advisable.”); Black’s Law Dictionary (2d

ed, 1910) (not defining “revision” but defining “revise” as “[t]o review, re-examine for

correction; to go over a thing for the purpose of amending, correcting, rearranging, or

otherwise improving it”).

85

See Laing, 259 Mich at 217 (“Revision implies a re-examination of the whole

law . . . .”).

86

1 Proceedings and Debates of the Constitutional Convention of the State of Michigan

1907-1908, p 611 (statement of delegate Benjamin Heckert).

87

See, e.g., CPMC, ___ Mich App at ___; slip op at 15 (“Our courts long have

recognized that an amendment is not the same as a general revision and have attempted to

define the differences between them where the constitutional provisions themselves do

not define the terms.”); Citizens, 280 Mich App at 277 (“As we will explain, the

27

contradistinguished from an “amendment.” Rather, as noted, the distinction between the

Article 12, § 3 convention process and the Article 12, § 2 amendment process is that the

former can produce a proposed constitution, while the latter is limited to proposing less

sweeping changes.88

Having determined that the relevant substantive limitation is that a voter-initiated

amendment cannot be equivalent to a new constitution, we must determine what this

limitation entails. As an initial matter, the number of changes is not dispositive, as even a

limited number of changes can have the effect of creating a new constitution.89 A

Michigan Constitution clearly establishes separate methods for enacting an ‘amendment’

to, as compared to a ‘general revision’ of, the constitution.”).

88

This distinction is further borne out by the much different requirements for calling a

convention under Article 12, § 3 and for initiating an amendment proposal under Article

12, § 2. The most significant hurdle to placing a proposed amendment on the ballot by

initiative petition under Article 12, § 2 is the requirement of obtaining signatures from

“registered electors of the state equal in number to at least 10 percent of the total vote

cast for all candidates for governor” at the most recent general gubernatorial election.

Const 1963, art 12, § 2. If the petitioner summarizes the proposal in a statement of not

more than 100 words and complies with various ministerial requirements, the initiative

will appear on the ballot. Id. By contrast, to call a convention, voters must either

persuade the Legislature to pass a bill placing on the ballot the question of whether to call

a convention, or the voters must wait until the question is placed on the ballot

automatically every 16 years. Const 1963, art 12, § 3. If a majority of the voters at that

election agree, a convention will be held. Id. This, in turn, requires 148 individual

elections for the delegates (determined by the number of senators and representatives in

the Legislature), the drafting and approval of language at the convention, and then a

subsequent vote of the electors on whatever the convention produces. Id. Clearly, the

more cumbersome and arduous process for calling a convention reflects the fact that a

convention can produce more sweeping changes than can a lone amendment proposed by

initiative. See Revision and Amendment, p 261.

89

Cf. Opinion of the Justices, 264 A2d 342, 345 (Del, 1970) (“A threshold truism is that

the mere number of changes cannot make the difference. Legislative amendments are not

28

constitution, after all, is more than words on a page. Its most basic functions are to create

the form and structure of government, define and limit the powers of government, and

provide for the protection of rights and liberties.90 These are the basic threads of a

constitution, and when they are removed, replaced, or radically rewoven, the whole

tapestry of the constitution may change.

Therefore, changes that significantly alter or abolish the form or structure of our

government, in a manner equivalent to creating a new constitution, are not amendments

limited in number by [the constitution]; and a ‘revision’ . . . does not come into being by

reason of the mere number of changes or the mere fact that the changes concern the entire

Constitution.”). The test we adopt today is based on the constitutional text. By contrast,

the qualitative/quantitative test used by the Court of Appeals, and endorsed in an altered

form by the Chief Justice’s dissent, comes from a line of California caselaw that began in

the nineteenth century. See Citizens, 280 Mich App at 299-305 (tracing California law

and adopting it as consistent with our law).

90

See New York Times Co v Sullivan, 376 US 254, 275; 84 S Ct 710; 11 L Ed 2d 686

(1964) (noting the view of James Madison “that the Constitution created a form of

government under which ‘The people, not the government, possess the absolute

sovereignty.’ ”), quoting 4 Elliot’s Debates on the Federal Constitution (1876), pp 569-

570; Wood, Creation of the American Republic 1776–1787 (Chapel Hill: University of

North Carolina Press, 1969), p 600 (“A constitution for Americans, said Thomas Paine,

was ‘not a thing in name only; but in fact. . . . It is the body of elements to which you can

refer, and quote article by article; and which contains . . . every thing that relates to the

complete organization of a civil government, and the principles on which it shall act, and

by which it shall be bound.’ ”), quoting Paine, Rights of Man, in 1 Foner, ed, Complete

Writings of Thomas Paine (New York: The Citadel Press, 1945), p 278; see also

Friedman, A History of American Law (New York: Simon & Schuster, 2005), p 74 (“A

constitution is different from ordinary statute law. It has two crucial functions. First, it

sets up and sets out the structure of government—its permanent shape, its organs or parts,

and their rights, duties, boundaries, and limits. Second, it can list the essential rights of

the citizen; this list is supposed to limit what government is allowed to do[.]”).

29

under Article 12, § 2.91 Contrary to the suggestion in Pontiac Sch Dist,92 it is not

necessarily the impact on the operations of government that matters—like the United

States Supreme Court, we decline to accept “the narrow-minded assumption” that the

only purpose of our constitutional provisions “is to make the government run as

efficiently as possible.”93 Further, a change that recalibrates the relative power of the

branches of government—such as limiting or taking away a specific power from one

branch—is not, absent a significant effect on the structure of government, a change that is

tantamount to the creation of a new constitution.94 Indeed, we have stated that, despite its

eliminating power from the judiciary or executive branch, an amendment permitting

indeterminate criminal sentences was “the people[’s] exercise[] [of] a right inherent in

them to adopt a constitutional amendment taking away from, or adding to, the powers of

91

Cf. Bess v Ulmer, 985 P2d 979, 987 (Alas, 1999) (“The core determination is always

the same: whether the changes are so significant as to create a need to consider the

constitution as an organic whole.”); Amador Valley, 22 Cal 3d at 223 (1978) (“However,

even a relatively simple enactment may accomplish such far reaching changes in the

nature of our basic governmental plan as to amount to a revision also.”).

92

See Pontiac Sch Dist, 262 Mich at 345.

93

Nat’l Labor Relations Bd v Noel Canning, 573 US ___, ___; 134 S Ct 2550, 2597; 189

L Ed 2d 538 (2014) (Scalia, J., concurring in judgment); see also id. at ___; 134 S Ct at

2597-2598 (“ ‘Convenience and efficiency,’ we have repeatedly recognized, ‘are not the

primary objectives’ of our constitutional framework.”) (citation omitted).

94

See, e.g., Bess, 985 P2d at 988 (holding that a proposed amendment of a constitution

that would transfer reapportionment authority from the executive branch to an

independent board was a permissible amendment because “the qualitative force of this

narrow change” was not great enough, even though “[r]eassigning this power [was]

unquestionably a significant change in the present system”).

30

either of the departments of government.”95 In fact, it would be difficult to imagine many

amendments that leave the proportionate powers of the branches completely unchanged.96

IV. APPLICATION

Given the above analysis, VNP’s proposal will be considered a permissible

amendment if it does not propose changes that significantly alter or abolish the form or

structure of our government in a way that is tantamount to creating a new constitution.

To answer this question, we must examine our current law on redistricting and

apportionment and how VNP’s proposal would change that law.

A. APPORTIONMENT AND REDISTRICTING

Under our first three Constitutions, the Legislature was granted authority to

redistrict.97 But the Legislature did not always carry out this responsibility.98 In light of

95

People v Cook, 147 Mich 127, 132; 110 NW 514 (1907).

96

Plaintiffs do not contend that the Constitution requires amendments to have only a

single purpose and that VNP’s proposal therefore fails because it has multiple purposes.

In fact, in the Court of Appeals, they disclaimed this argument. Therefore, we decline to

decide whether the Constitution requires amendments to have only a single purpose and

instead leave that question for another day.

97

See Const 1835, art 4, § 3; Const 1850, art 4, § 4; Const 1908, art 5, § 4 (as ratified).

98

For example, around 1910, when the federal census was completed showing that the

urban population was growing, “[m]embers of the legislature, the majority of whom

represented rural areas and small towns, balked at carrying out the requirement that the

legislature be reapportioned in 1913 and every tenth year thereafter,” and consequently,

no reapportionment occurred in 1923 or 1933 (although a belated senate reapportionment

was adopted in 1925). Dunbar & May, Michigan: A History of the Wolverine State

(Grand Rapids: William B Eerdmans Publishing Co, 1995), pp 548-549. Ten years later,

when it again came time to reapportion, the Senate was not reapportioned, although the

House passed legislation to reapportion. Id. at 549.

31

this history, two competing voter-initiated amendments to the then-existing Constitution

were placed on the November 1952 ballot.99 One was approved, which wrote directly

into the Constitution the then-existing alignment of seats in the Senate provided for in the

1952 amendment, added 10 seats to the House, and conferred upon the Board of State

Canvassers the obligation to draw up new house districts if the Legislature failed to act.100

Our present Constitution, as ratified by the voters in 1963, laid out a different

framework for reapportionment and redistricting, although for reasons that will become

clear below, it is not currently followed.101 Under the Constitution, “the 38 members of

Michigan’s senate and the 110 members of the house of representatives are elected

according to the district in which they reside. The Constitution sets forth the

apportionment factors and rules for individual districts, which are redrawn after” the

federal census is published.102 The Constitution aligns the senate districts with counties

and apportions senators based on “factors” consisting of percentages of the county’s

99

Id.

100

See id.; Const 1908, art 5, §§ 2 through 4 (as amended).

101

Concern was expressed at the convention that redistricting by the Legislature may not

be the best approach. See 2 Official Record, Constitutional Convention 1961, p 2014

(noting that “[r]eliance on legislatures to reapportion themselves generally has been

futile. Most authorities agree that self reapportionment poses so many problems that it is

seldom voluntarily undertaken by legislatures”) (statement by Delegate John Hannah);

see also id. at 2015 (“[The committee on legislative organization] became convinced that

it is totally unrealistic to expect a legislature to redistrict and reapportion seats in its own

body. Redistricting inevitably involves the possible denial of seats to members of the

existing legislature . . . .”).

102

CPMC, ___ Mich App at ___; slip op at 5, citing Const 1963, art 4.

32

population and “land area” in the state.103 The house districts were based on counties and

apportioned according to population.104 In other words, the apportionment was based on

“weighted land area/population formulae.”105

A key innovation of the 1963 Constitution was to create a bipartisan “commission

on legislative apportionment” to draw the relevant district lines.106 The commission

consisted of eight seats, with the major political parties each entitled to appoint four

members.107 The Secretary of State was the commission’s nonvoting secretary, required

to furnish “all necessary technical services,” and the Legislature was required to

“appropriate funds to enable the commission to carry out its activities.”108 The

commission was required to “hold public hearings as may be provided by law.”109 The

commission had to complete its work within 180 days of the census data becoming

available.110 Each final apportionment and districting plan adopted by the commission

had to be published and would become law 60 days after publication.111 If the

103

Const 1963, art 4, § 2.

104

Const 1963, art 4, § 3.

105

In re Apportionment of State Legislature—1982, 413 Mich at 107.

106

Const 1963, art 4, § 6.

107

Id.

108

Id.

109

Id.

110

Id.

111

Id.

33

commission could not agree on a plan, commissioners could submit plans to our Court,

which was required to “determine which plan complies most accurately with the

constitutional requirements” and direct that the plan be adopted.112 The Court was also

given jurisdiction over any application filed by electors within 60 days of publication of

the plan.113

As our present Constitution was being deliberated at the 1961–1962 constitutional

convention, the United States Supreme Court was also considering constitutional

challenges to apportionment schemes. In 1962, that Court held that challenges to

apportionment plans were justiciable, setting the stage for vast changes in this area of

law.114 Two years later, in Reynolds v Sims, the Court held that “the Equal Protection

Clause requires that the seats in both houses of a bicameral state legislature must be

apportioned on a population basis.”115 Geographical considerations, such as

apportionment based on counties, could no longer play a role in apportionment if they

produced population deviations between the districts.116 One week after Reynolds was

decided, the United States Supreme Court peremptorily reversed a federal district court’s

112

Id.

113

Id. In 1963, the Legislature passed a statute to provide for the redistricting

commission. 1963 (2d Ex Sess) PA 46, MCL 4.11 et seq. The statute has never been

repealed and remains on the books.

114

Baker v Carr, 369 US 186, 237; 82 S Ct 691; 7 L Ed 2d 663 (1962).

115

Reynolds v Sims, 377 US 533, 568; 84 S Ct 1362; 12 L Ed 2d 506 (1964).

116

See id. at 567 (“[T]he weight of a citizen’s vote cannot be made to depend on where

he lives.”).

34

earlier judgment that Michigan’s apportionment rules were constitutional, which

invalidated them.117

Days after Reynolds was decided, we ordered the commission to adopt a new plan

for redistricting and apportionment that complied with the Supreme Court’s decisions in

Reynolds and various related cases decided the same day.118 When the commission failed

to reach an agreement, we issued an opinion directing it to adopt the so-called Austin-

Kleiner Plan, as it most closely adhered to the new constitutional requirements.119 In a

concurrence, Justice SOURIS argued that the commission “was so dependent upon the

continuing validity of the [now unconstitutional apportionment formula] by which the

commission’s duties were specified and expressly limited, that it could not survive

alone.”120

117

See Marshall v Hare, 378 US 561; 84 S Ct 1912; 12 L Ed 2d 1036 (1964), rev’g 227 F

Supp 989 (ED Mich, 1964).

118

In re Apportionment of State Legislature—1964, 373 Mich 247, 248-249; 128 NW2d

721 (1964).

119

In re Apportionment of State Legislature—1964, 373 Mich 250, 254; 128 NW2d 722

(1964).

120

Id. at 259 (SOURIS, J., concurring); see also id. (“It is incomprehensible to me that the

people of this State . . . would have intended to grant a commission composed of 8

members selected by the 2 major political parties in the State from 4 specifically

designated areas of the State the power of apportionment and districting of the State’s

legislature without the very specific and rigidly limiting directions unconstitutionally and

ineffectually sought to be imposed upon the commission by the [apportionment

formulas].”).

35

The apportionment issue was back before the Court in 1972 after the commission

once again deadlocked and invoked our supervision.121 We ordered the adoption of a

proposed apportionment plan, but did not comment on the viability of the commission.122

Justice T. G. KAVANAGH dissented, reaching the same conclusion Justice SOURIS had in

1964: the commission could not exist—i.e., was not severable from—the unconstitutional

apportionment standards in our Constitution.123

In 1982, with yet another deadlocked commission seeking our supervision, we

adopted the position of Justices SOURIS and T. G. KAVANAGH by declaring that the

commission was not severable from the unconstitutional apportionment provisions it was

directed to implement.124 We thought the commission was inseparable from the

unconstitutional standards because holding otherwise would have required us to opine on

whether the people would have voted for the commission without those standards.125

Because the issue of changing how legislators are chosen is “a fundamental matter,” we

would not “speculate on a matter of such enormous importance.”126 Critically, we

121

See In re Apportionment of State Legislature—1972, 387 Mich 442; 197 NW2d 249

(1972).

122

Id. at 458.

123

Id. at 493 (T. G. KAVANAGH, J., dissenting).

124

In re Apportionment of State Legislature—1982, 413 Mich at 116.

125

Id. at 136-137.

126

Id. at 137-138.

36

emphasized repeatedly that “[t]his is a decision which the people should make.”127 It was

a decision, we suggested, that the people could initiate through a constitutional

amendment:

The power to redistrict and reapportion the Legislature remains with the

people. The people, however, can only exercise that power, as a practical

matter, by amending the constitution, which, unless the Legislature

proposes an amendment acceptable to the people, is a difficult and time-

consuming process.[128]

Tellingly, we noted in the same discussion that “[t]he initiative process is also difficult

and time-consuming.”129 Because that process was slow, and a plan needed to be

formulated in the meantime, we appointed an individual to oversee the drawing of a

redistricting and apportionment plan consistent with various principles we established.130

We noted, however, that the Legislature could draw its own plan, which would supersede

the one we set in motion.131 But again, we stressed that our plan was merely a stopgap

that would “stand until the people act, or it is changed by the collective action of the other

two branches of this government, composed of persons who are the most immediate

representatives of the people.”132 It was not until 1996 that the Legislature codified

127

Id. at 138; see also id. (“The matter should be returned to the political process in a

manner which highlights rather than hides the choices the people should make.”).

128

Id. at 139-140.

129

Id. at 140 n 25.

130

Id. at 140-142.

131

Id. at 142-143.

132

Id. at 140.

37

apportionment standards and committed itself to drawing districts in the future.133

Thus, the last time the voters had direct input on this issue, they opted for

apportionment and redistricting to be conducted by a commission. The rules to be

implemented by that commission have been declared unconstitutional, and we

deactivated the commission by concluding that it was not severable from those

unconstitutional rules. The Legislature now exercises a power that the Constitution of

1963 expressly denied to it—to draw legislative districts—because our Constitution has

never been amended to modify the unconstitutional provisions concerning apportionment

and redistricting.

B. THE VNP PROPOSAL

That is precisely what VNP’s constitutional amendment proposes to do. To

accomplish this task, the proposal would eliminate the current language in the

Constitution laying out the apportionment formulae.134 Instead, seven criteria are

proposed, requiring that the districts must, in order of priority: (1) have “equal population

as mandated by the United States Constitution,” (2) “be geographically contiguous,” (3)

“reflect the state’s diverse population and communities of interest,” (4) “not provide a

disproportionate advantage to any political party,” measured by “accepted measures of

partisan fairness,” (5) “not favor or disfavor an incumbent elected official,” (6) “reflect

133

See 1996 PA 463 (state legislative districts); 1999 PA 221 (federal congressional

districts).

134

VNP proposal, art 4, §§ 2 through 3.

38

consideration of county, city, and township boundaries,” and (7) “be reasonably

compact.”135

Rather than rewriting the constitutional section governing the commission, the

VNP proposal simply deletes the language in Const 1963, art 4, § 6 establishing the

commission.136 In its place, the proposal offers a reformed commission that is similar to

its predecessor.137 Like the old one, it consists of four members from each major political

party, but it would have five additional members who are declared independent voters.138

All 13 members would be selected from a pool of candidates who have submitted

applications, taken oaths, and met various other requirements.139 The leaders of both

parties in the Senate and House can strike, in total, 20 names from the applicant pools.140

The commission, once selected, must hold public hearings and its contact with the public

is regulated in detail by the proposal.141 A plan is adopted only with at least two votes

135

VNP proposal, art 4, § 13. Although the proposed language is presented capitalized,

this opinion presents it in standard type throughout for ease of reading.

136

VNP proposal, art 4, § 6.

137

VNP proposal, art 4, § 6(2)

138

Id.

139

Id.

140

VNP proposal, art 4, § 6(2)(E).

141

VNP proposal, art 4, §§ 6(8) through (11).

39

from each subgroup (Republicans, Democrats, and independents), as well as a majority of

the whole.142

The proposal continues nearly verbatim various ancillary provisions from the 1963

commission. The Secretary of State, for example, remains a nonvoting secretary of the

commission, charged with providing the commission “all technical services that the

commission deems necessary.”143 Likewise, the Legislature remains obligated to

“appropriate funds” for the commission, although the proposal provides a detailed

breakdown of what the funds go to, whereas the 1963 Constitution simply required the

appropriation of sufficient funds “to enable the commission to carry out its activities.”144

Our Court has a similar, if perhaps narrower, jurisdictional grant under the proposal: we

can “direct the Secretary of State or the commission to perform their respective duties,”

and we may also “review a challenge to any plan adopted by the commission” and “shall

remand a plan to the commission for further action if the plan fails to comply with the

requirements of this Constitution, the Constitution of the United States or superseding

federal law.”145 The proposal adds various provisions clarifying that the commission’s

142

VNP proposal, art 4, § 6(14).

143

VNP proposal, art 4, § 6(4); see Const 1963, art 4, § 6 (“all necessary technical

services”).

144

VNP proposal, art 4, § 6(5); Const 1963, art 4, § 6.

145

VNP proposal, art 4, § 6(19). By statute, we presently have “original and exclusive

state jurisdiction to hear and decide all cases or controversies in . . . involving a

redistricting plan” drawn under the current scheme. MCL 4.262.

40

power is legislative and not subject to the Legislature’s146 or the Governor’s147 control,

and the vesting clauses of the judicial, executive, and legislative branches are amended so

as to vest power in their respective branches “except to the extent limited or abrogated”

by certain of the new provisions.148

C. ASSESSING THE PROPOSAL

To determine whether VNP’s proposal is a permissible amendment, we must ask

whether it significantly alters or abolishes the form or structure of our government in a

manner that is tantamount to creating a new constitution.149

146

VNP proposal, art 6, § 6(22).

147

VNP proposal, art 5, § 2.

148

VNP proposal, art 4, § 1; VNP proposal, art 5, § 1; VNP proposal, art 6, § 1.

149

The baseline for measuring these changes includes more than just the current

procedure, but also, and perhaps even more importantly, the provisions in the 1963

Constitution that are no longer effective. It is, after all, the Constitution that would be

amended by VNP’s proposal, not the current statutory scheme that has filled the gap

created by our decision holding that the present constitutional provisions are

unconstitutional. See In re Apportionment of State Legislature—1982, 413 Mich at 115-

116. Despite our ruling, we have no power to make the law disappear. Cf. Steffel v

Thompson, 415 US 452, 469; 94 S Ct 1209; 39 L Ed 2d 505 (1974) (“ ‘Of course, a

favorable declaratory judgment may nevertheless be valuable to the plaintiff though it

cannot make even an unconstitutional statute disappear.’ ”) (citation omitted); Winsness v

Yocom, 433 F3d 727, 728 (CA 10, 2006) (“There is no procedure in American law for

courts or other agencies of government—other than the legislature itself—to purge from

the statute books, laws that conflict with the Constitution as interpreted by the courts.”);

Pidgeon v Turner, 538 SW3d 73, 88 n 21 (Tex, 2017) (“When a court declares a law

unconstitutional, the law remains in place unless and until the body that enacted it repeals

it, even though the government may no longer constitutionally enforce it.”); see generally

Mitchell, The Writ-of-Erasure Fallacy, 104 Va L Rev (forthcoming 2018), pp 4-5 (“[T]he

statute continues to exist, even after a court opines that it violates the Constitution, and it

remains a law until it is repealed . . . .”). Indeed, that is why VNP’s proposal strikes out

41

One central feature of the VNP amendment is that it sweeps away unconstitutional

provisions that have remained in the Constitution for some time. The “weighted land

area/population formulae” and the accompanying apportionment factors150 are gone, and

so counties would not be the organizing feature of redistricting plans. But these changes

involve no great transformation because these features were held unconstitutional 36

years ago. In their place our state has used federal constitutional requirements and

various provisions long held unconstitutional. This is not to say that those provisions

could now constitutionally be enforced; rather, they simply remain relevant in

determining the degree of change wrought by VNP’s proposal. In this regard, it is also

noteworthy that the statutory framework created in 1963 to effectuate the redistricting

commission has never been repealed. See MCL 4.11 to 4.20. In other words, current

statutes appear to require that the commission convene and submit redistricting plans.

The Chief Justice’s dissent appears to suggest that judges have the power not just

to declare a legal provision to be unconstitutional (i.e., to say what the law is), but rather

to actually amend the Constitution by deleting from it any text the judge declares to be

unconstitutional. His dissent, then, seems to suggest that a court can physically remove

written text of statutes and constitutions. But that is simply not how a judgment of even

the highest court in the land works. Cf. Mitchell, Textualism and the Fourteenth

Amendment, 69 Stan L Rev 1237, 1298 (2017) (“Judicial review means only that the

Court may decline to enforce a federal statute in a particular case—if (and only if) the

Court concludes that enforcing the statute would conflict with its paramount duty to obey

the Constitution. But federal statutes that the Supreme Court has declared

‘unconstitutional’ remain laws until Congress repeals them, and the Court must enforce

those laws when it can do so consistent with the Constitution.”) (citations omitted).

Tellingly, the Chief Justice’s dissent cites several abrogated federal constitutional

provisions, but these are easily distinguished given that the people have chosen to

affirmatively abrogate them by ratifying superseding amendments. That is not the case

here. Our decision declaring that the commission could not be severed from

unconstitutional standards was not a superseding constitutional amendment, but rather a

judicial remedy to cure a conflict between our state Constitution and the United States

Constitution.

150

In re Apportionment of State Legislature—1982, 413 Mich at 107.

42

various state “guidelines,”151 enacted in 1996, including that the districts “[be] areas of

convenient territory contiguous by land,”152 “preserve county lines with the least cost to

the principle of equality of population,”153 and remain as compact as possible when

drawn within a city or township with multiple districts.154 VNP’s proposed standards

reflect many of the same principles, including, of course, adhering to federal law, and

also requiring contiguous districts, respecting municipal boundaries, and seeking

reasonable compactness.155 The proposal contains a few new items too, such as

considerations of partisan fairness. But given their continuities with the current

standards, VNP’s proposed standards are no revolution in redistricting, and they certainly

do not portend a transformation of our form or structure of government.

As noted above, various provisions in VNP’s proposal mirror those in the current

Constitution. The Secretary of State has substantially the same general responsibilities,

being the nonvoting secretary of the commission responsible for furnishing its needs.156

The Secretary of State has more detailed obligations under the proposal, involving the

151

MCL 4.261; MCL 3.63.

152

MCL 4.261(c); MCL 3.63(c)(i).

153

MCL 4.261(e); see also MCL 3.63(c)(ii) (“Congressional district lines shall break as

few county boundaries as is reasonably possible.”).

154

MCL 4.261(i); MCL 3.63(c)(vi).

155

VNP proposal, art 4, § 13.

156

Compare Const 1963, art 4, § 6, with VNP proposal, art 4, § 6(4).

43

formation of the commission.157 But these tasks are ministerial and in line with our

current Constitution—requiring the Secretary of State to manage applications or other

records is business as usual, not a new way of governing Michigan.158

Since plaintiffs and the Chief Justice’s dissent concede that “the people can alter

the power of redistricting by amending the Constitution,”159 the more significant

argument against the VNP proposal is that it disrupts the separation of powers. The

powers are most glaringly reconfigured, according to plaintiffs, by the proposal’s

inclusion of limiting language in the vesting clauses of each branch. The legislative,

executive, and judicial branches are given their respective powers “except to the extent

limited or abrogated” by certain parts of the proposal.160 The dissent takes the position

that these changes “fundamentally change the operation of our government” by limiting

the vested powers of the branches and creating a new commission with responsibility for

redistricting.161 We disagree.

157

VNP proposal, art 4, § 6(2) (requiring the Secretary of State to make applications

available and accept completed applications, require oaths to be taken, remove

incomplete or inadequate applications, and randomly select applicants).

158

See, e.g., MCL 324.80320(3) (“Receipt by the secretary of state of a properly tendered

application for a certificate of title on which a security interest in a watercraft is to be

indicated is a condition of perfection of a security interest in the watercraft . . . .”); MCL

257.248(1) (requiring the Secretary of State to “conduct [an] investigation within 15 days

after receiving the application” for a dealer license).

159

Post at 23 n 12.

160

VNP proposal, art 4, § 1; VNP proposal, art 5, § 1; VNP proposal, art 6, § 1.

161

Post at 37.

44

The limitations in the vesting clauses are, in many ways, the result of VNP’s

attempt to comply with other requirements in Article 12, § 2. By including this language,

the proposal simply seeks to harmonize its changes with the rest of the Constitution. This

is important because Article 12, § 2 requires that the proposal republish for the voters any

portion of the present Constitution that the proposed amendments would alter or

abrogate.162 This requirement has kept at least one proposal off the ballot in the recent

past.163 By explicitly adding limitations to the vesting clauses here, VNP sought to avoid

any argument that it was implicitly altering or abrogating the vesting clauses or other

parts of the Constitution. More broadly, by adding this language, the proposal makes

explicit what would have been implicit without the language—the proposal does have

some effect on the responsibilities and powers of the branches of government. But the

proposed language in the vesting clauses tells us nothing useful to the critical inquiry: just

how significant are the changes? The proposal is in jeopardy only if the changes are

equivalent to the creation of a new constitution. To answer that question, we have to

examine the proposed changes that affect the branches’ relative powers.

To begin, consider how the proposal would change the present Constitution with

regard to the Legislature. The present Constitution does not accord the Legislature any

role in the redistricting or apportionment process. Instead, like VNP’s proposal, a

162

Const 1963, art 12, § 2.

163

See Protect Our Jobs, 492 Mich at 773-774 (holding that one of the proposed

amendments altered or abrogated an existing constitutional provision, triggering the

republication requirement).

45

commission is placed in charge. The commissions are materially similar. Both are

charged with drawing a redistricting plan based on various guidelines. And while the

guidelines have changed, as explained above, VNP’s proposal actually reflects many of

the same standards currently used. The major difference between the 1963 Constitution’s

commission and VNP’s is the process by which commission members are chosen.

VNP’s proposal is undoubtedly more elaborate on this point. Nonetheless, as with the

old commission, VNP’s proposal seeks to ensure that the membership strikes a partisan

balance. In fact, in doing so, VNP’s proposal gives the Legislature a formal role in the

process, with the majority and minority leaders of each house entitled to a certain number

of vetoes on members.164 The Legislature has no such role in the 1963 Constitution’s

commission. If anything, then, VNP’s proposal increases, slightly, the Legislature’s

participation in the process over the level contemplated in 1963. And the Legislature’s

new, minor role does not come at the expense of either of the other two branches, which

have no real part in this process.

Of course, we are not oblivious to the fact that the Legislature, since 1996, has

established the standards and framework for redistricting, as well as drafted the plans.165

But the current state of affairs is a deviation from what the voters chose when they

ratified the 1963 Constitution.166 Under the 1963 Constitution, the power to draw

164

VNP proposal, art 4, § 6(2)(E).

165

See, e.g., MCL 4.801 (current plan for Senate districts); MCL 4.802 (current plan for

House districts).

166

The Chief Justice’s dissent also invites us to apply the repudiated concept of

legislative acquiescence to the people’s failure to amend the Constitution after our

46

districts never belonged to the Legislature. Rather, its present role is solely due to a

judicial remedy we crafted in light of our conclusion that the unconstitutional

apportionment standards the commission was directed to implement could not be severed

from the commission itself.167 Nothing about the commission was intrinsically

unconstitutional. Thus, to the extent that the Legislature’s power is being diminished,

that power had not been granted by the people through the Constitution. If anything,

VNP’s proposal is an attempt to correct the constitutional deficiencies so that the basic

design of the 1963 Constitution—which created an independent redistricting

decision in 1982 rendering the redistricting commission ineffective. The theory of

legislative acquiescence is that the Legislature, by failing to correct a judicial decision,

has acquiesced in that decision. See generally McCahan v Brennan, 492 Mich 730, 749-

750; 822 NW2d 747 (2012). The Chief Justice’s dissent suggests this basic theory should

be imported here, based on “the entirety of the ‘indirect input’ in representative self-

government in which the people have been engaged during the ensuing 55 years . . . .”

Post at 24 n 14. That is simply another way of saying that our analysis should credit the

people’s inaction—that they have somehow acquiesced in our 1982 decision. But we

have rightly rejected theories of interpretation relying on acquiescence by nonaction. See

McCahan, 492 Mich at 749-750 (“First and foremost, legislative acquiescence has been

repeatedly repudiated by this Court because it is . . . an exceptionally poor indicator of

legislative intent. When used in a case like this, the theory requires a court to intuit

legislative intent not by anything that the Legislature actually enacts, but by the absence

of action. Yet ‘a legislature legislates by legislating, not by doing nothing, not by

keeping silent.’ Thus, the doctrine of legislative acquiescence ‘is a highly disfavored

doctrine of statutory construction; sound principles of statutory construction require that

Michigan courts determine the Legislature’s intent from its words, not from its

silence.’ ”) (citations omitted); see also Markman, On Interpretation, at 226 n 60 (“[N]o

sensible theory of statutory interpretation would require Congress to devote a substantial

portion of its time to extinguishing judicial forest fires.”). Given that it is much more

difficult for the people to directly act on this topic—i.e., amend the Constitution—their

failure to act sheds even less light on the matter.

167

See In re Apportionment of State Legislature—1982, 413 Mich at 116.

47

commission—can be implemented. We cannot reasonably conclude that this effort to

revivify and improve upon a feature of the present Constitution amounts to a substantial

alteration in the form or structure of our government.168

The executive branch is not significantly affected by the proposal. Under the 1963

Constitution, the executive played no role in redistricting except for the Secretary of

State’s various responsibilities. Those would expand under VNP’s proposal, as noted

above, but not in any material respect. VNP’s proposal neither adds to nor subtracts from

any other responsibilities or powers of the executive branch compared to its position

under the present Constitution. Any additional powers the executive might currently

have—such as a veto over the Legislature’s statutorily drawn redistricting—do not flow

from a constitutional grant of power, but instead from the provisional situation that has

been created by declaring the 1963 commission to be inseverable from the

unconstitutional apportionment standards.

Finally, VNP’s proposal only modestly changes the judicial branch’s role in the

redistricting process. The 1963 Constitution has provided this Court with jurisdiction

when the commission reached an impasse, which it often did.169 In such cases, the

168

Cf. Laing, 259 Mich at 217 (“Amendment implies continuance of the general plan and

purport of the law, with corrections to better accomplish its purpose.”); Opinion of the

Justices, 264 A2d at 346 (“A constitutional ‘amendment’ was defined . . . as ‘such an

addition or change within the lines of the original instrument as will effect an

improvement or better carry out the purpose for which it was framed.’ ”) (emphasis

added), quoting Livermore, 102 Cal at 118-119; see also Bess, 985 P2d at 985 (quoting

the same language from Livermore).

169

Const 1963, art 4, § 6.

48

commission members could submit proposed plans to this Court, and we would have to

select the one that best reflected constitutional requirements.170 Additionally, the

Constitution provided us original jurisdiction over applications by electors after the

commission published a plan—we could then direct the Secretary of State and the

commission to “perform their duties,” review the commission’s proposed plan, and

remand the plan to the commission “if it fails to comply with the requirements of this

constitution.”171 Thus, the Constitution offered this Court a limited array of options to

review redistricting plans. VNP’s proposal does likewise. In some ways, in fact, the

review is slightly broader. When the original commission failed to reach agreement

under the current Constitution, this Court was empowered only to select between the

plans proposed by the commission members. Under VNP’s proposal, we can review any

challenge to a plan for compliance not only with this Constitution, but also the United

States Constitution and “superseding federal law.”172 Thus, the Court would no longer

have the option to choose a plan—from those presented—but it would maintain the same

general powers it wielded under the 1963 Constitution as ratified.173

170

Id.

171

Id. (emphasis added).

172

VNP proposal, art 4, § 6(19).

173

Under the present state of affairs, the Legislature has reconfirmed our “original state

jurisdiction provided under section 6 of article IV of the state constitution of 1963 . . . .”

MCL 4.262(3). While the statute provides a few other powers that we would lack under

VNP’s proposal, it must be repeated that the present system of redistricting is merely a

stopgap designed to address the fact that the relevant constitutional provisions are not

currently in effect. As a result, the system does not flow explicitly from the Constitution.

49

In sum, VNP’s proposal leaves the form and structure of the government

essentially as it was envisioned in the 1963 Constitution. Consequently, it is not

equivalent to a new constitution and is therefore a permissible amendment under Const

1963, art 12, § 2.174

This conclusion finds support from a host of other considerations. It is consistent

with the expectations of key members of the 1961–1962 constitutional convention, as

evidenced by their discussion of the signature requirement in Article 12, § 2. During that

discussion, which centered on whether to add an alternative requiring only 300,000

signatures,175 some delegates expressed the belief that a voter-initiated amendment could

be used to change the apportionment system, which was a noted problem at the

convention. One delegate—referring to the United States Supreme Court’s then-recent

decision in Baker v Carr, which opened the door to constitutional challenges to

redistricting176—thought that the initiative could be “a remedy to the problem of

174

Indeed, for this reason, this proposal should be construed as an “amendment” even

under the standard set forth in the Chief Justice’s dissent. The dissent argues that the

essential inquiry is whether the VNP proposal “fundamentally change[s] the operation of

our government,” post at 37, but as we have shown, no fundamental change is being

wrought relative to what the voters themselves approved in 1963. The dissent gets

around this by arguing that popular acquiescence in the provisional arrangement this

Court put in place in 1982 amounts to a de facto amendment of the Constitution, but as

noted earlier in this opinion, this Court has rejected acquiescence as a technique of

interpreting legislative texts.

175

See pages 22 through 23 of this opinion.

176

Baker, 369 US at 237.

50

reapportionment.”177 Delegate Stevens, one of the leading proponents of keeping the

amendment process difficult, agreed, opining that “the initiative could be used for

amending the constitution to make apportionment . . . or changing the apportionment

easier.”178

Similarly, when declaring the redistricting commission not viable in 1982, this

Court suggested that our apportionment system could be addressed through an

amendment to the Constitution initiated by the people.179 Our statement, quoted above,

bears repeating: “The power to redistrict and reapportion the Legislature remains with

the people.”180 It was only because the amendment process—whether initiated by the

Legislature or the people—was time-consuming that we invited the Legislature to fill the

void.181 As Justice LEVIN later explained, our approach in 1982 was based, in part, on the

“assumption . . . that responsible persons would come forth and place on the ballot, and

the people would adopt, new apportionment rules in time for the 1992 and 1994 elections.

177

2 Official Record, Constitutional Convention 1961, p 2463 (“[I]t seemed to me that

one of the important things for Michigan to pass muster is to be sure that the people have

a remedy to the problem of reapportionment, and that ease of amending the constitution

would be an important remedy.”) (statement of Delegate Dorothy Judd).

178

Id. (statement of Delegate Stevens).

179

In re Apportionment of State Legislature—1982, 413 Mich at 139-140. As another

court similarly noted, “The makeup and apportionment of the Legislature . . . . are

[questions] far better entrusted to the collective political wisdom of the Legislature

subject to the power of initiative and referendum reserved to the people.” Silver v Brown,

63 Cal 2d 270, 280; 405 P2d 132 (1965) (emphasis added).

180

In re Apportionment of State Legislature—1982, 413 Mich at 139 (emphasis added).

181

Id. at 140.

51

Indeed, that was one of the arguments for non-severability—to highlight the need for a

new constitutional provision regarding legislative apportionment.”182 “The Court’s

exhortation,” he added, “has not been heeded.”183

The history of our constitutional amendments, too, supports treating VNP’s

proposal as a proper voter-initiated amendment.184 Most directly, the voters have in the

past proposed a number of amendments dealing with apportionment,185 including one

successful amendment that, in certain circumstances, expressly stripped the Legislature of

the power to redistrict. In 1952, voters initiated two competing constitutional

amendments addressing apportionment.186 The successful amendment “guaranteed the

decennial reapportionment of the house of representatives substantially on a population

basis, and fixed senate districts permanently in the constitution . . . .”187 The Legislature

182

In re Apportionment of State Legislature, 437 Mich 1208, 1211 (1990) (statement of

LEVIN, J.).

183

Id.

184

See Young, Jr., A Judicial Traditionalist Confronts Unique Questions of State

Constitutional Law Adjudication, 76 Alb L Rev 1947, 1949 (2013) (noting that if doubt

remains as to the meaning of a constitutional provision, courts can use “anything else that

might provide an historical context”).

185

Indeed, earlier initiatives dealing with apportionment were placed on the ballot in

1924, 1928, and 1930. See Pollock, The Initiative and Referendum in Michigan (Ann

Arbor: University of Michigan Press, 1940), pp 81-82.

186

Michigan: A History, pp 548-549.

187

Lamb, Pierce & White, Apportionment and Representative Institutions: The Michigan

Experience (Washington, DC: Institute for Social Science Research, 1963), p 130; see

also Const 1908, art 5, §§ 2 through 4 (as amended).

52

was responsible for reapportioning the house, but, critically, if it failed to do so “in

accordance with the mandate of this [constitutional] article, the board of state canvassers”

was required to reapportion the districts.188 In other words, the voters initiated an

amendment that, in certain cases, eliminated the Legislature’s reapportionment power and

gave it to an agency in the executive branch. By comparison, VNP’s proposal is more

modest—the present Constitution prescribes a commission for these purposes, and VNP’s

amendment would retain that commission. The voters have also approved, in the past,

various amendments creating commissions or affecting the powers of government at

various levels and branches.189

Other states have created independent redistricting commissions through voter-

initiated amendments, including Arizona and California.190 And the issue of whether to

188

Const 1908, art 5, § 4 (as amended).

189

For example, in 1940, the people voted to amend Const 1908, art 6, to create the Civil

Service Commission, which manages employment for all three branches of government.

See Const 1908, art 6, § 22; Const 1963, art 11, § 5. In 1968, the people successfully

amended article 6 of our Constitution to create the Judicial Tenure Commission, a body

tasked with investigating instances of judicial misconduct throughout the state. See

Const 1963, art 6, § 30. The people enacted the Headlee Amendment in 1978,

significantly limiting the taxing powers of state and local government. See Const 1963,

art 9, §§ 6, 25 through 34. Term limits for members of the Legislature, as well as the

Governor, Attorney General, and Secretary of State, were established by initiative in

1992. See Const 1963, art 4, § 54; Const 1963, art 5, § 30.

190

See Arizona State Legislature v Arizona Independent Redistricting Comm, 576 US

___, ___; 135 S Ct 2652, 2662; 192 L Ed 2d 704 (2015) (“Some States, in common with

Arizona, have given nonpartisan or bipartisan commissions binding authority over

redistricting. The California Redistricting Commission, established by popular initiative,

develops redistricting plans which become effective if approved by public referendum.”).

53

create such a commission has appeared on the ballot, by virtue of the initiative process,

numerous times in multiple states.191 Similarly, citizens in several states have employed

initiatives to accomplish redistricting.192

Our conclusion today is also reinforced by the reasoning in Bess v Ulmer, which

addressed a similar argument concerning a similar ballot proposal.193 In Bess, a

“Legislative Resolve” placed a proposed amendment before the voters that would remove

the reapportionment power from the executive branch (where the state’s constitution had

placed it) and transfer it to a “neutral body.”194 Using a test similar to what the Court of

Appeals employed in this case—focusing on the quantity and quality of the proposed

changes and whether the changes were few, simple, and of less importance—the Alaska

Supreme Court determined that the proposal was an amendment:

191

Stephanopoulos, Reforming Redistricting: Why Popular Initiatives to Establish

Redistricting Commissions Succeed or Fail, 23 J L & Pol 331, 343-377 (2007)

(discussing in detail 12 times when the question of creating a redistricting commission

was voted on as a result of voter-initiated amendments).

192

See Miller, Direct Democracy and the Courts (New York: Cambridge University

Press, 2009), p 151 (“In several initiative states, citizen lawmakers participated in

legislative redistricting. For example, in Arizona (1918, 1932), California (1926),

Colorado (1932, 1962), Oregon (1952), and Washington (1956), citizens used the

initiative power either to determine district lines or to establish new criteria for the

legislature to follow when drawing districts.”); id. at 152 n 122 (noting that “[c]itizen

lawmakers in two other states, Arkansas (1936) and Michigan (1952), also accomplished

redistricting through the initiative process”).

193

Bess, 985 P2d at 981.

194

Id. at 988.

54

Reassigning this power is unquestionably a significant change in the

present system of Alaskan government. It does not, however, deprive the

executive branch of a “foundational power,” and as a result does not

constitute a revision. As the quantitative effect of the proposal is minimal,

the qualitative force of this narrow change would have to be greater to

satisfy our hybrid test. The essential function of the executive branch—to

enforce the laws of the state—remains unchanged, as does its structure. No

executive power is delegated to either of the other two branches. In fact,

the intent of the Framers in giving the reapportionment power to the

executive was primarily to prevent the abuse or neglect of that power in the

hands of the legislature, rather than to safeguard a uniquely executive

function.[195]

In our case, the framers of the 1963 Constitution did not assign the apportionment power

to any elected body, and so the effect of the changes here would be even less significant

than that in Bess.196

Thus, our holding here reflects the constitutional text, our historical experience,

logic, and the wisdom of other states. For all the above reasons, then, we conclude that

VNP’s proposal does not create the equivalent of a new constitution by significantly

altering or abolishing the form or structure of our government and is, instead, a

permissible voter-initiated amendment.197

195

Id. (citations omitted).

196

Though Bess used a qualitative/quantitative test, its underlying reasoning regarding

the effect of the amendment on the balance of powers is useful under the standard we

adopt today.

197

CPMC also argues, and Justice WILDER agrees in his separate dissent, that the VNP

proposal cannot be put on the ballot because the proposal failed to republish “existing

provisions of the constitution which would be altered or abrogated thereby . . . .” Const

1963, art 12, § 2. In particular, Justice WILDER concludes that the VNP proposal

abrogates the Oath Clause, Const 1963, art 11, § 1, which states that, excepting the oath

that officers will “faithfully discharge the duties” of their offices, “[n]o other oath,

affirmation, or any religious test shall be required as a qualification for any office or

55

V. CONCLUSION

The question we face today has broad significance for the people of this state:

what limitations have they placed, in the Constitution they ratified, on their power to put

forward voter-initiated amendments? This question implicates some of the oldest and

public trust.” The VNP proposal requires applicants to “attest under oath that they meet

the qualifications set forth in this section; and either that they affiliate with one of the two

political parties with the largest representation in the Legislature . . . and if so, identify

the party with which they affiliate, or that they do not affiliate with either of the major

parties.” VNP Proposal, art 4, § 6(2)(A)(III) (emphasis added). Because of this

abrogation, according to Justice WILDER’s dissent, VNP was required to republish Const

1963, art 11, § 1, and because it did not, the proposal must be kept off the ballot.

We do not agree that the VNP proposal amounts to an abrogation under Const

1963, art 12, § 2 by requiring an oath that is prohibited under Const 1963, art 11, § 1. As

VNP noted in its brief, our Court addressed this basic issue in Tedrow v McNary, 270

Mich 332; 258 NW 868 (1935). In that case, the issue was whether the Oath Clause

prohibited a statute that required candidates for a certain public office to file an affidavit

or other evidence of their educational qualifications. We upheld the requirement,

observing that the Legislature could prescribe qualifications for office and that requiring

proof of those qualifications, including in the form of an affidavit, “in no way conflicts

with the constitutional provision.” Id. at 335. See also Attorney General v Macdonald,

164 Mich 590, 593; 129 NW 1056 (1911) (holding that a residency requirement “is not ‘a

test,’ as that word is used in the Constitution, but is rather a special qualification”). This

reasoning is why, for example, all judicial candidates are statutorily required to complete

an “affidavit . . . stating that he or she possesses the constitutional qualifications set forth

in section 19 of article VI of the state constitution.” MCL 168.544b. Otherwise, it would

be impossible to require judicial candidates to confirm that they meet the constitutional

qualifications for office. And it is also why all candidates for elective office in Michigan

(except those running for president or vice president of the United States) are required to

file an affidavit of identity. MCL 168.558. Further, as Justice WILDER notes in his

dissent, there is nothing improper about inquiring into a candidate’s political affiliation to

determine eligibility for a bipartisan commission or board. Therefore, because the VNP

proposal simply requires candidates to attest to their qualifications for a position on the

commission—a requirement Tedrow allows—the proposal in no way “renders [the Oath

Clause] wholly inoperative.” Protect Our Jobs, 492 Mich at 773; see also Massey v

Secretary of State, 457 Mich 410, 418; 579 NW2d 862 (1998); Ferency, 409 Mich at 597.

56

most perplexing problems in political theory, such as the nature of sovereignty,

republicanism, and democracy. But it is not a judge’s role to philosophize a theory of

government. Rather, we are stewards of the people and must faithfully abide by the

decisions they make through the laws they adopt. We accomplish this by adhering to the

plain meaning of the text of those laws. Here, that approach leads us to conclude that a

voter-initiated amendment under Const 1963, art 12, § 2 is permissible if it does not

significantly alter or abolish the form or structure of our government, making it

tantamount to creating a new constitution. VNP’s proposal surpasses these hurdles and is

a permissible voter-initiated amendment under Article 12, § 2. Accordingly, the

judgment of the Court of Appeals is affirmed. Pursuant to MCR 7.315(C)(3), the Clerk

of the Court is directed to issue the judgment forthwith.

David F. Viviano

Bridget M. McCormack

Richard H. Bernstein

Elizabeth T. Clement

57

STATE OF MICHIGAN

SUPREME COURT

CITIZENS PROTECTING MICHIGAN’S

CONSTITUTION, JOSEPH SPYKE, and

JEANNE DAUNT,

Plaintiffs-Appellants,

v No. 157925

SECRETARY OF STATE and

BOARD OF STATE CANVASSERS,

Defendants/Cross-Defendants-

Appellees,

and

VOTERS NOT POLITICIANS BALLOT

COMMITTEE, d/b/a VOTERS NOT

POLITICIANS; COUNT MI VOTE, d/b/a

VOTERS NOT POLITICIANS; KATHRYN

A. FAHEY; WILLIAM R. BOBIER; and

DAVIA C. DOWNEY,

Intervening Defendants/Cross-

Plaintiffs-Appellees.

MARKMAN, C.J. (dissenting).

I respectfully dissent from the majority’s affirmance of the judgment of the Court

of Appeals. The majority concludes that the proposal at issue, i.e., the Voters Not

Politicians (VNP) proposal, is eligible for placement on the November 2018 election

ballot by the initiative process of Const 1963, art 12, § 2. I dissent because I conclude

that the proposal constitutes a “general revision” of the Constitution and thus is eligible

for placement on the ballot only by the convention process of Const 1963, art 12, § 3.

I. INTRODUCTION

This case, I would emphasize, does not concern whether the VNP proposal is wise

or unwise, prudent or imprudent. Nor does it concern whether the people of this state

possess the ultimate authority to restructure the government of this state, for they

indisputably do. Rather, it concerns only whether the VNP proposal is better understood

as a constitutional “amendment,” and thus eligible for placement on the ballot by the

initiative process, or a “general revision” of the Constitution, and thus eligible for

placement on the ballot only by the convention process.

The “people” have been referenced frequently during oral argument and by the

majority opinion, as if merely to invoke their name compels the conclusion that the

present measure must be placed on the ballot. However, the “people” wear many hats.

The “people” invoke the initiative process, or at least 315,654 “people” do so; the

“people” vote on the initiative process; “[w]e, the people” have ordained and established

our Constitution, Const 1963, preamble; all political power is inherent in the “people,”

Const 1963, art 1, § 1; government is instituted for the equal benefit, security, and

protection of the “people,” id.; laws and ordinances issued under the Constitution define

the rights and responsibilities of the “people”; and, of course, 13 “people,” all randomly

selected, are to sit on the commission established by the VNP proposal. After assessing

the interests of the “people” in this matter, I believe that what is most significant is that

these “people” have made it reasonably clear that the permanent things of their

2

Constitution are not to be cast away lightly-- that while ultimately the “people” do

possess the authority to restructure their own charter of government, as to the most

fundamentally redefining of these changes, this restructuring will be done only after the

most reflective and deliberative processes of decision-making. And my further

assessment persuades me that the “people” would find “fundamentally redefining” a

restructuring of their Constitution that deprived them and their chosen representatives of

any role in the foundational process of our system of self-government-- the process by

which election districts are established, citizens are joined together or separated by

political boundaries, and the building blocks of our governing institutions are determined.

Inserted in place is the governance of 13 randomly selected “people” entirely lacking in

any democratic or electoral relationship with the other 10 million “people” of this state or

their elected representatives. In the end, the “people” must be allowed to do as they see

fit; they can diminish the realm of governance of their representatives (and substitute in

its place an “independent” and unaccountable commission) and they can dilute the

relationship between themselves and their representatives, but the “people,” as I

understand them to have spoken through their Constitution, have also insisted that, before

a change of this magnitude takes place, a serious and considered public conversation

must first take place, affording opportunities for sustained and focused debate, give-and-

take, compromise, and modification.

Furthermore, references to the fact that the commission is to be “independent”

obscures the fundamental change that the proposed measure would make to the

“people’s” Constitution as well; the great value of our Constitution is not the

“independence” of public bodies but rather the separation of powers and the checks and

3

balances that define relationships between public bodies and thereby limit and constrain

their authority. While the VNP commission would indeed be “independent,” most

conspicuously, it would be “independent” of the people’s representatives in the

Legislature, independent of the people, and independent of the processes of self-

government, especially the processes by which the “people”-- in whose name both VNP

and the majority purport to speak-- exert their impact upon the “foundational” process of

redistricting. Our constitutional heritage is poorly described by advocates of this

proposal as one predicated upon the “independence” of public bodies; it is far better

described as predicated upon the exercise of public authority that is limited, separated,

subject to appropriate checks and balances, and accountable to the citizenry. The

proposed new commission is grounded upon none of these. Whatever its merits, the

creation of this commission would effect “fundamental” change upon both our

constitutional charter and the system of government operating under this charter. It thus

clearly warrants the kind of careful deliberation best afforded by the processes of

constitutional “revision” set forth in Article 12, § 3 of this state’s Constitution.

II. BACKGROUND

The people have reserved to themselves the authority to modify the Constitution

by petition and popular vote. “This Court has consistently protected the right of the

people to amend their Constitution in this way, while enforcing constitutional and

statutory safeguards that the people placed on the exercise of that right.” Protect Our

Jobs v Bd of State Canvassers, 492 Mich 763, 772; 822 NW2d 534 (2012). Indeed, a

4

century ago, in Scott v Secretary of State, 202 Mich 629, 643; 168 NW 709 (1918), this

Court stated:

Of the right of qualified voters of the State to propose amendments

to the Constitution by petition it may be said, generally, that it can be

interfered with neither by the legislature, the courts, nor the officers

charged with any duty in the premises. But the right is to be exercised in a

certain way and according to certain conditions, the limitations upon its

exercise, like the reservation of the right itself, being found in the

Constitution. [Emphasis added.]

In the instant case, we must decide whether the right is being exercised “in a certain way

and according to certain conditions . . . being found in the Constitution.” Id.

Const 1963, art 12, § 2 addresses amendments of the Constitution through the

initiative process and provides:

Amendments may be proposed to this constitution by petition of the

registered electors of this state. Every petition shall include the full text of

the proposed amendment, and be signed by registered electors of the state

equal in number to at least 10 percent of the total vote cast for all

candidates for governor at the last preceding general election at which a

governor was elected. Such petitions shall be filed with the person

authorized by law to receive the same at least 120 days before the election

at which the proposed amendment is to be voted upon. Any such petition

shall be in the form, and shall be signed and circulated in such manner, as

prescribed by law. The person authorized by law to receive such petition

shall upon its receipt determine, as provided by law, the validity and

sufficiency of the signatures on the petition, and make an official

announcement thereof at least 60 days prior to the election at which the

proposed amendment is to be voted upon.

Any amendment proposed by such petition shall be submitted, not

less than 120 days after it was filed, to the electors at the next general

election. Such proposed amendment, existing provisions of the constitution

which would be altered or abrogated thereby, and the question as it shall

appear on the ballot shall be published in full as provided by law. Copies

of such publication shall be posted in each polling place and furnished to

news media as provided by law.

5

The ballot to be used in such election shall contain a statement of the

purpose of the proposed amendment, expressed in not more than 100

words, exclusive of caption. Such statement of purpose and caption shall

be prepared by the person authorized by law, and shall consist of a true and

impartial statement of the purpose of the amendment in such language as

shall create no prejudice for or against the proposed amendment.

If the proposed amendment is approved by a majority of the electors

voting on the question, it shall become part of the constitution, and shall

abrogate or amend existing provisions of the constitution at the end of 45

days after the date of the election at which it was approved. If two or more

amendments approved by the electors at the same election conflict, that

amendment receiving the highest affirmative vote shall prevail.

Const 1963, art 12, § 3 addresses general revisions of the Constitution through the

convention process and provides:

At the general election to be held in the year 1978, and in each 16th

year thereafter and at such times as may be provided by law, the question of

a general revision of the constitution shall be submitted to the electors of

the state. If a majority of the electors voting on the question decide in favor

of a convention for such purpose, at an election to be held not later than six

months after the proposal was certified as approved, the electors of each

representative district as then organized shall elect one delegate and the

electors of each senatorial district as then organized shall elect one delegate

at a partisan election. The delegates so elected shall convene at the seat of

government on the first Tuesday in October next succeeding such election

or at an earlier date if provided by law.

The convention shall choose its own officers, determine the rules of

its proceedings and judge the qualif

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