In Reproductive Freedom For All v. Board of State Canvassers, (MI Sup. Ct., Sept. 8, 2022), the Michigan Supreme Court in a per curiam Order of Mandamus directed the Board of State Canvassers to certify the proposed Reproductive Freedom For All state constitutional amendment for placement on the November 8 election ballot. The Board of State Canvassers had deadlocked 2-2 along party lines with those voting against approval citing a typographical problem that led to several words being run together at places in the text of the proposed amendment as set out in the petitions that were circulated. (See prior posting.) In its Order, adopted by a 5-2 vote, the Court said in part:
It is undisputed that there are sufficient signatures to warrant certification. The only challenge to the petition is in regard to whether there is sufficient space between certain words of the text of the proposed amendment. MCL 168.482(3) requires only that “[t]he full text of the amendment so proposed must follow the summary and be printed in 8-point type.” The “full text” of the amendment is present: regardless of the existence or extent of the spacing, all of the words remain and they remain in the same order, and it is not disputed that they are printed in 8-point type. In this case, the meaning of the words has not changed by the alleged insufficient spacing between them.
Chief Justice McCormack filed a concurring opinion, saying in part:
[Two members of the Board of State Canvassers] would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad.
Justice Bernstein also filed a concurring opinion. Justice Zahra filed a dissenting opinion, saying in part:
[T]he Court, under the pressure to decide the question forthwith in order to ensure timely production of the ballots, has decided to grant mandamus without oral argument. While I would prefer to engage in oral argument before deciding this issue, pressed for a ruling, I must conclude that plaintiffs have not met their burden of establishing a clear legal right to a writ of mandamus.
Justice Viviano filed a 14-page dissenting opinion, saying in part:
For well over a thousand years, we have conveyed thought and meaning by using spaces between words.... It was not always so. Ancient text employed scriptura continua, in which words were uninterrupted by word spaces.... But the objectives of reading in ancient times were different, with the focus being on memorization useful to an oral rather than a text-based culture....
If the full-text requirement is subject to an analysis that asks whether the meaning has sufficiently changed or become ambiguous enough to potentially mislead,... then presumably the determination of whether the full text is present involves at least some discretion. That is, a factual determination concerning the extent of the error and its probable effects must be made by the board. But if so, then it is hard to see how this decision can be characterized as ministerial and thus subject to mandamus.
NPR reports on the decision.
