Federal Appeals Court to Decide If State Lawmakers Have Standing in Michigan Election Case

The 11 Republican legislators contend that Democratic Gov. Gretchen Whitmer and others violated the U.S. Constitution’s elections clause.

Michigan Gov. Gretchen Whitmer speaks during the last day of the Democratic National Convention in Chicago on Aug. 22, 2024. Madalina Vasiliu/The Epoch Times

In a pivotal case pending in the Sixth U.S. Circuit Court of Appeals, 11 Michigan state legislators argue that they have individual standing to sue Michigan Gov. Gretchen Whitmer and top election officials over what they regard as unconstitutionally usurping the state Legislature’s power to regulate the administration of federal elections.

The suit was prompted by citizen initiatives in 2018 and 2022 that passed by wide margins and made numerous, significant changes in the conduct of federal elections in Michigan.

The 11 appellants, all Republicans, contend that they, as individual legislators, have been illegally deprived of their right to vote on the regulations and that Whitmer, a Democrat, and her co-defendants failed to protect those rights.

The legislators allege that the defendants “support and enforce laws that violate the United States Constitution’s Election Clause” and that the enacted amendments are null and void “when they directly or indirectly regulate federal elections.”

Whitmer’s legal team argues that only an entire legislature, or at least a majority or controlling segment, has standing to bring suit in such cases.

The case originated in September 2023 in the U.S. District Court for the Western District of Michigan, where Judge Jane Beckering dismissed the suit for lack of standing without considering the merits of the case. Her decision is the subject of the current appeal.

The plaintiffs—two state senators and nine representatives—base their complaint on the language of Article l, Section 4, of the U.S. Constitution, which states in part, “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

Defendants argue that the people, through the lawfully instituted initiative process, as laid out in Article 12, Section 2, of the Michigan Constitution, can propose and adopt constitutional amendments and laws—a power that they say makes the people an extension of the Legislature.

A Historic Case

“This case has national importance and historic significance because it would be the first time federal courts have recognized individual state legislator standing in a case involving usurpation of a state legislature’s power under the Elections Clause to regulate the times, places, and manner of federal elections,” said constitutional lawyer Erick Kaardal, the plaintiffs’ attorney.

Kaardal told The Epoch Times that if his clients prevail, “many federal and state executive encroachments on state legislative power under the Elections Clause will be challenged in federal lawsuits.”

The ballot initiatives in question amended the Michigan Constitution to make voter registration automatic upon a resident doing any business with an office under the secretary of state, later expanding it to other departments. They did away with photo ID requirements and shortened residency requirements.

The measures legalized Election Day voter registration, no-reason absentee voting, the curing of mistakes on absentee ballot envelopes, and made absentee voter status permanent upon request, among other changes.

The ballot initiatives also enshrined into the state cCnstitution absentee ballot drop boxes, state-funded pre-paid postage on election envelopes, and nine consecutive days of early voting at an expanded number of polling sites.

2 Different Views

At the time, Republicans protested that the wording of the complicated proposals was intentionally vague and confusing and warned that the amendments would weaken election integrity and ballot security.

Constitutional attorney Erick G. Kaardal. Courtesy Erick G. Kaardal

Democrats contended that the amendments would make it easier for people to vote and would lead to higher turnout.

The legislators’ complaint claims that the above actions, which directly impacted the conduct of federal elections, were drafted, petitioned, and placed on the ballot without the participation or approval of the Legislature.

The offices of Whitmer, Secretary of State Jocelyn Benson, and Attorney General Dana Nessel did not respond to a request for comment.

According to Kaardal, because the Michigan Legislature has not sued to rectify the “unconstitutional” 2018 and 2022 amendments, the 11 state legislators decided to bring suit.

“The lawsuit addresses a dark time in Michigan where the Elections Clause was set aside for expediency,” he said.

Kaardal told The Epoch Times that because of his clients’ legal action, “the claims have been presented in federal court to fix the constitutional problems created by the 2018 and 2022 amendments.”

Kaardal called on the federal judiciary “to do their part” in seeing that the elections clause of the U.S. Constitution is followed when state laws are enacted that regulate federal elections.