The committee behind a statewide ballot initiative to expand civil rights protections for LGBTQ people is prepared for a legal battle after state election officials ruled the campaign had an insufficient number of public signatures to advance the proposal.
The Michigan Board of State Canvassers — acting on a staff report from the Department of State — unanimously rejected Fair and Equal Michigan’s petition signatures at a July 26 meeting.
State officials said the campaign, which has widespread support among Michigan business groups and large employers, didn’t have enough valid signatures to advance the proposal either to the state Legislature or to voters in November 2022.
Fair and Equal Michigan officials said late last week that a challenge at the Michigan Supreme Court was imminent. The deadline to file an appeal is Aug. 4.
“From there, we’ll follow the legal process to its conclusion,” Fair and Equal Michigan spokesperson Josh Hovey told MiBiz last week.
Fair and Equal Michigan seeks to codify protections for LGBTQ people in employment, housing and public accommodations by amending the state’s Elliott-Larsen Civil Rights Act to ban discrimination based on sexual orientation or gender identity.
The ballot initiative is one of multiple avenues to ensuring civil rights for the LGBTQ community, which has seen some recent success after the U.S. Supreme Court ruling last year that bars workplace discrimination based on sexual orientation and gender identity.
Expanding Elliott-Larsen, which has stalled for years in the Republican-held Michigan Legislature, has evolved into a major issue within the state’s business community. The lack of clarity on LGBTQ civil rights in Michigan is also a talent attraction and retention issue, according to Fair and Equal Michigan’s backers, which include major employers like General Motors, Herman Miller Inc. and Consumers Energy.
Election law questions
Several complicating factors and legal questions surround the Fair and Equal Michigan initiative, whose signature-gathering process was disrupted last year by the COVID-19 pandemic. The campaign claims state Bureau of Elections staff erred “dozens” of times by claiming signatures were invalid. The state also said nearly 18,700 signatures collected electronically are invalid, which Fair and Equal Michigan will likely challenge in court because “nothing in state law prohibits” using electronic signatures for petitions, Hovey said.
“We submitted what we felt were more than enough signatures,” Hovey said. “We scrubbed our petitions before turning them in, working to ensure we had a quality level that would pass the review by the state.”
Fair and Equal Michigan was required to gather 340,047 valid signatures to send the proposal to state lawmakers for approval or, if they declined, to voters in November 2022.
The Bureau of Elections’ most recent staff report on July 22 randomly sampled hundreds of signatures to determine whether enough of the roughly 450,000 signatures submitted were valid. The Bureau and Fair and Equal Michigan had several disputes during the review process involving electronic signatures, duplicates, the identity of petition signers and other inconsistencies.
The Bureau of Elections ultimately found that, based on the random sample results, Fair and Equal Michigan submitted “an estimated 263,460 valid signatures (at a confidence level of 100 percent), 76,587 signatures fewer than the minimum number required.”
A spokesperson for the Secretary of State declined to comment beyond the staff report.
Fair and Equal Michigan has also said that the Department of State has failed for more than 15 years to issue rules establishing clear standards on the validity of petition signatures.
Religious concerns, legislative optimism
Outside of state election law, constitutional questions around freedom of religion continue to play a key role in efforts to ban discrimination based on sexual orientation and gender identity.
Citizens for Equality Fairness and Justice, a group formed earlier this year to oppose Fair and Equal Michigan, has challenged the signatures before the Board of State Canvassers on multiple occasions in the past two months. The oppositiongroup so far has been almost entirely funded by nearly $240,000 in direct and in-kind contributions from the Michigan Catholic Conference, “the official voice of the Catholic Church in Michigan on matters of public policy.” The contributions were first made public last week in campaign finance reports.
In a statement, the Michigan Catholic Conference called the Fair and Equal Michigan proposal an “unprecedented and likely unconstitutional provision to define religion only as a person’s individual beliefs and would restrict the ability for religious organizations to provide humanitarian aid and social services in the public square. The proposal would have a crushing impact on the poor of Michigan by harming many Catholic and Christian, Muslim, and Jewish organizations who daily and outwardly express their faith as a way of life out of love for their neighbor.”
For years, Republican efforts to include religious exemptions in any expansion of Elliott-Larsen have stalled negotiations at the state Capitol.
Andy Johnston, vice president of government affairs with the Grand Rapids Area Chamber of Commerce, said religion is among a “whole host of issues that need to be addressed” before proposals advance in court or the state Legislature.
“Any legislative solution is going to have to balance those” religious concerns, Johnston said. The Grand Rapids Chamber hasn’t formally endorsed the Fair and Equal Michigan campaign, and instead is backing a legislative agreement.
“The preferred route really is still the legislative solution — we still want to see the urgency and desire on all sides to do that,” Johnston said.
Hovey countered that while the Michigan Catholic Conference “takes issue with our proposed definition of religion as ‘a person’s beliefs,’ religion is inherently personal to most people.”
He added that Elliott-Larsen “already provides exemptions for religious institutions … and that language in our proposal does not change those exemptions. At the end of the day, what opponents to our initiative are asking for is to continue being able to use religion as a license to discriminate.”