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Eleven Republican Michigan legislators want the U.S. Supreme Court to consider a case that could overturn some of the biggest expansions of voting rights in Michigan’s history.
They’re asking the nation’s highest court to determine whether they have the right to sue to overturn a set of popular statewide measures approved by voters through ballot initiatives, claiming those measures violate the U.S. Constitution. These include automatic registration, no-reason absentee voting, and straight-party voting, passed as part of 2018’s Proposal 3, as well as early voting, the permanent absentee-ballot list, and ballot drop boxes from Proposal 2 in 2022.
Their argument relies on a controversial legal interpretation called the Independent State Legislature theory, which suggests that under the Constitution’s elections clause, only state legislatures — not any other entity, including courts or the voters themselves through ballot initiatives — have the authority to set election laws. The Supreme Court has rejected this theory repeatedly in previous cases.
“Literally every time [the Supreme Court has] weighed in on it — and it’s weighed in on this several times in the last 10 years — they’ve said ‘this really isn’t a thing,‘” Justin Levitt, a professor of constitutional law at Loyola Marymount University and voting rights expert, told Votebeat.
Legislators leading the suit include Sen. Jim Runestad, chair of the Michigan Republican Party, and Rep. Rachelle Smit, speaker pro tempore of the Michigan House and chair of the House Election Integrity Committee. Multiple lower courts rejected their claims, saying the plaintiffs did not have legal standing to sue, but the lawmakers hope the Supreme Court will offer a different interpretation.
The case is Lindsey v. Whitmer, named for Sen. Jonathan Lindsey, the first plaintiff in the case and Gov. Gretchen Whitmer, one of three state officials named as defendants alongside Secretary of State Jocelyn Benson and Michigan Director of Elections Jonathan Brater. It was most recently rejected by the 6th U.S. Circuit Court of Appeals. Judge Jeffrey Sutton wrote in December that “federal courts remain wary of allowing political losers to sidestep their colleagues” in pursuit of a do-over in “a sympathetic court.”
Derek Muller, a professor of election law at the University of Notre Dame, said that the suit would have more credibility if it came from the Legislature itself rather than individual legislators. But Republicans control only one of the two chambers.
“Until Republicans gain control of the Michigan Legislature again, [the Legislature is] not really going to be the ones to initiate a lawsuit, so the courts aren’t going to hear it,” Muller said.
Experts agree it’s highly unlikely that the Supreme Court will take up the case. Several cases in recent years have addressed concerns over both the question of standing — whether the plaintiffs have the legal right to sue — and the Constitution’s elections clause, which says state legislatures and Congress determine how elections are run. Those cases were shot down.
Notably, in Moore v. Harper — a case decided less than two years ago — the U.S. Supreme Court rejected a claim by North Carolina legislators who argued the state Supreme Court’s invalidation of gerrymandered congressional maps violated the elections clause. In a 6-3 decision, the court made clear the answer was no.
“I’m not particularly surprised to see legislators filing briefs that are more press releases than they are legal arguments,” Levitt said of the Michigan case. “This one, I don’t characterize as particularly serious.”
The request comes at a time when the Supreme Court is increasingly limiting who has standing in such cases, he said. To take up the legislators’ request would be reversing years of precedent.
“I don’t see how this succeeds,” he said.
Whitmer’s office did not respond to requests for comment. Benson, who is running for governor, said in a statement Monday that she would “always defend Michigan voters’ rights to amend our constitution through ballot initiatives.”
“The idea that the time, place and manner of federal elections law-making is beyond the right of voters to self-determine is anti-democratic, and already multiple courts have reaffirmed this under law,” Benson said.
The Republican lawmakers involved in the case are standing firm, though. Runestad, of White Lake, told Michigan Public Radio that suing as individual legislators was the only way to get a clear answer.
“The only hope we have of a good clear look at the legality of this is the U.S. Supreme Court,” he said.
The U.S. Supreme Court gets thousands of requests each year and hears roughly 150 of those cases. The most likely outcome in this case, experts say, is that it will be rejected without further note.
Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at hharding@votebeat.org.
