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:
In this case, VNP's amendment does not propose changes creating the equivalent of a new constitution:
Therefore, we affirm the judgment of the Court of Appeals that VNP's proposal is a permissible voter-initiated amendment.
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.
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,
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 the November 2018 general
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).
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,
A lower court's decision on whether to grant a writ of mandamus is reviewed for an abuse of discretion.
Our Constitution is clear that "[a]ll political power is inherent in the people."
In answering this question, we do not consider whether the proposed amendment at issue represents good or bad public policy.
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.'"
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.
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."
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?
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,
In reaching this conclusion, the court reviewed: (1) the text of the constitutional provisions at issue;
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.
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.
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.
The Court of Appeals again confronted this issue in Protect Our Jobs v. Bd. of State Canvassers.
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.
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 discretion in this area.
The textual analysis begins with examining the meaning of "amendment" as used
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.
But even the legislative veto — the clearest and most significant substantive check on
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.
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.
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:
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 constitution or amendments" adopted by the convention and proposed to the electors.
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...."
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.
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.
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.
Under our first three Constitutions, the Legislature was granted authority to redistrict.
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.
A key innovation of the 1963 Constitution was to create a bipartisan "commission on legislative apportionment" to draw the relevant district lines.
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.
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.
The apportionment issue was back before the Court in 1972 after the commission once again deadlocked and invoked our supervision.
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.
Tellingly, we noted in the same discussion that "[t]he initiative process is also difficult and time-consuming."
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.
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.
Rather than rewriting the constitutional section governing the commission, the
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."
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
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 factors
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.
Since plaintiffs and the Chief Justice's dissent concede that "the people can alter the power of redistricting by amending the Constitution,"
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
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 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.
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.
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.
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.
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,
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.
The history of our constitutional amendments, too, supports treating VNP's proposal as a proper voter-initiated amendment.
Other states have created independent redistricting commissions through voter-initiated amendments, including Arizona and California.
Our conclusion today is also reinforced by the reasoning in Bess v. Ulmer, which addressed a similar argument concerning a similar ballot proposal.
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.
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.
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 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
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.
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
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 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
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 N.W.2d 534 (2012). Indeed, a century ago, in Scott v. Secretary of State, 202 Mich. 629, 643, 168 N.W. 709 (1918), this Court stated:
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:
Const 1963, art 12, § 3 addresses general revisions of the Constitution through the convention process and provides:
This Court has long recognized that there is a rational distinction between an "amendment" and a "revision." Kelly v. Laing, 259 Mich. 212, 242 N.W. 891 (1932); Sch. Dist. of City of Pontiac v. City of Pontiac, 262 Mich. 338, 345, 247 N.W. 474 (1933). In Kelly, this Court addressed this distinction in the context of proposed changes to a municipality's home-rule charter. As we then explained:
Furthermore:
Finally, we held in Kelly that "[b]oth from the number of changes in the charter and the result upon the form of government, the proposal to abolish the office of city manager requires revision of the charter and must be had by the method the statute provides therefor." Id. at 223-224, 242 N.W. 891 (emphasis added).
Subsequently, in Pontiac Sch. Dist, 262 Mich. at 345, 247 N.W. 474, we held that a proposed amendment regarding property taxes constituted an amendment, rather than 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." (Emphasis added.)
Thereafter, in Citizens Protecting Michigan's Constitution v. Secretary of State,
Most recently, in Protect Our Jobs v. Bd. of State Canvassers, unpublished per
What I believe fairly can be derived from these decisions is that for at least the past 85 years in Michigan, governing law concerning direct constitutional change has been characterized by the following: (a) alternative constitutional procedures exist for instituting such change and (b) determining which of these procedures is to be utilized in a particular instance requires an assessment of the "qualitative nature" of the proposed change — that is, the extent to which the proposal "[impacts] our form of government," entails "fundamental" change, or "would interfere with, or modify, the operation of government." While these standards have been phrased differently over time in judicial decisions, they are nonetheless consistent in supplying this common guidance.
While reasonable persons therefore may articulate these standards in slightly different ways, as indeed might the justices on this dissent, these standards are nonetheless consistent and compatible with each other, as well as with what is required by our Constitution, in distinguishing between the realms of the initiative and the convention. And while election disputes tend disproportionately to arise in the same circumstances as this case, this counsels in favor of greater rather than lesser deference to reasonably settled standards, while the majority purports to alter these standards. I say "purports" because, as discussed in further detail later, I do not believe that the majority's application of its standard in this case is actually all that different from these longstanding standards, only that the majority articulates its standard in a novel manner.
The Court of Appeals in the instant case purported to apply the standards set forth in Citizens and Protect Our Jobs. Citizens Protecting Michigan's Constitution v. Secretary of State, 324 Mich.App. 561, ___ N.W.2d ___, 2018 WL 2746592 (2018) (Docket No. 343517) (CPMC). The first question then concerns whether these decisions articulated the proper standard for determining whether a proposal constitutes an "amendment" or a "revision," and I believe that they do, although I would clarify several points. Most importantly, I believe that the ultimate judicial assessment depends most upon the qualitative nature of the proposed changes, i.e., whether these would "fundamentally" alter
Similarly, I would clarify that while the sheer number of subjects to which a proposal pertains is also a relevant consideration, it is for the same reason as just observed pertaining to the sheer number of textual changes, not necessarily a dispositive consideration. For example, if there was a proposal to change our Legislature from bicameral to unicameral, although that would relate to a single subject, it would nonetheless constitute a fundamental change to the nature and operation of our government and therefore would constitute a "revision" rather than an "amendment."
Article 12 of Michigan's Constitution sets forth two very different ways by which our Constitution can be directly modified.
The latter obviously sets forth a lengthier and more deliberative process. It is a process by which issues can be thoroughly discussed and debated in a structured and sustained manner, and in which proposed language can be clarified and refined. It is also a process in which give-and-take among persons of disparate viewpoints can be pursued, proposals and counterproposals fleshed out, compromises undertaken, and risks to our historical form of government assessed and minimized. That is, it is a process considerably different from the amendment process in which voters, after a reasonably brief period of consideration (roughly 90 days in the present case), and after a very different type of public debate, must accept or reject the proposed amendment in whole. It makes sense that our Constitution would provide, and our Court would recognize, as both have for the past 85 years, that there are distinctions between "amendments" and "revisions" and that each process serves a distinctive need within our governmental and constitutional systems. The broader and the more fundamental the proposed changes, the more likely these would be of a character requiring the deliberativeness of the convention process; the more discrete and limited the proposed changes, the more likely these would be of a character requiring the expedition of the initiative process.
Furthermore, I do not believe that the majority's standard is any less "vague" than the standard set forth by our precedents over the course of 85 years. Indeed, I do not believe that the majority's standard, in particular its application of that standard, is very much different from the standard set forth by our precedents. This is especially true when one looks to the meaning that the majority ascribes to "changes that are tantamount to the creation of a new constitution."
The majority, to its credit, does not hold that any changes short of a total rewrite of the Constitution can be considered an "amendment." Rather, the majority recognizes that an amendment is "limited to proposing less sweeping changes," and the majority focuses, just as I do, on the "qualitative" significance of the proposed changes to determine whether the changes would significantly alter our government, as the majority recognizes that "[a] constitution... is more than words on a page," "[i]ts 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," and "[t]hese are the basic threads of a constitution, and when they are removed, replaced, or radically rewoven, the whole tapestry of the constitution may change." Well said!
To emphasize again, it is not that the people in Michigan, if they choose to do so, cannot radically restructure their government by the direct processes of constitutional change (subject, of course, to federal constitutional requirements, such as the obligation of states to preserve a "Republican [or representative] Form of Government," US Const, art IV, § 4), but merely that the most consequential of proposed changes require greater forethought and deliberation. This is a precondition for direct constitutional change prudently recognized 100 years ago — a century before today's "emergency" decision — when this Court observed that the process of direct change must be carried out "in a certain way and according to certain conditions... found in the Constitution." Scott, 202 Mich. at 643, 168 N.W. 709.
In order to determine whether the VNP proposal would fundamentally alter the nature or operation of our government and Constitution, we must obviously understand the manner in which these presently operate. We begin with what the Constitution, ratified in 1963, originally stated, although we have not operated under that system for the past 36 years. The Constitution as ratified in 1963 called for state legislative districts to be apportioned under a weighted formula based on land area and population. Const 1963, art 4, §§ 2 and 3. It also provided that senatorial districts should be "compact, convenient, and contiguous by land, [and] as rectangular in shape as possible...." Const 1963, art 4, § 2(2). In addition, house districts were to "consist of compact and convenient territory contiguous by land." Const 1963, art 4, § 3. It also established a commission on legislative apportionment "consisting of eight electors, four of whom shall be selected by the state organizations of each of the two political parties whose candidates for governor received the highest vote at the last general election at which a governor was elected preceding each apportionment." Const 1963, art 4, § 6. And it provided that the commission should "receive compensation provided by law" and that the Legislature should "appropriate funds to enable the commission to carry out its activities." Id. With regard to this Court's involvement in redistricting, that Constitution also provided:
However, in Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed. 2d 506 (1964), the United States Supreme Court ruled that weighted land area/population formulas violated the Equal Protection Clause and that states must "make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable."
Subsequently, the Legislature, in 1996, enacted guidelines for the redistricting of the Senate and House of Representatives, see MCL 4.261 et seq., and, in 1999, it enacted the Congressional Redistricting Act, MCL 3.61 et seq. Thus, after the past two federal decennial censuses, redistricting has occurred without a commission, as the Legislature has decided the districts. The commission originally formulated in the 1963 Michigan Constitution has not been active since 1972, and it has in no way been a part of that Constitution since 1982.
The VNP proposal would strike all that is currently in the Constitution regarding redistricting and in Article 4, § 6 would create an "independent citizens redistricting commission."
In addition, "for five years after the date of appointment, a commissioner [would be] ineligible to hold a partisan elective office at the state, county, city, village, or township level in Michigan." VNP proposal, art 4, § 6(1)(E).
The Secretary of State would have to make applications available to the general public and mail these to 10,000 registered voters "selected at random." VNP proposal, art 4, § 6(2)(A)(I). The Secretary of State would then have to "randomly" select 60 applicants for each pool of affiliating applicants and 80 applicants from the pool of nonaffiliating applicants and submit these names to the majority and minority leaders of the Senate and the Speaker of the House of Representatives and the minority leader of the House of Representatives.
Article 4, § 6(5) would provide that "the Legislature shall appropriate funds sufficient to compensate the commissioners and to enable the commission to carry out its functions, operations and activities" and that "the state of Michigan shall indemnify commissioners for costs incurred if the Legislature does not appropriate sufficient funds to cover such costs." Article 4, § 6(6) would provide that "the commission shall have legal standing to prosecute an action
Article 4, § 6(13) would provide:
"A final decision of the commission to adopt a redistricting plan [would] require[] a majority vote of the commission, including at least two commissioners who affiliate with each major party, and at least two commissioners who do not affiliate with either major party." VNP proposal, art 4, § 6(14)(C).
Article 4, § 6(19) would provide:
Article 4, § 6(22) would provide that "the powers granted to the commission are legislative functions not subject to the control or approval of the Legislature, and are exclusively reserved to the commission."
To begin with, the Court of Appeals (and now the majority) err in assessing the nature of the change that would be effected by the VNP proposal by comparing the commission to be established by VNP with the commission created by the 1963 Constitution but thereafter struck down. In short, by the time of the Court of Appeals' asserted comparison, the commission created by the 1963 Constitution had not been a part of that Constitution for 36 years and had not actually been used to establish a districting plan for 46 years.
As this Court has recognized, "[e]lection redistricting is principally a legislative function," LeRoux v. Secretary of State, 465 Mich. 594, 619, 640 N.W.2d 849 (2002), redistricting "goes to the heart of the political process in a constitutional democracy," In re Apportionment of State Legislature — 1982, 413 Mich. at 136, 321 N.W.2d 565, and "[a]ny change in the means by which the members of the Legislature are chosen is a fundamental matter," id. at 136-137, 321 N.W.2d 565 (emphasis added). Indeed, one of RMGN's proposed changes would have removed from the Legislature its authority over redistricting, resituated this authority in a redistricting commission within the executive branch, and removed the procedure for judicial review of redistricting. The Court of Appeals concluded that such a proposal "affects the `foundation power' of government by `wresting from' the legislative branch and the judicial branch any authority over redistricting and consolidating that power in the executive branch, albeit in a new independent agency with plenary authority over redistricting." Citizens, 280 Mich. App. at 306, 761 N.W.2d 210.
Furthermore, although this commission would nominally be placed within Article 4, describing the legislative branch of government, and invested with the legislative power of redistricting, it would nonetheless be "independent" from the Legislature. See VNP proposal, art 4, § 6(22) ("[T]he powers granted to the commission are legislative functions not subject to the control or approval of the Legislature, and are exclusively reserved to the commission."). For that reason, it is incumbent that VNP redefines, as it does, the threshold description of the "legislative power" in Article 4, § 1. That language now reads, "The legislative power of the State of Michigan is vested in a senate and a house of representatives." It would be modified to read, "Except to the extent limited or abrogated by [the VNP proposal], the legislative power of the State of Michigan is vested in a senate and a house of representatives." (Emphasis added.) This is a change occasioned by the fact that one of the Constitution's three separated powers, the "legislative power," would be exercised by a body that is neither the "senate" nor the "house
Indeed, the proposal goes on to introduce the same prefatory language in Articles 5 and 6 of the Constitution, addressing respectively the executive and judicial powers of the Constitution,
In sum, Article 4, § 1, Article 5, § 1, and Article 6, § 1, the foundational articles of our system of separated powers, have each
What these three "[e]xcept to the extent limited or abrogated by" provisions most of all suggest is that the commission itself is an entirely novel institution that would fundamentally breach our Constitution's separation of powers, see Const 1963, art 3, § 2 ("The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution."), but for the addition of these three provisions. Why would it be necessary to expressly redefine the wielder of each of our Constitution's three separated powers unless the VNP proposal was thought to implicate each of these?
For these reasons, I conclude that the VNP proposal, if adopted, would fundamentally change the operation of our government and, as a result, it is not an "amendment" that can be properly placed on the ballot by the initiative process under Const 1963, art 12, § 2, but rather a general "revision" that requires resort to the convention process under Const 1963, art 12, § 3.
Stephen J. Markman.
Brian K. Zahra.
Kurtis T. Wilder.
Wilder, J. (dissenting).
I concur in full with Chief Justice MARKMAN's dissent. I write separately, however, to address an additional, alternative basis for rejecting the proposal submitted by Voters Not Politicians (VNP). The VNP proposal requires 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. Because the proposal abrogates the Oath Clause of Const 1963, art 11, § 1, which forbids requiring additional oaths or affirmations as a qualification for public office, VNP was required to republish that provision on its petitions. It is uncontested that VNP failed to do so. Because strict compliance with the republication requirement was required, an order of mandamus should issue directing the rejection of the VNP proposal.
The VNP proposal, art 4, § 6, provides, in pertinent part:
Under the VNP proposal, the Secretary of State is required to eliminate the applications that are incomplete. Therefore, if an applicant fails to attest under oath regarding his or her political party affiliation, the applicant is ineligible to be selected for a position on the commission. See VNP proposal, art 4, § 6(2)(D)(I).
Both Const 1963, art 12, § 2
In Stand Up For Democracy v. Secretary of State, 492 Mich. 588, 822 N.W.2d 159 (2012), this Court held that a petition must fully observe mandatory statutory provisions concerning a petition's form requirements. In Protect Our Jobs, 492 Mich. at 778, 822 N.W.2d 534, this Court held that the strict-compliance principle articulated in Stand Up For Democracy applied with "equal force" to the requirement that a petition republish any existing constitutional provision that the proposed amendment, if adopted, would alter or abrogate.
Protect Our Jobs, which involved the proper interpretation of "alter" and "abrogate" in the context of a ballot proposal to amend the Constitution, id. at 772-773, 761 N.W.2d 210, reaffirmed the principles articulated in Ferency v. Secretary of State, 409 Mich. 569, 297 N.W.2d 544 (1980), and Sch. Dist. of City of Pontiac v. City of
With respect to abrogation — the only type of change asserted to be at issue by plaintiffs in the instant case — Protect Our Jobs held that republication is required if the proposed change "would essentially eviscerate an existing provision." Id. at 782, 822 N.W.2d 534. The standard for abrogation was articulated as follows:
Protect Our Jobs involved four distinct ballot proposals to amend the Michigan Constitution, none of which altered an existing provision of the Constitution. However, the Court held that the ballot proposal at issue in Citizens for More Michigan Jobs v. Secretary of State abrogated an existing constitutional provision. Id. at 773, 822 N.W.2d 534. That proposed amendment would have allowed for the construction of eight new casinos in Michigan and would have compelled the issuance of a liquor license to each of the eight casinos. Id. The Court held that the amendment's requirement that the casinos "shall be granted" liquor licenses "render[ed] wholly inoperative the `complete control of the alcoholic beverage traffic within this state' afforded to the Liquor Control Commission under ... Const 1963, art 4, § 40." Id. Because Article 4, § 40 was required to be republished, the fact that it was not was "fatal to the proposed amendment" and mandamus was denied. Id. at 791, 822 N.W.2d 534.
Const 1963, art 11, § 1 provides:
Throughout Michigan history, this constitutional provision has largely remained the same. Const 1835, art 12, § 1; Const 1850, art 18, § 1; and Const 1908, art 16, § 2 all provided that "[n]o other oath, declaration or test shall be required as a qualification for any office or public trust." Const 1963, art 11, § 1 narrowed the provision from "test" to "any religious test."
In Dapper v. Smith, 138 Mich. 104, 101 N.W. 60 (1904), the issue before the Court was the constitutionality of a Kent County law that denied a spot on the ballot to any candidate unless the candidate declared an oath of the fact that he was a candidate for the office. The oath prohibited voters from choosing a candidate who declined to seek office on his own initiative but was "willing to consent to serve his State or his community in answer to the call of duty when chosen by his fellow citizens to do so...." Id. at 105, 101 N.W. 60. The Court noted that the constitutional provision was "not one designed for the benefit of the aspirant for public station alone; it is in the interest of the electorate as well." Id. The Court found the law was unconstitutional, in violation of Article 18, § 1, which provided that "no other oath, declaration, or test shall be required as a qualification for any office or public trust." Id. at 105-106, 101 N.W. 60. The Court could not "escape the conclusion that the provision in question does most seriously impede the electors in the choice of candidates for office, and that it is in conflict with the provisions of section 1 of article 18 of the Constitution." Id. (emphasis added).
In Harrington v. Secretary of State, 211 Mich. 395, 395-396, 179 N.W. 283 (1920), the Court relied on Dapper to strike down a statutory amendment that required primary candidates to sign an affidavit stating that the candidate was a member of a certain political party, naming the political party, and indicating that the candidate would "support the principles of that political party of which he is a member, if nominated and elected[.]" (Quotation marks and citation omitted.) The Court noted the fallacy of requiring additional oaths before a candidate even becomes a candidate: "Where is the logic of saying that when elected the officer cannot be subjected to any test oath other than the constitutional oath of office, but before he can be a candidate he must subject himself to a different test oath or he cannot be a candidate, and is therefore in practical effect barred from holding the office?" Id. at 397, 179 N.W. 283. The Secretary of State urged that Dapper be overruled, but the Court declined, concluding that "the amendment contravenes the constitutional provision above quoted." Id. at 399, 179 N.W. 283.
In the instant case, the Court of Appeals panel agreed with plaintiffs that the VNP proposal is "not an oath of office, but is merely an affirmation that the applicant satisfies the commissioner qualifications, which are enumerated in a separate section, § 6(1)," reasoning that Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich. 465, 510, 242 N.W.2d 3 (1976), supported this conclusion. Citizens Protecting Michigan's Constitution v. Secretary of State, 324 Mich.App. 561, ___, ___ N.W.2d ___, 2018 WL 2746592 (2018) (Docket No. 343517) (CPMC), slip op at 27. In that case, the Court held that a financial disclosure oath did not violate Article 11, § 1; rather, it was more akin to nominating petition affidavits under MCL 168.558 and former MCL 168.557. Advisory Opinion, 396 Mich. at 510-511, 242 N.W.2d 3. However, the plain language of the VNP proposal requires applicants to attest under oath that they meet the qualifications "set forth in this section; and" indicate their party affiliation, if any. VNP proposal, art 4, § 6(2)(A)(III) (emphasis added). The political party affiliation question is undoubtedly a requirement of the attestation under oath in addition to the qualifications of § 6(1). The Court of Appeals, without explanation, simply declared that a financial disclosure oath is analogous to a political affiliation attestation, and in doing so, it ignored language from Advisory Opinion that distinguished Dapper and Harrington and is particularly germane to this case:
In this case, the Court of Appeals' analysis made no reference to Dapper whatsoever. Moreover, the panel distinguished Harrington on the basis that in its view, "the oath required by the VNP Proposal relates only to the information on the application and does not bind a candidate once he or she becomes a commissioner." CPMC, ___ Mich. App. at ___, slip op at 27, ___ N.W.2d ___ (emphasis added). However, whether the oath in the instant case, unlike Harrington, does not purport to bind a candidate into the future has no bearing on whether an oath or affirmation exists as a qualification for office in the first instance. Nothing in the language of Article 11, § 1 limits the provision to "binding" oaths, affirmations, or religious tests.
The plain language of the VNP proposal requires applicants to make a choice when filling out the application — they must attest under oath that they affiliate with the Democratic Party, Republican Party, or indicate that they affiliate with neither party. If the applicant fails to meet this qualification, the application is discarded and the applicant is rendered categorically ineligible for a commissioner position. As this Court stated in Advisory Opinion, Dapper and Harrington stand for the proposition that Article 11, § 1 precludes any requirement that requires a potential candidate to form a belief or choose between differing thoughts as a qualification for office. Under Dapper and Harrington, commissioner applicants may not be forced to attest, under oath, to which political party they most closely affiliate with, if any.
VNP cites two cases for the proposition that "appointment to public bodies" may be based upon "consideration of political affiliation in cases where the requirement in question is designed to ensure representation of diverse political interests, and does not exclude persons of any particular political persuasion from participation." In other words, defendants argue that the plain language of Article 11, § 1 may be set aside in the interests of political diversity. However, these cases are easily distinguishable.
VNP first cites Attorney General ex rel Connolly v. Reading, 268 Mich. 224, 256 N.W. 432 (1934). In that case, electors of the city of Detroit sought a writ of mandamus to compel the city election commission to comply with a law requiring that not more than 50% of the election inspectors be of the same political party. Id. at 226, 256 N.W. 432. The election commissioners refused to comply with the law, claiming that it was an unconstitutional test.
Connolly thus had nothing whatsoever to do with oaths or affirmations — the language of the statute at issue did not require anyone to make an oath or affirmation — and the case does not support VNP's claim that its proposal does not abrogate Article 11, § 1.
The other case cited by defendants is Attorney General ex rel Fuller v. Parsell, 99 Mich. 381, 58 N.W. 335 (1894). In that case, the attorney general filed a quo warranto action against Eugene Parsell, the warden of the state house of correction and reformatory at Ionia. Id. at 382, 58 N.W. 335. Parsell refused to give up his office even after he was removed by the board of control.
The Court rejected his claim as follows:
Of interest, it should be noted that Parsell did not claim a violation of Const 1850, art 18, § 1, the predecessor of Const 1963, art 11, § 1. Indeed, there was not even a claim that the board members were required to swear additional oaths or affirmations as a qualification of their appointment. In short, Parsell had nothing to do with the constitutional provision at issue and is wholly irrelevant to the analysis.
The majority argues on VNP's behalf that the oath here is merely a qualification for office. In the context of the "test" prohibition contained in former versions of Article 11, § 1, our caselaw has long held that having "special qualifications" for an office (e.g., requiring that a candidate live in a municipality for a specified period of time or be a member of the state bar) does not violate this particular constitutional provision. See Attorney General v. Macdonald, 164 Mich. 590, 129 N.W. 1056 (1911). In the context of the "oath" prohibition, this Court has acknowledged that a statutory requirement that a candidate for office of county commissioner of schools file an affidavit or other proof showing his eligibility for such office did not conflict with the "no other oaths" language of the Constitution. Tedrow v. McNary, 270 Mich. 332, 335, 258 N.W. 868 (1935). The affidavit in Tedrow passed constitutional muster because it was "simply prima facie evidence that the candidate [was] educationally qualified to discharge the duties of the office. No statement in any way affecting his rights as a citizen, or his religious or political affiliations, need appear therein." Id. The VNP proposal impermissibly inquires into the political affiliations of the oath-taker, and therefore, in my judgment, Tedrow does not support the conclusion that the VNP oath may be characterized as merely another qualification.
As the majority points out, judicial candidates must confirm by affidavit their qualifications for office. The affidavit of candidacy largely reflects a list of special qualifications: that the judge (1) is an incumbent judge and is domiciled within the relevant jurisdiction, (2) is a candidate for that office at the primary election, (3) is licensed to practice law in the state of Michigan, (4) has been admitted to the practice of law for at least five years, and (5) will not have attained the age of 70 years by election day. See Const 1963, art 6, § 19; MCL 168.544b. Again, these qualifications, like the education qualification in Tedrow, stop short of inquiring into a candidate's political affiliations and therefore are distinguishable from the VNP oath.
Perhaps most persuasive is the fact that VNP has not characterized its oath as a qualification. That is a characterization argued by the majority on behalf of VNP. The VNP proposal considers the oath separately and distinctly from the qualifications for a commissioner's position. The commissioner qualifications are listed in Article 4, § 6(1) of the VNP proposal: "[e]ach commissioner shall" be registered to vote in Michigan, not otherwise disqualified for appointed or elected office by the Michigan Constitution, and not currently, or in the past 6 years have been (or related to anyone who has been) (1) a declared candidate, elected official, or part of a governing body for federal, state, or local office; (2) a paid consultant or employee of any elected official, political candidate, or political action committee; (3) a legislative employee; (4) a registered lobbyist; or (5) an unclassified state employee. The VNP
The VNP oath may be more accurately characterized as a political test, but at any rate it is certainly an oath — which in my view directly conflicts with the plain letter of the Constitution. Const 1963, art 11, § 1 is crystal clear — "[n]o other oath [or] affirmation... shall be required as a qualification for any office or public trust." This appears to be absolute language. Because Const 1963, art 11, § 1 places an absolute ban on additional oaths or affirmations required as a qualification for office, it is analogous to an existing provision that "creates a mandatory requirement or uses language providing an exclusive power or authority because any change to such a provision would tend to negate the specifically conferred constitutional requirement." Protect Our Jobs, 492 Mich. at 783, 822 N.W.2d 534. Equally as important, Article 11, § 1 is unlike an existing provision "that uses nonexclusive or nonabsolute language" deemed "less likely to be rendered inoperative" in Protect Our Jobs. Protect Our Jobs, 492 Mich. at 783, 822 N.W.2d 534. Because the VNP proposal, which requires applicants to attest under oath regarding their political affiliation, appears to render the absolute language of Article 11, § 1 "wholly inoperative," Protect Our Jobs, 492 Mich. at 773, 822 N.W.2d 534, it therefore constitutes an abrogation that is subject to the republication requirements of Const 1963, art 12, § 2 and MCL 168.482(3).
The VNP proposal requires that applicants to the independent citizens redistricting commission attest under oath that they either affiliate or do not affiliate with one of the two major political parties. Because the proposal would abrogate the Oath Clause of Const 1963, art 11, § 1, which forbids requiring additional oaths or affirmations as a qualification for public office, VNP was required to republish that provision on its petitions, as required by Const 1963, art 12, § 2 and MCL 168.482(3). It is uncontested that VNP failed to do so. Because strict compliance with the republication requirement was required, an order of mandamus should issue directing the rejection of the VNP proposal.
Kurtis T. Wilder.
Brian K. Zahra.
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 284. 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 ____ ("[F]or at least the past 85 years in Michigan, governing law concerning direct constitutional change has been characterized by the following...."); post at 284 ("[O]ur Court would recognize, as [it has] for the past 85 years...."); post at 286 (referring to "the standard set forth by our precedents over 85 years ago"); post at 287 (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 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 282 n. 2, the "most compelling precedents of this state," post at 283 n. 2, and the "best and the most enduring relevant precedents of this state," post at 288 n. 9, does not make them so, even if with the use of italics.
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.
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 N.W. 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, 258 N.W. 868. See also Attorney General v. Macdonald, 164 Mich. 590, 593, 129 N.W. 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, 822 N.W.2d 534; see also Massey v. Secretary of State, 457 Mich. 410, 418, 579 N.W.2d 862 (1998); Ferency, 409 Mich. at 597, 297 N.W.2d 544.
The majority contends that this opinion "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'" because "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." While I cannot speak as to the intentions of any other justice in 2008, I can offer that I joined a short concurring statement in that case that held that the proposal before the Court was not an amendment under Const 1963, art 12, § 2, for what I viewed as the simplest and most straightforward of reasons — it could not be reasonably summarized in 100 words or less; it was far too expansive in its reach and impact. Nothing in that statement suggested in any way that I rejected the standard set forth in the instant case or any other standard, merely that in the context of what was then also an election emergency, there was simply no time — and even more importantly, no need — to assess or to apply the more nuanced and difficult standard articulated today. In the present case, on the other hand, the "100 words or less" standard is, in my judgment, the standard that is more difficult to apply and one that was not addressed by the lower court. Furthermore, given that the Citizens standard was derived from both Kelly and Pontiac Sch. Dist., each of which constitutes binding precedent, and given that Citizens itself was a published opinion and thus constitutes a further binding precedent, the law was hardly left in any "state of limbo," even within the context of the difficult and exigent circumstances that the majority should well understand attend our election emergency cases. The majority also opines that the Citizens standard "comes from a line of California caselaw...." In part, this is so, and in part, it is not, because the majority in Citizens largely relied on Kelly and Pontiac Sch. Dist.; while it did also rely on California law, it did not do so in any different manner than does the majority in the present case.
Furthermore, none of the above discussion has anything to do with "legislative acquiescence." While it is kind of the majority to cite one of my own writings in its explanation of this doctrine, and while its analysis of the doctrine seems to me correct, it is nonetheless irrelevant in the present context. If the purpose of the above discussion had been to assert that the Legislature, by failing to replace the commission struck down in 1982, had thereby shown its opposition to the commission, that would have been an exercise in the dubious assertion of "legislative acquiescence" — although even this gives short shrift to the fact that the doctrine is exclusively one of statutory interpretation and that there is no statute here whose meaning is being considered by either this dissent or the majority. Instead, the only purpose of the above discussion is to respond to the majority that the Constitution as ratified in 1963 continues in all respects to reflect the best present intentions of the people, despite that Constitution not having been in existence in relevant respects since 1982, and despite ample opportunities since then for the people to have revived or restored the commission by a variety of constitutional means.
Finally, it warrants clarification that the "direct input" in 1963 to which the majority hearkens is exactly the kind of input that this dissent would facilitate — a statewide convention — except that this convention, unlike that in 1963, which involved a complete rewrite of the Constitution and in which voters cast no specific vote on a redistricting commission, would focus exclusively upon this matter.
Yet, the VNP proposal would require "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 (hereinafter, `major parties'), 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). Would this provision require an additional oath as a qualification for any office or public trust? If so, Const 1963, art 11, § 1 should also have been republished and it was not. Thus, three significant constitutional provisions should arguably have been republished, and they were not.