Federal court declares recall statute unconstitutional

By J. PATRICK PEPPER
Times-Herald Newspapers

HEIGHTS — The U.S. District Court for the Western District of Michigan has struck down a Michigan law requiring recall petition circulators to be residents and registered voters of the recall district.

The ruling affirms an earlier injunction issued by the court in the 2008 recall petition drive involving House Speaker Andy Dillon (D-Redford Township), who represents the northern section of Dearborn Heights.

The decision lends legitimacy to the recall drive, which was led by Dearborn Heights resident Rose Bogaert. Without the signatures collected by out-of-district circulators, Bogaert and company didn’t have enough signatures to put the issue on the ballot. The injunction did allow the question to go before voters, but Dillon was not recalled out of office.

Judge Robert Holmes Bell wrote that consistent with federal court rulings, the state law requiring recall circulators to be residents of the recall district was an unconstitutional infringement on free speech.

“This court’s previous determination that (the law) posed a severe burden on recall petition circulators was based on a consistent line of federal cases that have concluded that residency or registration restrictions on petition circulators pose a severe burden on core political speech and are subject to strict scrutiny,” Bell wrote.

Bogaert had sued Secretary of State Terri Lynn Land seeking a declaratory ruling that the statute was unconstitutional and an injunction that would force Land to count otherwise valid signatures gathered by circulators who were either not registered to vote in the district or who were not residents.

Land had argued that restricting speech with regard to recall petition circulation was different than restricting speech with respect to ballot proposal circulation, but the court said Land’s argument amounted to a distinction without a difference.

“(Land’s) attempt to distinguish recall petition circulation from other forms of petition circulation is not persuasive,” Bell wrote. “Contrary to defendant’s suggestion, the proposition that the registration and residency requirements pose only a moderate burden on recall petition circulators is not simply a matter of common sense. In fact, the existing case law and common sense tend to refute defendant’s argument for distinguishing recall petitions from initiative or candidate petitions.” One of Bogaert’s attorneys on the lawsuit, Matt Davis, of the Witte Law Office, said she now would seek to recover attorney fees from the state.

“None of the facts in this case was disputed, so we suggested — and the state agreed — to submit the case to the court on competing motions for summary judgment,” Davis said. “I applaud the state for seeking a fast, economical, and just resolution to this case.”

While an appeal is possible, Davis said the improbability of it being granted makes it unlikely one will be filed. The more likely importance of the ruling, Davis said, now comes in whether Land will enforce, if the opportunity arises, various residency and registration requirements for petition circulators who seek signatures on candidate nominating and ballot proposal petitions.

“This ruling very much throws into doubt the constitutional viability of certain election-related statutes,” Davis said. “However, should the state try to frustrate the civil rights of its citizens, we’ll be ready to go back to court.”