Judge puts Michigan 'gag order' election law on hold

A federal judge agreed Friday to put at least a temporary halt to an election law bill passed in December that would restrict how local and school officials communicate with their residents about ballot proposals and millage issues.

U.S. District Judge John Corbett O'Meara ruled that the bill, the last one passed at the end of the year without any public hearings or debate, is unconstitutionally vague.

"Public officials deserve clarity on this issue so that they may serve the public in the normal course without fear of of arbitrary sanction or prosecution," O'Meara wrote in his ruling. “One could arguably find a communication that references a ballot question to be any communication that merely 'mentions’ a ballot question. This result appears absurd; it is difficult to imagine that regulators would attempt to sanction or prosecute a public official for merely mentioning a ballot question in a city newsletter."

The law, among other things, prohibited local officials from using public resources on things like mass mailings, robocalls or advertisements to inform constituents about ballot proposals in the 60 days before an election. Gov. Rick Snyder signed the bill last month, but urged the Legislature to fix the bill to clarify how local officials could communicate.

Another bill passed the House Elections Committee earlier this week that took out the 60-day restriction and would allow local and school district officials to communicate election information as long as it was "factual and strictly neutral."

That should fix O'Meara's concerns, said state Rep. Lisa Lyons, R-Alto, who sponsored the amendment that drastically changed the original bill as well as the fix.

"The court agrees that clarifying language will further improve the existing law, therefore I urge my legislative colleagues and interested stakeholders to support my bill," she said in a news release.

But there is a real possibility that the legislative fix wouldn't receive final passage before the March 8 election, where many school districts are trying to get bond proposals or millage renewals passed.

Local and school officials were in an uproar over the bill and a group of 18 officials filed a lawsuit against the State of Michigan and Secretary of State Ruth Johnson, seeking an injunction against the law. O'Meara's ruling prohibits the state from enforcing the law.

Scott Eldridge, a Miller Canfield attorney who represented the local officials, said the best action the Legislature could take would be to repeal the section of the bill that deals with communicating with voters.

"That's one good way to end the lawsuit," he said. "This is a great ruling for our clients, all public officials and citizens who actually want to participate in the political process"

And it couldn't have come at a better time, said Keith Wunderlich, superintendent of the Waterford School District,  which has a $100-million bond proposal for capital improvements on the March 8 ballot.

“We wanted to be transparent about what we were doing with our taxpayers here in the township. We were unable to do that,” Wunderlich said.

That meant having to nix distributing a district newsletter that had an article about the bond proposal. Now, he’ll be able to send that out and may do a robocall the day before the election reminding voters about the election.

The plaintiffs' argument was buttressed when Moody's Investor's Service said in a report that the law is "credit negative" for school districts and other local governments because it impedes their ability to provide information to voters, which could lead to dampened support at the polls.

O'Meara said the Legislature should deal with the issue "with due deliberation and debate. Given the fast-approaching March 8, 2016 elections, however, time is of the essence and the court must act."

He also said that a previous law, which prohibits local officials from using taxpayer dollars to advocate for a ballot proposal remains in effect. Under that law, the secretary of state has investigated — and mostly dismissed — a couple dozen complaints that governmental bodies were advocating for ballot proposals.

The bill passed last year was just a small part of a larger package of election laws, which also allowed candidates and political action committees to shift campaign donations from one cycle to another to pay off debt, essentially doubling Michigan’s campaign finance limits. The legislation also made it easier for corporations to deduct money for their own political action committees from their employees’ paychecks while forbidding them from making similar deductions on behalf of labor unions, even if their unionized employees consented. Neither of those provisions were addressed in the bill passed this week.

Contact Kathleen Gray: 517-372-8661, kgray99@freepress.com or on Twitter @michpoligal