Listen below to Erick Kaardal interview with Justin Barclay:
Attorney Erick Kaardal discusses federal lawsuit claiming Michigan election officials usurped the legislature’s constitutional authority. Violated legislators’ civil rights.
by Patrice Johnson | October 2, 2023
Last Wednesday, 11 state legislators filed a major federal lawsuit against Michigan's top election officials. The suit argues that, in using a citizen petition process to amend the state constitution in 2018 and 2022, election officials usurped the state legislature's constitutionally protected authority to regulate federal elections. This usurpation, the lawsuit also argues, violated individual state legislators’ civil rights.
Media companies across the state and nation attended the press conference and reported on the announcement. A radio interview between commentator Justin Barclay and Attorney Erick Kaardal showed the commonsense logic of the lawsuit. The podcast and transcript/summary below shed light on how powerful people in Michigan appear to be deliberately undermining the rule of law.
“They are ruining the confidence in our elections,” Kaardal said. “They have to stop.”
Click here to listen to the podcast.
Justin Barclay: “Erick Kaardal joins us right now. The attorney bringing this suit forward alleges that Michigan, particularly the secretary of state, is breaking the law and violating civil rights when it comes to elections. What does this lawsuit mean and what are you alleging?”
Erick Kaardal: “Let’s start with the premise that ordinary people follow all the laws even little the laws, so it’s really disappointing when the leading election officials in Michigan violate the big laws, and they get away with it.”
Kaardal explains that big laws were violated in 2018 and 2022 when progressives used a citizen petition process to amend the state constitution. “The federal constitution requires the state legislatures be involved.” However, progressive petitioners “used a process that was constitutionally invalid, so those regulations of federal elections in the constitution that were put in 2018 and 2022 are invalid. That process shouldn’t be used anymore because the election clause of the U.S. Constitution says the state legislature is the one that regulates the times, places, and manner of elections.”
“So whoops! They blew it. They violated the big laws. If you and I did something like this on the street—you know, we drive too fast or something—we’d get prosecuted. Here, they just get away with this. So the federal courts are going to have to come in.”
“The state legislators when you elect them, they have the federal power, the federal rights to regulate the times, places, and manner of elections, so these powerful people in Michigan—basically they knew what they were doing. They violated the civil rights of the state legislators, their federal rights, in order to promote voting rights.”
“They have to stop it.”
“They are ruining the confidence in our elections. When they violate these big laws and then we point them out, and they don’t care about following the law, we lose confidence in our elections. These Michigan state elections officials have to stop violating the law. They have to stop violating civil rights to promote voting rights.
“The elections clause is very simple. It says state legislatures regulate the times, places, and manner of elections, and there’s a process in Michigan’s constitution where the state legislature can propose constitutional amendments.” In regulating the times, places, and manner of federal elections, the state has to follow that procedure and include legislator involvement.
Kaardal emphasized that election law does not qualify for amendment by citizen petition because that process doesn’t involve the state legislators. “It’s very simple.”
Barclay: “Since they didn’t go through the correct process, all these issues in 2018 and 2022 should be wiped off. What about Prop 2 of 2022?”
Kaardal: “It’s all legally null and void.”
Kaardal pointed out that if a listener committed fraud, they would suffer the consequence of the law. Also, if a listener wouldn’t expect to go to the Department of Natural Resources to get their driver’s license. They would have to go the Deparment of Motor Vehicles. “Say you go to the DNR to apply for driver’s license. You don’t get one!” He chuckled as he explained that any person who wants to amend election law in Michigan has “to use the right procedure” and go through the legislature.
“This idea that big people can violate big laws and little people have to follow little laws—it’s absurd,” he said. “We need to hold these big people accountable when they violate big laws. This is what this lawsuit is about.”
“We got them. We need help in the federal courts to win. But we need to restore some discipline on Michigan’s public officials because they are serial violators of the law. This is twice, 2018, 2022. I’m not even talking about policy in the amendments. The point is, you can’t violate civil rights to promote voting rights. They should be embarrassed.”
Barclay: “Erick Kaardal joins us now, the attorney in this. There are 11 legislators who have signed onto this suit. What’s interesting to me is you have a secretary of state in this state, Jocelyn Benson, and a judge ruled she broke the law in 2020. She’s been in question a number of times. The question is what’s going to happen? What is the relief you’re seeking? What do you expect to happen as you take this into fed court?”
Kaardal: There are a couple of issues here. It’s a really exciting case for two reasons. One is this realization that individual state legislators, they are the ones that are given the power under the Elections Clause. There are issues regarding that. The second one is this independent state legislative doctrine. Do the state legislators have real power? There is this U.S. Supreme Court case [Moore v Harper] in June of this year that indicated that, yes, state legislatures have real power to regulate federal elections in the states. We’re in really good shape.”
Kaardal said he expected to have a hearing interpreting legal ext.
“There might be some appeals, a trip the supreme court. But it’s very exciting because if we can just get Michigan’s public officials to follow the law, we can start restoring confidence in our elections. But while they are committing serial violations of the law, we can’t restore confidence.”
“This going to come to an end in Michigan. These public officials engaging in serial violations of election laws—it’s going to come to an end because the people are going to demand it. That’s going to cause a huge change in how Michigan is governed and particularly how elections are administered in Michigan.”
Barclay: Wiping all these issues off the books. Does this overturn previous elections?
Kaardal: No. You have to move forward. That’s why you have elections every two or four years. We’re hopeful. Optimistic. “We’re focused on the future. It is important to wipe the 2022 and 2018 constitutional amendments from the Michigan constitution because they are legally null and void.”
Kaardal said the case raises issues of whether the courts save part of the constitutional amendments, called severability? “There is a part of the 2022 constitutional amendment that I like. For example, they wave sovereign immunity, so you can sue public officials for violating election laws.” Because they used an unconstitutional method, can any of it be saved? “I think the answer is NO.”
“This is the way we learn. We learn that The People need to fight against the big people, the big public officials, when they violate big laws. If we don’t start engaging in this process, they just keep going.”
“They are like monarchs. They don’t care about the law. They just violate the law willingly.”
Plus, Kaardal said, “in 2018 and 2022 there is a lot of money from outside of Michigan funded these proposals. A lot was driven by progressive nonprofits. That’s morally dubious. The idea that these people from out of state are spending money to illegally change your law. That’s essentially wrong. That’s not right.”
“We have to correct that too. No, you don’t come into our state and use our procedures illegally to amend our laws. You have to follow the law here. There are all kinds of problems with this. We were trying to correct this moving forward. But sure, people should be held accountable at the ballot box for engaging in serial violations of the law.”
Barclay: “Why has it taken so long to do this? I do believe this is important. Why the delay?”
Kaardal: “Fair question. That Moore v Harper case was pretty important, decided last June of this year. If you read Chief Justice Robert’s opinion…the key was this sentence saying that under the U.S. Constitution the state legislature has a particular constitutional federal authority. That’s what we’re working off of.”
“Of course, the progressives don’t think the state legislatures should have a role, but the U.S. Constitution requires it. We had to kind of wait for that decision. We were hoping it would provide clarity for this claim, and it did. It took a few months to pull state legislators together and file the claim.”
Barclay: “Turns out the const does matter. If people want to follow more, how can they stay in contact? How stay in contact?”
Kaardal: “Michigan Fair Elections, MIfairelections.org is the one driving this litigation. This is a fantastic opportunity for ordinary people in Michigan to educate themselves and educate others. Particularly if you have liberal friends, show them the constitutional language. Persuade them to join us. We need to have unity. Need to stop rogue election officials.”
Plaintiffs include Senators Jonathan Lindsey and Jim Runestad; Representatives Steve Carra, James DeSana, Joseph Fox, Neil Friske, Matt Maddock, Brad Paquette, Angela Rigas, Joshua Schriver, and Rachelle Smit.
The U.S. Constitution, Article I, Section 4 (the Elections Clause), requires state legislatures to regulate the times, places, and manner of federal elections.
Outstate funding.
Source: Ballotpedia. https://ballotpedia.org/Michigan_Proposal_2,_Voting_Policies_in_Constitution_Amendment_(2022)
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