STATE OF MICHIGAN

IN THE COURT OF APPEALS

RAISE THE WAGE MI,

Court of Appeals Case No. 360373
Plaintiff,

and BRIEF IN SUPPORT OF

VERIFIED COMPLAINT FOR
GRETCHEN WHITMER FOR DECLARATORY RELIEF AND
GOVERNOR, MOTION FOR EXPEDITED
CONSIDERATION
Intervening-Plaintiff,
EXPEDITED CONSIDERATION
-vs- REQUESTED

BOARD OF STATE CANVASSERS, ORAL ARGUMENT

REQUESTED
Defendant.

_____________________________________________________________________________/

Mark Brewer (P35661) Heather S. Meingast (P55439)

GOODMAN ACKER, P.C. Erik A. Grill (P64713)
17000 W. Ten Mile Road Assistant Attorneys General
Southfield, Michigan 48075 PO Box 30736
(248) 290-9997 Lansing, Michigan 48909

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mbrewer@goodmanacker.com (517) 335-7659

Attorneys for Plaintiff Attorneys for Defendant

Christopher M. Trebilcock (P62101)

Vincent C. Sallan (P79888)
CLARK HILL PLC
500 Woodward Avenue, Suite 3500
Detroit, Michigan 48226
(313) 965-8300
ctrebilcock@clarkhill.com
vsallan@clarkhill.com

Attorneys for Intervening-Plaintiff

Gretchen Whitmer for Governor
_____________________________________________________________________________/
 TABLE OF CONTENTS

INDEX OF AUTHORITIES........................................................................................................... ii
STATEMENT OF JURISDICTION................................................................................................ i
STATEMENT OF QUESTION PRESENTED .............................................................................. ii
INTRODUCTION .......................................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 3
A. The Board’s Role in Reviewing and Approving the Form of Candidate Nominating
Petitions. ......................................................................................................................... 3
B. The Bureau of Elections Approved the Whitmer Campaign’s Nominating Petition
Sheets With a Union Label Before Circulation. ............................................................. 6
ARGUMENT .................................................................................................................................. 8
I. The Michigan Election Law Does Not Require Labels or Text Within Labels On
Nominating Petitions to Appear in Eight-Point Type ......................................................... 9
A. Provisions of the Michigan Election Law Governing Nominating Petitions ................. 9
B. The Board’s February 11 Determination Regarding Labels is Contrary to the Michigan
Election Law. ................................................................................................................ 10
C. The Board’s February 11 Determination Regarding Labels is Inconsistent with Past
Practice and Will Create Chaos and Uncertainty. ......................................................... 14
II. The Board Should Be Estopped From Rejecting Any Nominating Petitions that Have
Labels On Them that the Bureau of Elections Approved Prior to Circulation. ................. 16
CONCLUSION AND RELIEF SOUGHT ................................................................................... 18

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i
 INDEX OF AUTHORITIES

Cases

Brightmoore Gardens, LLC v Marijuana Regulatory Agency, ___ NW2d ___, 2021 WL 1822808
(Mich Ct App, 2021) ................................................................................................................. 13
Dept of Envtl Quality v Worth Twp,
491 Mich 227; 814 NW2d 646 (2012)...................................................................................... 12
Hackel v Macomb Cty Com’n,
298 Mich App 311; 826 NW2d 753 (2012) .............................................................................. 11
Howard Twp Bd of Trustees v Waldo,
168 Mich App 565; 425 NW2d 180 (1988) .............................................................................. 17
Iliades v Dieffenbacher N Amer Inc,
501 Mich 326; 915 NW2d 338 (2018)...................................................................................... 10
In re Complaint of Revas Against SBC Mich,
482 Mich 90; 701 NW2d 259 (2008)........................................................................................ 13
Oliphant v State,
381 Mich 630; 167 NW2d 280 (1969)...................................................................................... 16
Purcell v Gonzalez,
549 US 1, 4; 127 S Ct 5; 166 L Ed 2d 1 (2006) ........................................................................ 16
Republican Nat’l Comm v Democratic Nat’l Comm,
140 S Ct 1205; 206 L Ed 2d 452 (2020) (per curiam).............................................................. 16
Wiersma v Michigan Bell Tel Co,
156 Mich App 176; 401 NW2d 265, 269 (1986) ...................................................................... 16

Statutes

MCL 168.133 .................................................................................................................................. 3

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MCL 168.303 .................................................................................................................................. 3
MCL 168.409b ................................................................................................................................ 3
MCL 168.476(3) ............................................................................................................................. 4
MCL 168.93 .................................................................................................................................... 3
MCL 413 ......................................................................................................................................... 3
MCL 433 ......................................................................................................................................... 3
MCL 467b ....................................................................................................................................... 3
MCL 168.479(1) ............................................................................................................................ iv
MCL 168.53 ................................................................................................................................ 3, 4
MCL 168.544a ........................................................................................................................ 10, 18
MCL 168.544b .............................................................................................................................. 10
MCL 168.544c ............................................................................... iv, 1, 8, 9, 10, 12, 13, 14, 15, 18
MCL 168.544d .............................................................................................................. 6, 10, 15, 18
MCL 168.544f................................................................................................................................. 4
MCL 168.552(9) ............................................................................................................................. 4
MCL 24.61 .................................................................................................................................... 14
MCL 750.265a .............................................................................................................................. 14

ii
Rules

MCR 2.605..................................................................................................................................... iii

MCR 2.605(D) .............................................................................................................................. 18
MCR 7.203(C)(5)........................................................................................................................... iii

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 STATEMENT OF JURISDICTION

On February 11, 2022, the Board declined to approve the form of Plaintiff Raise the Wage

MI’s (“RTWM”) initiative petition because the petition included a union label that contained text

printed in less than eight-point font. The Board’s decision reverberates beyond just RTWM’s

petition. The Board announced a new canvassing rule less than two months before the April 19,

2022 nominating petition deadline: when validating and canvassing signatures on nominating

petitions, the Board will reject any signatures appearing on petition pages that include a union

label with text in smaller than eight-point type.

Plaintiff Gretchen Whitmer for Governor (the “Whitmer Campaign”) is currently

circulating a nominating petition – that was approved by the Bureau of Elections in June of 2021

– that contains a union label very similar to the one the Board rejected on February 11, 2022. Under

the Board’s newly announced rule, the Board will invalidate over 30,000 of the Whitmer

Campaign’s signatures. Thus, the Whitmer Campaign has been aggrieved by the Board’s

determination within the meaning of MCL 168.479(1). In addition, this Court has jurisdiction

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under MCR 2.605 and 7.203(C)(5).

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 STATEMENT OF QUESTION PRESENTED

Whether a nominating petition complies with the statutory formatting requirements of the

Michigan Election Law, MCL 168.544c, if the petition includes a logo, symbol, stamp, label,

emblem, or other image or indicia that is not printed in eight-point type or contains text that is not

printed in eight-point type?

Plaintiff RTWM says: Yes

Intervening-Plaintiff the Whitmer Campaign says: Yes

The Board of State Canvassers says: No

The Court should say: Yes

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 INTRODUCTION

Less than two months before the statutorily imposed April 19, 2022 deadline for candidates

to submit nominating petitions, the Board created a new rule that has no basis in the Michigan

Election Law, contradicts decades of Board practices and precedent and the Director of Elections’

and Bureau of Elections’ interpretations of the Michigan Election Law, and threatens to upend the

2022 election cycle. Under the Board’s newly announced rule, if a petition sheet – whether a

nominating petition, ballot initiative petition, or constitutional amendment petition – contains a

small logo, stamp, or image that has text in less than eight-point font, the Board will invalidate all

signatures on that petition sheet even though that logo, stamp, or image does not interfere with the

substance of the petition.

For decades, the Board has routinely accepted signatures on ballot proposal and candidate

petitions that contained labels (for example, recycling symbols, union printing labels, and QR

codes) regardless of whether the label or any text appearing within it was printed in eight-point

type. The Board has never invalidated signatures on petitions because the petition included a label

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with text printed in smaller than eight-point type. Indeed, as recently as December of 2021, the

Board approved as to form initiative petitions that included labels containing text printed in smaller

than eight-point type.

That practice was consistent with the practice adopted by the Bureau of Elections, which

has for years provided consultation to candidates on the form of nominating petitions and has never

taken issue with a petition because it contained a label with text printed in smaller than eight-point

type. Indeed, after the Board’s February 11, 2022 actions, the Bureau actually reiterated its position

that nominating petitions are in substantial compliance with MCL 168.544c, regardless of the size

of text within union labels.

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 The Whitmer Campaign took advantage of this service and submitted its nominating

petition, which contained a union label on the back where neither the label nor the text were in

eight-point type – and received unequivocal pre-circulation approval from the Bureau of Elections

as to the form of the nominating petition. This is because the applicable provisions of the Michigan

Election Law make clear that only the text required to be on petition sheets is to be printed in

certain type size – not optional labels.

Mere weeks ago, the Board abruptly deviated from this longstanding practice and failed to

approve RTWM’s initiative petition as to form for the sole reason that the petition included a

printer’s label with text printed in smaller than eight-point type. It is clear that based on this new

precedent the Board will in the future reject signatures that appear on such ballot question or

nominating petitions, including the Whitmer Campaign’s nominating petitions.

However, nothing in the Michigan Election Law requires labels that appear on petitions to

be printed in eight-point type, or requires the text within labels to be printed in eight-point type. The

Board’s new “rule” thus lacks a basis in the Michigan Election Law and exceeds the Board’s

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statutory authority. Additionally, the Board’s new “rule” will create substantial disruption to the

electoral process, as dozens of candidates and several ballot question committees have already been

circulating and gathering signatures on hundreds of thousands of petition sheets that include the type

of labels the Board has now rejected—many of which the Board or Bureau of Elections had already

approved as to form.

It is necessary and urgent for this Court to act now to clearly settle and articulate the

applicable rules and rights of the parties prior to any canvassing of signatures for the 2022 election

cycle to ensure the Michigan Election Law is applied fairly and equitably to all candidates. The Court

should also estop the Board from invalidating signatures that appear on petition sheets with any such

2
labels that are not in eight-point font or where the text associated with such labels is not eight-point

font when the Board or the Bureau of Elections had previously approved the form of these petitions

with the label in place. The Board announced this new rule less than two months before the

nominating petition deadline and after many candidates – in reliance on both the Board’s past

practices and precedents and on direct approval from the Bureau of Elections – circulated petitions

with these labels on them. To allow the Board to pull the rug out from these candidates at the

eleventh hour would result in inequities to both the candidates and the voting public who would

be deprived of their choice of candidate.

STATEMENT OF FACTS1

A. The Board’s Role in Reviewing and Approving the Form of Candidate Nominating
Petitions.

Under the Michigan Election Law, hundreds of candidates – from all political stripes – can

only appear on the ballot by collecting signatures on nominating petitions and submitting them to

the appropriate election official. See, e.g., MCL 168.53 (Governor), 168.93 (United States

Senator), 168.133 (Representative in Congress), 168.303 (school board), 168.409b, .413, .433, and

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.467b (non-incumbent judicial candidates). (Verified Compl. ¶ 8.) As to gubernatorial candidates,

the Michigan Election Law specifically provides as follows:

To obtain the printing of the name of a person as a candidate for

nomination by a political party for the office of governor under a
particular party heading upon the official primary ballots, there
shall be filed with the secretary of state nominating petitions
signed by a number of qualified and registered electors residing
in this state as determined under section 544f. Nominating petitions
shall be signed by at least 100 registered resident electors in each of
at least 1/2 of the congressional districts of the state. Nominating
petitions shall be in the form as prescribed in section 544c . . . .
Beginning January 1, 2014, nominating petitions shall be received

1
The Whitmer Campaign incorporates by reference the factual portions of RTWM’s Brief in
Support of its Verified Complaint that are specific RTWM.
3
 by the secretary of state for filing in accordance with this act up
to 4 p.m. of the fifteenth Tuesday before the August primary.
[See MCL 168.53 (emphasis added) (Verified Compl. ¶ 9).]

Under MCL 168.544f, “[t]he number of signatures of qualified and registered electors necessary

for nominating petitions under this act” for statewide offices is a minimum of 15,000 and a

maximum of 30,000. (Verified Compl. ¶ 9.)

As part of the Board’s procedures for reviewing candidate petitions, it has jurisdiction to

consider challenges to the form of those petitions and to disqualify and candidates on that basis.

See MCL 168.552(9) (“[T]he board of state canvassers may consider any deficiency found on the

face of petitions”); 168.476(3) (the Board makes “final determination on challenges to . . . a

petition”). (Verified Compl. ¶ 10.)

To assist candidates in avoiding disqualification due to defects in their forms, for decades

the Bureau of Elections has offered to review nominating petition forms to ensure that they comply

with the Michigan Election Law:

OBTAIN ASSISTANCE FIRST!

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If you are interested in seeking a public office in Michigan, you
should first contact the election official who is designated by law as
responsible for receiving filings for the specific office sought. The
election official will provide complete information on the
applicable filing requirements and the qualifications you must
meet to seek the office. [See Michigan Dep’t of State, Bureau of
Elections, Preparing, Circulating and Filing Petitions for Public
Office (Regularly Scheduled Elections) at p. 1 (emphasis added)
(Verified Compl. ¶ 11).]

For decades, thousands of candidates have taken advantage of this valuable service and had their

petition forms reviewed and approved by the Bureau of Elections staff before circulation. (Verified

Compl. ¶ 12.) Among the thousands of nominating petition forms (and ballot initiative forms)

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approved the Bureau of Elections over the decades have been thousands of petition forms that

contained a variety of small symbols and indicia such as a recycling symbol:

or a trademarked union printing label indicating to a singer that a ununionized printer printed the

petition:

(Verified Compl. ¶ 13.) These symbols and indicia are small and are placed in the corners of backs

of petitions where they do not obscure the text of a petition. (Verified Compl. ¶ 13 and its Ex. 1.)

The Board has never rejected a petition because it was defective as to form because the petition

included these symbols and indicia or because the text associated with these symbols and indicia

was not in eight-point font. (Verified Compl. ¶ 15.)

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In addition to these symbols and indicia, many form petitions prepared by printers include

a wide variety of text or annotations that not part of the text authorized by statute nor is this text

usually in eight point font:

INSTRUCTIONS ON REVERSE SIDE

* The “Countrywide” Partisan Petition form may be used by any partisan

candidate.
Exception: the form may not be used by a partisan candidate who seeks
the office of County Commissioner; such candidates must use the
“City/Township” Partisan Petition form.

REORDER NO. 402 (50 TO9 A PAD) REV. 02/15 PRINTING

SYSTEMS • TAYLOR, MI • 1-800-95-12345 • FORM APPROVED BY
DIRECTOR OF ELECTIONS, STATE OF MICHIGAN

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(Verified Compl. ¶ 16 and its Ex. 1.) The Board has never rejected a petition because it was

defective as to form because the petition included these annotations or extra text or because these

annotations and extra text were not in eight-point font. Indeed, the Legislature has amended the

Michigan Election Law dozens of times during the same time the Board was consistently

approving petitions that contained these symbols, indicia, and extra text, so the Legislature has

been aware of this practice, and has never included statutory text prohibit prohibiting the practice.

(Verified Compl. ¶¶ 17–18.)

What is more, under the Michigan Election Law, the Secretary of State has broad authority

to prescribe the form of petitions. See MCL 168.544d. The office of the Secretary of State has

never used that authority to prohibit or discourage the use of these symbols, indicia, and extra text,

nor has the office of the Secretary of State ever indicated that it believes that these symbols, indicia,

and extra text are part of the petition form such that any associated text must be in eight-point font.

The same is true for the Bureau of Elections. (Verified Compl. ¶¶ 19–20.)

In reliance on these decades of practice, tens of thousands of candidate (and ballot initiative

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proposal) petition sheets are currently circulating with recycling symbols, labels, trademarks, and

extra text. (Verified Compl. ¶ 21.)

B. The Bureau of Elections Approved the Whitmer Campaign’s Nominating Petition

Sheets With a Union Label Before Circulation.

Before circulating its nominating petition, the Whitmer Campaign utilized the pre-approval

process for candidate nominating petition forms outlined above. (Verified Compl. ¶ 22.) On June

22, 2021, the Whitmer Campaign emailed the Bureau of Elections staff, enclosed the “final version

of the Whitmer Nominating Petitions,” and asked the Bureau of Elections to “confirm that the

form looks ok/is compliant with any BOE rules/requirements/regulations[.]” (Verified Compl. ¶

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22 and its Exs. 2 and 3.) Later that same day, the Bureau of Elections responded and approved the

Whitmer Campaign’s nominating petition forms with no issues:

I’ve reviewed the attached nominating petition form, which I find

to be compliant with the requirements of the Michigan Election
Law. [(Verified Compl. ¶ 24 and its Ex. 2) (emphasis added).]

The Whitmer’s Campaign’s nominating petition, as submitted to and approved by the Bureau of

Elections, contained on its reverse a recycling symbol indicating to a signer that the petition was

printed on recycled paper, and a trademarked union printing label indicating to a signer that a

ununionized printer printed the petition:

(Verified Compl. ¶ 25 and its Ex. 3.) In reliance on the Bureau of Elections’ approval, the Whitmer

Campaign began collecting nominating petitions. As of the date of this filing, the Whitmer

Campaign has collected over 35,000 signatures on these petition sheets. If the Bureau of Elections

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had stated otherwise, the Whitmer Campaign would not have used that nominating petition.

(Verified Compl. ¶ 26.)

Prior to February 11, 2022, the Board regularly canvassed signatures on ballot proposal

petitions and nominating petitions containing similar labels without considering whether the text

printed within those labels complied with any statutory type size formatting requirements.

(Verified Compl. ¶ 35.) Indeed, the Board has never invalidated or rejected any signatures on any

ballot proposal petition or nominating petition because the petition failed to comply with statutory

formatting requirements because it included a label that may have contained text printed in smaller

than eight-point type. (Verified Compl. ¶ 36.) Thus, two members of the Board exceeded their

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authority and invented a new election law rule that finds no support in the Michigan Election Law,

conflicts with past practice, contradicts with the Bureau of Elections’ interpretation of the

Michigan Election Law, and establishes a precedent to reject ballot proposal and candidate

petitions because they contain labels that may include text printed in smaller than eight-point type,

even with otherwise valid signatures. (Verified Compl. ¶ 37.)

Following the Board’s February 11, 2022 meeting, the Bureau of Elections issued an

update to its manual for Filing for Office, Partisan Elective Offices acknowledging the Board’s

action on February 11, 2022 but stating that the Bureau of Elections would continue to accept

nominating petitions that include union labels printed in smaller than 8-point type:

The Bureau of Elections’ position is that otherwise substantially

compliant nominating petitions are in substantial compliance with
MCL 168.544c, regardless of the size of text within union labels.
The Bureau will accept nominating petitions without regard to the
union-label text size. The Bureau will accept nominating petitions
without regard to the union-label text size. Nonetheless, candidates
should consult with legal counsel on whether to submit signatures
on petition sheets including union labels with non-8 point type that
were approved as to form prior to February 11, 2022; and whether
to circulate or submit signatures on sheets with union labels with

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non-8 point type after February 11, 2022. [(Verified Compl. ¶ 38).]

ARGUMENT

The Board’s February 11, 2022, determination to reject ballot petitions and, by extension,

nominating petitions, containing labels unrelated to the substance of the petition is contrary to law,

inconsistent with the Board’s longstanding past practice, and arbitrary and capricious. This newly

announced “rule” threatens to create chaos in the electoral process, through which hundreds of

thousands of petition sheets with similar labels have already been circulating, many of them

expressly approved as to form by the Board or the Bureau of Elections, including those of the

Whitmer Campaign. Rather than creating a level playing field among candidates to help ensure

8
that voters have the opportunity to evaluate candidates on their merits, the Board’s newly created

“rule” would nullify hundreds of thousands of petition signatures without any prior warning to the

candidates or voters, and in some circumstances, would result in the Board nullifying petition

sheets that the Bureau of Elections had previously approved as to form as compliant with the

Michigan Election Law. Nothing in the Michigan Election Law requires or permits this outcome

and this Court should act now to stop the uncertainty which has resulted from the Board’s

determination and safeguard the electoral process.

I. The Michigan Election Law Does Not Require Labels or Text Within Labels On
Nominating Petitions to Appear in Eight-Point Type.

The Board’s February 11, 2022 determination impacts not just ballot initiative, referendum,

and constitutional amendment petitions but also candidate nominating petitions. In reaching their

conclusion, Chair Shinkle and Member Daunt relied on the general requirement in Section 544c(1)

that “the balance of the petition must be printed in 8-point type.” See MCL 168.544c(1). Thus,

while the Board’s decision applied to ballot petitions, it relied upon the statutory language

governing the form of nominating petitions and the Board’s decision creates a case and controversy

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with respect to nominating petitions too. Further, the issue of nominating petitions is of critical

importance. All candidate nominating petitions are due on April 19, 2022 – a month-and-a-half

from now. The Board’s creation of a new rule creates an issue of immediate importance for

candidates gathering signatures on nominating petitions currently. To promote clarity, equity, and

consistency in the application of the Michigan Election Law, this Court should immediately

address the label type-size question with respect to all petition types.

A. Provisions of the Michigan Election Law Governing Nominating Petitions.

Sections 544a, 544c, and 544d all govern nominating petitions. The substance of the petition

requirements are found in Section 544c, which prescribes the heading of the petition (“the words

9
‘nominating petition’ must be printed in 24-point boldface type”); a required warning to electors

about the consequence of fraudulent signatures (“‘Warning’ and language in the warning must be

printed in 12-point boldface type”); the inclusion of the name of the candidate and office (“in type

not larger than 24-point”); petition signature lines; and circulator warnings and certifications (which

are part of “[t]he balance of the petition [that] must be printed in 8-point type”). See MCL

168.544c(1).

Section 544d requires the Secretary of State to prescribe a form for nominating petitions

circulated countywide that substantially complies with Sections 544a and 544c. See MCL 168.544d

(“Petitions circulated countywide must be on a form prescribed by the secretary of state, which form

must be substantially as provided in sections 482, 544a, or 544c, whichever is applicable.”).

Section 544a extends Section 544c’s requirements for partisan nominating petitions to

nonpartisan nominating petitions. See MCL 168.544a (“The form, size and contents of all

nonpartisan nominating petitions shall be the same as is provided in section 544c for partisan

nominating petitions, except that under the heading ‘nominating petition’ shall be printed in 12-point

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type the word ‘nonpartisan’.”). And Section 544b requires that judicial candidates submit their

nominating petitions “on a form prescribed by the secretary of state.” See MCL 168.544b.

B. The Board’s February 11 Determination Regarding Labels is Contrary to the

Michigan Election Law.

“If the statute’s language is clear and unambiguous, then the statute must be enforced as

written.” Iliades v Dieffenbacher N Amer Inc, 501 Mich 326, 336; 915 NW2d 338 (2018). “A

necessary corollary of this principle is that a court may read nothing into an unambiguous statute

that is not within the manifest intent of the Legislature as derived from the words of the statute

itself.” Id. (internal quotation marks omitted). Nothing in Section 544c requires either that labels

be printed in eight-point type or that text within labels be printed in eight-point type. To the

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contrary, Section 544c is completely silent on the question of labels; its provisions neither mandate

nor prohibit the inclusion of a label on a nominating petition. Section 544c simply sets out certain

substantive requirements related to the content of the petition and validity of the signature-

gathering process that must appear on a ballot petition, as well as certain formatting requirements

applicable to that required substantive content. See Hackel v Macomb Cty Com’n, 298 Mich App

311, 324; 826 NW2d 753 (2012) (“[T]he doctrine of expressio unius est exclusio alterius, or

inclusion by specific mention excludes what is not mentioned[,] .... characterizes the general

practice that when people say one thing they do not mean something else.”).

In other words, Section 544c sets out the minimum substantive requirements that a petition

must meet to be considered compliant as to form, such that signatures appearing on that petition

would not be disqualified because the petition format did not meet the statutory form requirements.

Nothing in Section 544c requires labels or text within labels on nominating petitions to be printed

in eight-point type. And Section 544c is not an exacting and exhaustive list of every potential

visual formatting item that might be relevant to a petition. As just a few examples, Section 544c

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does not mandate: that a petition must use a particular font (e.g., Times New Roman) or even

category of fonts (serif or sans serif); that petitions must be printed in black ink; that signatures

must appear in a grid or table format; how many signature lines may or must appear on each

petition page2; the exact arrangement of words on the page (for example, whether the word

“WARNING” must appear above the text of the warning or whether it is sufficient to appear to

the left-hand side, where it is, as a matter of practice, most commonly located).

2
Guidance published by the Secretary of State with the Bureau of Elections’ ballot petition manual
recognizes and addresses these two points, prescribing a table format for signatures and specifying
the minimum and maximum number of signature lines per petition page.
11
 Sections 544c undoubtedly prescribes the substantive requirements that must be included

in a nominating petition for that petition to be considered valid and the particular type-size in which

they must appear. That makes sense: the Legislature has clearly determined what information a

candidate must provide to prospective voters and how conspicuously each piece of information

must appear on the face of the petition (e.g., the necessary type size and whether the font must be

bolded). But the Legislature said nothing about the types of labels a candidate could include with

the petition and has plainly not prohibited labels. That choice again makes sense: the presence of

a recycling symbol, union printing logo, or barcode to track circulation on a petition sheet has no

effect whatsoever on the substance of the petition. There would be no logical reason to impose

formatting requirements for these types of labels, particularly when printer’s labels are often

trademarked and must appear in a specific configuration. This is why statutory language must

always be read in context and as a whole. See Dept of Envtl Quality v Worth Twp, 491 Mich 227,

238; 814 NW2d 646 (2012) (“When considering the correct interpretation, the statute must be read

as a whole,” and “[i]ndividual words and phrases, while important, should be read in the context

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of the entire legislative scheme.”) (internal quotation marks omitted).

In reaching a contrary conclusion during the February 11, 2022 meeting, the two members

of the Board who voted against approving RTWM’s petition and created a new rule for how they

would canvass petitions in the future, including nominating petitions, did not purport to rely on

any statutory provision specifically related to labels or graphics. Rather, those two members of the

Board only pointed to the general requirement in Section 544c(1) that “the balance of the petition

must be printed in 8-point type.” See MCL 168.544c(1). Again, this provision plainly applies only

to the text of the actual substantive petition and its required contents, not to recycling or printer’s

labels appearing on the petition. Applying this requirement to labels would lead to absurd and

12
impractical results. Printers would be required to attempt to measure the type-size of text inside

pre-set printer’s labels – labels that are likely trademarked in particular configuration – and then

try to enlarge these labels to approximate eight-point type, resulting in much larger labels that

detract from the substance of the petition. And any circulator who wanted to hand-write in page

numbers – which, like labels, are neither required nor prohibited by Section 544c – to keep track

of his or her petition sheets would have to undertake the impossible task of ensuring that the

handwriting was in exactly eight-point type-size, or risk disqualifying all of the signatures if the

numerals were even a millimeter too large. Those results would be contrary to the goal of the

Michigan Election Law to allow elections to procced in a fair, organized, and equitable manner,

with reasonable rules for ballot access.

Indeed, the new guidance from the Bureau of Elections underscores this point. In its recent

amendment its manual for Filing for Office, Partisan Elective Offices, the Bureau of Elections

expressly disagreed with the Board’s new rule regarding labels, stating that the Bureau of Elections

“will accept nominating petitions without regarding to the union-label text size.” (Id.) The Bureau

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of Elections has thus recognized that labels do not fall within the petition content regulated by

MCL 168.544c. That is the correct conclusion, one with which the Board was in accord for decades

until its abrupt departure from that longstanding practice on February 11, 2022. The views of the

Bureau of Elections are entitled to “respectful consideration” by the Court. In re Complaint of

Revas Against SBC Mich, 482 Mich 90, 103; 701 NW2d 259 (2008). Because the size and type-

size of labels are not regulated by Section 544c, the Board’s February 11, 2022, determination was

both erroneous and contrary to statute. See Brightmoore Gardens, LLC v Marijuana Regulatory

Agency, ___ NW2d ___, 2021 WL 1822808, at *4 (Mich Ct App, 2021) (“[A]n agency is not

empowered to change law enacted by the Legislature.”).

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 What is more, the type size requirements in MCL 168.544c by their plain language only

apply to text – not labels. Michigan law defines a union label “as a trademark, term, design, symbol

or device of a labor organization or association of working-men adopted by them to distinguish their

craft, trade or work or membership in or indicating work done by such labor organization or

association of working-men.” MCL 750.265a; see also MCL 24.61 (mandating under the State

Printing Act that unless exempted, all printed materials “bear the label of the branch of the allied

printing trades council of the locality in which it is printed.”). Thus, by definition, the union label at

issue in this case is not text and is not required to comply with the type size requirements of the

Michigan Election Law. Indeed, the union label is a federally registered trademark – not text. This

same analysis applies equally to other labels contained on the face or back of petition sheets. As

such, this Court should declare that the type size requirements of the Michigan Election Law do not

apply to labels and are limited to the required statutory text.

C. The Board’s February 11 Determination Regarding Labels is Inconsistent

with Past Practice and Will Create Chaos and Uncertainty.

The Board’s February 11, 2022 deadlock was startling not only because the Board announced

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an unprecedent new “rule,” but also because it contradicts the Bureau of Elections’ decades of

practice, substantially disrupts the electoral process, and creates an uneven playing field for

candidates. For years, the Bureau of Elections has been providing consultation services to candidates

regarding the form of their petitions, and has never once identified the type-size of a label on a

petition as a problem with the form. The Board has also canvassed signatures on hundreds of

nominating petitions containing union labels and other labels with text printed in smaller than eight-

point type, but has never invalidated any signature simply because it appeared on a petition sheet

that contained one of these labels. By deadlocking as to the form of RTWM’s petition on February

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11, 2022, the Board established a precedent to invalidate signatures on nominating petitions on the

basis that the petition sheets contain labels with text printed in smaller than eight-point type.

What is more, the Secretary of State, whom the Legislature has charged by statute with the

responsibility to “prescribe[]” the form of a nominating petition that “substantially” complies with

Section 544c, see MCL 168.544d, has already determined in the Bureau of Elections’ recent

guidance “[t]he Bureau of Elections’ position is that otherwise substantially compliant nominating

petitions are in substantial compliance with MCL 168.544c, regardless of the size of text within

union labels.” (Verified Comp. ¶ 38.) The Board’s February 11, 2022 determination thus expressly

conflicts with the determination made by the Secretary of State pursuant to her statutory authority.

That further underscores the need for this Court’s review to resolve this conflict.

At a bare minimum, the Board’s February 11, 2022 action creates massive uncertainty in

the electoral process: candidate nominating petitions must be submitted by April 19, 2022, which

is now less than two months away. Candidates have already been gathering signatures for several

months, many of which may appear on petition sheets containing printer’s labels, recycle symbols,

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QR codes, and bar codes, which had been expressly approved Bureau of Elections. Now, several

months later, the Board had indicated it considers those petition sheets invalid. That puts many

candidates in the extremely difficult position of deciding whether to go forward with submitting

signatures on petition sheets that contain labels with text printed in smaller than eight-point type

(and thereby risk that the Board may invalidate hundreds or thousands of signatures, to a degree

that jeopardizes the candidate’s chances of meeting the April 19 deadline and making it onto the

ballot) or investing substantial resources in reprinting and recirculating petitions to gather additional

signatures at substantial expense.

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 It bears emphasizing that no candidate had notice that the Board might apply Section 544c

in this way until February 11, 2022. The Board’s interpretation of Section 544c lacks a textual basis

in the statute, risks creating severe unfairness in the electoral process, and directly contradicts the

Board’s prior practices. It would be grossly unfair for the Board to retroactively invalidate the

thousands of signatures gathered by candidates less than two months before nominating petitions

are due by spontaneously announcing an unprecedented new “rule” during its February 11, 2022

meeting, especially when those petition sponsors lacked any prior notice that the Board might

impose such a rule. See generally Purcell v Gonzalez, 549 US 1, 4; 127 S Ct 5; 166 L Ed 2d 1

(2006) (cautioning against interfering with election rules and procedures where an election is

imminent); Republican Nat’l Comm v Democratic Nat’l Comm, 140 S Ct 1205, 1207; 206 L Ed

2d 452 (2020) (per curiam) (“This Court has repeatedly emphasized that lower federal courts

should ordinarily not alter the election rules on the eve of an election.”).

This Court should reverse the Board’s February 11, 2022 determination now to ensure that

uniform rules are applied to all candidates who wish to participate in the 2022 election cycle.

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II. The Board Should Be Estopped From Rejecting Any Nominating Petitions that Have
Labels On Them that the Bureau of Elections Approved Prior to Circulation.

The Michigan Supreme Court has long held that the doctrine of equitable estoppel applies

not only to individuals, but also to the state of Michigan and its officers and agencies. Oliphant v

State, 381 Mich 630, 638; 167 NW2d 280 (1969) (“That the State as well as individuals may be

estopped by its acts, conduct, silence and acquiescence is established by a line of well adjudicated

cases.”); see also Wiersma v Michigan Bell Tel Co, 156 Mich App 176, 185; 401 NW2d 265, 269

(1986) (same and citing Oliphant with approval). A governmental entity can be estopped when:

(1) by representation, admissions, or silence, intentionally or negligently, the governmental entity

induces another party to believe facts; (2) the other party justifiably relies and acts on this belief;

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and (3) the other party will be prejudiced if the first party is permitted to deny the existence of the

facts . . . .” Howard Twp Bd of Trustees v Waldo, 168 Mich App 565, 575; 425 NW2d 180 (1988).

The Whitmer Campaign satisfies all of these factors.

First, the Bureau of Elections’ represented that its staff “will provide complete information

on applicable filing requirements and the qualifications you must meet to seek [] office.” (Verified

Compl. ¶ 11.) This is a service that the Bureau of Elections has long-provided to candidates to

avoid having their nominating petitions disqualified. The Whitmer Campaign then sent to the

Bureau of Elections on June 22, 2021 the “final version of the Whitmer Nominating Petitions,”

and asked the Bureau of Elections to “confirm that the form looks ok/is compliant with any BOE

rules/requirements/regulations[.]” (Verified Compl. ¶ 23 and its Exs. 2 and 3.) Later that same day,

the Bureau of Elections responded and approved the Whitmer Campaign’s nominating petition

forms as compliant with the Michigan Election Law:

I’ve reviewed the attached nominating petition form, which I find

to be compliant with the requirements of the Michigan Election
Law. [(Verified Compl. ¶ 24 and its Ex. 2).]

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Second, the Whitmer Campaign justifiably relied on the Bureau of Elections’ affirmative

representation that the Whitmer Campaign’s nominating petition was “compliant with the

requirements of the Michigan Election Law” and began to circulate the nominating petition that

the Bureau of Elections approved. If the Bureau of Elections had stated otherwise, the Whitmer

Campaign would not have used that nominating petition. (Verified Compl. ¶ 26.)

Third, and finally, the Whitmer Campaign will undoubtedly suffer prejudice if the Board

invalidates the Whitmer Campaign’s nominating petition signatures on the basis of a newly

announced rule regarding the size of union labels after the Bureau of Elections approved the form

of the Whitmer Campaign’s nominating petition. Nominating petitions are due on April 19, 2022

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– in approximately one-and-a-half months – and the Whitmer Campaign has already expended

significant time and resources gathering over 35,000 signatures on the Bureau of Elections-

approved nominating petition that run the risk of being invalidated. The Whitmer Campaign should

not have to choose between submitting nominating petition forms that may be rejected or investing

substantial resources in reprinting and recirculating petitions to gather additional and sufficient

signatures.

For these reasons, even if the Court does find that labels and their associated text must

appear in eight-point font on petition sheets, the Court should estop the Board from rejecting the

Whitmer Campaign’s nominating petitions, and any other nominating petitions that contain such

labels and where the candidate had received Bureau of Elections approval before beginning the

circulation process.

CONCLUSION AND RELIEF SOUGHT

WHEREFORE, the Whitmer Campaign respectfully requests that this Court:

A. Conduct a speedy hearing on this matter and advance it on the Court’s calendar

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under MCR 2.605(D);

B. Declare that MCL 168.482, 168.544a, 168.544c, and 168.544d do not require that

text within a logo, symbol, label, or other image or indicia on a petition be printed in eight-point

type;

C. Declare that MCL 168.482, 168.544a, 168.544c, and 168.544d do not require a

logo, symbol, label, or other image or indicia on a petition be printed in eight-point type;

D. Declare that the Michigan Election Law does not permit the Board of State

Canvassers to reject petitions or petition signatures under MCL 168.482, 168.544a, 168.544c, or

168.544d on the basis that such petitions either: (1) include a logo, symbol, label, or other image or

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indicia that is not printed in eight-point type; or (2) include a logo, symbol, label, or other image or

indicia that contains text that is not printed in eight-point type;

E. Declare that all petitions circulating during the 2022 election cycle that are

otherwise compliant with law and that include a logo, symbol, label, or other image or indicia that

is not printed in eight-point type or contain text within that logo, symbol, label, or other image or

indicia that is not printed in eight-point type are valid and compliant with law or that the Board’s

newly announced rule only applies on a prospective basis for petitions submitted to the Board or

Bureau of Elections for approval as to form after February 11, 2022;

F. Declare that the form of the Whitmer Campaign’s nominating petitions are

compliant with the Michigan Election Law; and,

G. Grant any and all other relief that this Court deems just and proper.

Respectfully submitted,

/s/ Christopher M. Trebilcock

Christopher M. Trebilcock (P62101)
Vincent C. Sallan (P79888)
CLARK HILL PLC

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500 Woodward Ave., Ste. 3500
Detroit, MI 48226
(313) 965-8245
ctrebilcock@clarkhill.com
vsallan@clarkhill.com

Attorneys for Intervening-Plaintiff

Gretchen Whitmer for Governor
Dated: March 1, 2022
CERTIFICATE OF SERVICE

The undersigned certifies that she electronically filed the foregoing document with the
Clerk of the Court through means of the Case Management Electronic Filing System on March 1,
2022, who sent notification of such filing to all parties and/or attorneys of record for all parties, to
the above case at their respective addresses and as indicated on the pleadings.

/s/ Pamela Bright

Pamela Bright

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