SB 961

SENATE BILL NO. 961
A bill to create a state voting rights act; to provide for
the powers and duties of certain state and local governmental officers and
entities; to provide for a court-appointed monitor under certain circumstances;
to prohibit certain discriminatory activity and to prescribe civil sanctions;
to create a fund; to provide remedies; to prescribe penalties; and to repeal
acts and parts of acts.
the people of the state of michigan enact:
Sec. 1. This act may be
cited as the "state voting rights act".
Sec. 2. In recognition of legislative findings regarding the protections for
the right to vote provided by the state constitution of 1963, and in
conjunction with the constitutional guarantees of equal protection and the
freedoms of speech, assembly, consultation, instruction, and petition under the
law and against the denial and abridgement of the voting rights of members of a
racial, color, or language minority group, it is the public policy of this
state to do all of the following:
(a) Encourage participation in the elective franchise by all
eligible electors to the maximum extent.
(b) Ensure that eligible electors who are members of a racial,
color, or language minority group have an equal opportunity to participate in
the political processes of this state and to exercise the elective franchise.
Sec. 3. As used in this
act:
(a) "Alternative method of election" means a method
of electing candidates to the legislative body of a local government other than
an at-large method of election or a district-based method of election and
includes, but is not limited to, proportional ranked-choice voting, cumulative
voting, or limited voting that incorporate aspects of at-large and
district-based methods of election.
(b) "At-large method of election" means a method of
electing candidates to the legislative body of a local government in which
candidates are voted on by all electors of the local government. At-large
method of election does not include any alternative method of election.
(c) "Disparity" means any statistically significant
variance that is supported by validated methodologies.
(d) "District-based method of election" means a
method of electing candidates to the legislative body of a local government in
which, for local governments divided into districts, a candidate for any
district is required to reside in the district and candidates representing or
seeking to represent the district are voted on by only the electors of the
district.
(e) "Federal voting rights act" means the federal
voting rights act of 1965, 52 USC 10301 to 10314, 10501 to 10508, and 10701 to
10702.
(f) "Government official" means
any individual who is elected or appointed to an office in this state or a
local government or who is authorized to act in an official capacity on behalf
of this state or a local government.
(g) "Language minority
group" means that term as defined in 52 USC 10503.
(h) "Local
government" means any of the following:
(i) A
county.
(ii) A
city.
(iii)
A township.
(iv) A
village.
(v) A public
school as that term is defined in section 5 of the revised school code, 1976 PA
451, MCL 380.5.
(vi) A
public community college.
(vii)
A district library.
(viii)
Any other political subdivision of this state, authority, or other public body corporate
that has an elected governing body.
(i) "Protected
class" means individuals who are members of
a racial, color, or language minority group, or 2 or
more racial, color, or language minority groups, and includes any of the following:
(i)
Individuals who are members of a racial, color, or language minority group that
has been subject to protection under a consent decree ordered by a
federal court in this state in a suit alleging
a violation of section 2 of the federal voting rights act, 52 USC 10302.
(ii)
Individuals who are members of a minimum
reporting category that has ever been
officially recognized by the United States Census Bureau.
(j) "Racially polarized
voting" means voting in which the candidate or electoral choice preferred
by a protected class diverges from the
candidate or electoral choice preferred by other electors.
(k) "Vote" or
"voting" include any action necessary to cast a ballot and make that
ballot count in any election, including, but not limited to, registering as an
elector, applying for an absent voter ballot, or any other action required by
law as a prerequisite to casting a ballot and having that ballot counted,
canvassed, certified, and included in the appropriate totals of votes cast with
respect to an election.
(l) "Voting
eligible population" and "eligible electors" mean those United States citizens who have attained the age of 18
years, who have resided in this state for 30 days, and who meet the
requirements of local residence as required by law.
Sec.
4. Notwithstanding any other provision of law to the contrary, anything
required by this act to be done on a day certain, if that day falls on a
Saturday, Sunday, or legal holiday, may be done within the same time limits on
the next business day.
Sec. 5. The provisions of this act must be construed liberally
in favor of all of the following, and the provisions
of all other statutes, rules and regulations, local laws, and ordinances
related to the right to vote may be construed in favor of all of the following:
(a) Protecting the right to cast a ballot and make that ballot
effective.
(b) Ensuring that qualified individuals who are registered electors, or who seek to be admitted
as registered electors to vote in an election, are not impaired in voting or registering to vote.
(c) Ensuring that each registered elector
is not impaired in voting, including, but not limited to, having the elector's
vote counted.
(d) Making the fundamental right to vote more accessible to
qualified electors.
(e) Ensuring equitable access for protected class members to
opportunities to be admitted as electors and to vote.
(f) Ensuring that protected class
members have equitable opportunities to elect candidates of the protected class
members' choice.
Sec. 7. (1) Subject to section 10, a local government, state agency, or state
or local government official shall not impose any qualification for
eligibility to be an elector, impose any other prerequisite to voting, impose
any ordinance, regulation, or other law regarding the administration of
elections, impose any standard, practice, procedure, or policy, or take or fail to take any other action, in a
manner that results in, will result in, or is intended to result in, either of
the following:
(a) A disparity in voter participation, access to voting
opportunities, or the equal opportunity or
ability to participate in the political process between a protected class and
other members of the electorate.
(b) Based on the totality of the circumstances, an impairment
of the equal opportunity or ability of members of a protected class to participate in the
political process and nominate or elect
candidates of the protected class members' choice.
(2) Except as otherwise provided in
this subsection, an impairment may be found to exist under subsection
(1)(b) in circumstances that include, but are not limited to, any of the
following:
(a) A local government closes, moves, or consolidates 1 or
more precincts or clerk's offices in a manner
that impairs the right to vote of members of a protected class or results in a
disparity in geographic access between a protected class and other members of
the electorate, unless the changes are necessary to
significantly further a compelling governmental interest and there is no
alternative that results in a smaller impairment or disparity.
(b) A local government closes,
moves, or consolidates 1 or more polling places, early voting sites, or absent
voter ballot drop boxes in a manner that impairs the right to vote of members
of a protected class or results in a disparity in geographic access between a
protected class and other members of the electorate, unless
the changes are necessary to significantly further a compelling governmental
interest and there is no alternative that results in a smaller impairment or
disparity.
(c) A local government
changes the time or date of an election in a manner that impairs the right to
vote of members of a protected class, including, but not limited to, making the
change without proper notice as required by law.
(d) A local government fails
to utilize voting or election materials in
languages other than English that are provided to the
local government by the secretary of state, as required by state law.
(3) Implementing a reorganization of a local government that alters which electors are eligible to vote in
elections for that local government, including, but not limited to, an
annexation, incorporation, dissolution, consolidation, or division of a local
government, violates subsection (1) if the
reorganization is intended to impair or diminish the equal opportunity or
ability of protected class members to nominate or elect candidates of the
protected class members' choice, or, based on the totality of the
circumstances, the equal opportunity or ability of protected class members to nominate or
elect candidates of the protected class members' choice is impaired or diminished
as a result of the reorganization.
Sec. 9. (1) Subject to section 10, a local government shall not
employ or impose any method of election that
has the effect of impairing the equal opportunity or
ability of protected class members to nominate
or elect candidates of the protected class members'
choice as a result of diluting the vote
of those protected class members.
(2) A local government violates subsection (1) if both of the following
occur:
(a) Either of the following occur:
(i)
Elections in the local government exhibit racially polarized voting and the candidates or electoral choices preferred by a
protected class would usually be defeated.
(ii)
Based on the totality of the circumstances, the equal
opportunity or ability of protected class members to nominate or elect
candidates of the protected class members' choice is impaired.
(b) One or more changes to the
method of election exist that a court could order under section 23 that would
likely mitigate the impairment of the equal opportunity or ability of protected
class members to nominate or elect candidates of the protected class members'
choice.
(3) To the extent that a change to
the method of election is a proposed district-based plan that provides
protected class members with 1 or more reasonably configured districts in which
the protected class members would have an equal opportunity or ability to
nominate or elect candidates of the protected class members' choice, it is not
necessary to show that members of a protected class comprise a majority of the
total population, voting age population, voting eligible population, or
registered voter population in any district.
(4) In determining whether elections in a local government exhibit racially
polarized voting under this section, a court shall adhere to all of the
following guidelines:
(a) Statistical evidence using validated methodologies is more probative than
nonstatistical evidence, but nonstatistical evidence
may still be afforded probative value.
Statistical evidence based on election results, and inferences about racially
polarized voting from those election results, is more probative than
statistical evidence based on survey data, but statistical evidence based on
survey data may still be afforded probative value.
(b) In the case of claims
brought on behalf of a protected class consisting of 2
or more racial, color, or language minority groups that
are similarly situated because those groups are politically
cohesive in that local government, members of those racial,
color, or language minority groups must be combined to determine whether
voting by those combined protected class members is polarized from other
electors. It is not necessary to demonstrate that voting by members of each racial, color, or language minority group is
separately polarized from other electors. However,
empirical evidence may be introduced to show that members of a protected class
or 2 or more protected classes do not vote in a politically cohesive manner.
(c) Evidence concerning the
causes of, or the reasons for, the occurrence of racially polarized voting is
not relevant to the determination of whether racially polarized voting occurs,
or whether candidates or electoral choices preferred by a protected class would usually be defeated. In particular,
evidence concerning alternate explanations for racially polarized voting
patterns or election outcomes, including, but not limited to, partisan
explanations, must not be considered. However,
evidence concerning those factors may be introduced for purposes of considering
appropriate remedies or punitive damages.
(d) Evidence concerning
whether a protected class is geographically compact or concentrated must not
be considered in determining liability, but
may be considered when determining a remedy for a violation of this section.
(e) Evidence concerning
projected changes in population or demographics must not be considered in determining liability, but may be considered
when determining a remedy for a violation of this section.
Sec.
10. Sections 7 and 9 do not apply to the independent citizens redistricting
commission established under section 6 of article IV of the state constitution
of 1963.
Sec. 11. (1) In
determining whether, based on the totality of the circumstances, an impairment
of the right to vote for any eligible elector who is
a protected class member, or of the equal opportunity
or ability of eligible electors who are protected
class members to participate in the political process and nominate or elect candidates of the eligible electors' choice, has occurred under
section 7(1)(b) or (3) or 9(2)(a)(ii), a court may consider factors that include, but
are not limited to, any of the following:
(a) Whether members of the protected class vote at a lower
rate than other electors.
(b) The history of discrimination affecting members of the
protected class.
(c) The extent to which members of the
protected class are disadvantaged, or otherwise bear the effects of past
public or private discrimination, in any areas that may hinder the members' ability to participate effectively in the
political process, including education, employment, health, criminal justice,
housing, transportation, land use, or environmental protection.
(d) The use of overt or subtle racial appeals by government officials or in political campaigns.
(e) The extent to which members of the
protected class have been elected to office.
(f) The extent to which members of the
protected class have faced barriers with respect to accessing the
ballot, receiving financial support, or receiving any other support for an
election.
(g) The extent to which members of the
protected class contribute to political campaigns at lower rates.
(h) The extent to which candidates face hostility or barriers
while campaigning due to the candidate's membership in the
protected class.
(i) Any statute, ordinance, regulation, or other law regarding
the administration of elections, or any standard, practice, procedure, or
policy, that tends to impair the right to vote
for any protected class members, or that tends to impair
the equal opportunity or ability of protected
class members to participate in the political process and nominate or elect candidates of the protected class members' choice.
(j) The presence of racially polarized voting.
(k) The lack of responsiveness by elected officials to the
particularized needs of protected class members or a community of protected
class members.
(l)
Whether the challenged method of election, ordinance, resolution, rule, policy,
standard, regulation, procedure, or law was designed to advance, and does
materially advance, a compelling state interest that is substantiated and
supported by evidence.
(m) The extent to which protected
class members suffer the effects of historical housing segregation or benefit
from housing policies to implement fair housing goals.
(n) The extent to which officials
have undertaken efforts to remedy racial disparities that have yielded
improvements for protected class voters. If the efforts to remedy racial disparities
and any improvements are inadequate, those efforts may still be considered.
(2) In determining whether a violation of section 7 or 9 has
occurred, a court shall not consider any of the following factors:
(a) The total number or share of members of a protected class
on whom a challenged method of election, ordinance, resolution, rule, policy,
standard, regulation, procedure, or law does not impose a material burden. However, evidence may be introduced showing a challenged
method of election, ordinance, resolution, rule, policy, standard, regulation,
procedure, or law does not affect qualified electors who are protected class
members more than qualified electors who are not protected class members.
(b) The degree to which the challenged method of election,
ordinance, resolution, rule, policy, standard, regulation, procedure, or law
has a long pedigree or was in widespread use at some earlier date, but this factor may be considered for determining a
remedy or punitive damages.
(c) The use of an identical or similar challenged method of
election, ordinance, resolution, rule, policy, standard, regulation, procedure,
or law in another local government, unless the other
local government adopted or implemented that method of election, ordinance,
resolution, rule, policy, standard, regulation, procedure, or law to remedy a
violation under this act or another law, rule, or regulation affecting voting
rights or to enhance voting rights of a protected class.
(d) The availability of other forms of voting unimpacted by
the challenged method of election, ordinance, resolution, rule, policy,
standard, regulation, procedure, or law to all members of the electorate,
including members of the protected class.
(e) A prophylactic impact on potential criminal activity by
individual electors, if those crimes have not occurred in the local government
in substantial numbers, or if the connection between the challenged policy and
any claimed prophylactic effect is not supported by substantial evidence.
(f) Mere invocation of interests in voter confidence or
prevention of fraud. However, evidence may be
introduced to show the challenged practices were implemented to address actual
instances of voter fraud in the local government or in the vicinity of the
local government, that those practices were narrowly tailored to prevent a
recurrence of those instances of voter fraud, and that, before implementing the
practices, the local government considered and took reasonable measures to
prevent or minimize the possible adverse impacts on protected classes.
(g) A lack of evidence concerning the intent of electors,
elected officials, or public officials to discriminate against protected class
members. However, written evidence of the intent of
electors, elected officials, or public officials, and any oral statements of
those electors, elected officials, or public officials that augment the written
evidence, may be introduced, particularly to address whether punitive damages
are appropriate or in evaluating claims of discriminatory intent.
(3) Evidence that the court
determines is not probative of the adverse impact of a challenged method of
election, ordinance, resolution, rule, policy, standard, regulation, procedure,
or law may be introduced for the purpose of determining the appropriate
remedies, particularly to address whether punitive damages are appropriate.
(4) A particular combination
or number of factors under subsection (1) is not required for a court to
determine that an impairment occurred. The court shall consider a particular
factor only if and to the extent evidence pertaining to that factor is introduced.
(5) To the extent a claim involves a
local government, evidence of the factors under subsection (1) is most
probative if the evidence relates to the local government in which the alleged
violation occurred, but still holds probative value if the evidence relates to
the geographic region in which that local government is located or to this
state.
Sec. 13. (1) Except as
otherwise provided in subsection (6), before commencing an action against a
local government alleging a violation of section 7 or 9, a prospective
plaintiff must send by certified mail a
notification letter to the clerk and chief
administrative officer of the local government asserting that the local
government may be in violation of section 7 or 9. The
notification letter must explain in detail each alleged violation of section 7
or 9 and must propose a remedy for each alleged violation. Any individual
aggrieved by a violation of section 7 or 9, any entity whose membership
includes individuals aggrieved by a violation of section 7 or 9, any entity
whose mission would be frustrated by a violation of section 7 or 9, or any
entity that would expend resources in order to fulfill its mission as a result
of a violation of section 7 or 9 may be a prospective plaintiff.
(2) Within 30 days after receiving a
notification letter under subsection (1), the clerk of the local government and
the chief administrative officer or chief executive officer of that local
government, along with legal counsel or any other individuals the local
government wishes to attend, may meet with the prospective plaintiff or the
prospective plaintiff's representatives to prepare and agree on a plan to
address the alleged violations of section 7 or 9. If the local government does
not meet with the prospective plaintiff, the prospective plaintiff may seek the
remedies provided under subsections (4) and (6). If the local government agrees
to meet with the prospective plaintiff to prepare and agree on a plan to
address the alleged violations of section 7 or 9, the prospective plaintiff or
the prospective plaintiff's representatives must participate in the meeting.
The plan described in this subsection must be in writing, be approved by a
resolution of the governing body of the local government, and do all of
the following:
(a) Identify each alleged violation
of section 7 or 9 by the local government.
(b) Identify a specific remedy for
each alleged violation of section 7 or 9 by
the local government or state that the parties agree no remedy is appropriate
for 1 or more of the alleged violations.
(c) Affirm the local government's intent to enact and
implement the remedy.
(d) Establish specific measures that the local government must take to facilitate any
needed approvals to implement each specific remedy.
(e) Provide a schedule for the necessary
approvals and the implementation of each specific remedy. The schedule must
provide a sufficient amount of time for all needed steps to obtain
authorization for the remedy, including, as necessary, from a court under
section 23(5).
(3) If a prospective plaintiff and
the local government agree on a written plan that complies with subsection (2),
and that written plan is approved by a resolution of the governing body of the
local government, no action may be filed by the prospective plaintiff unless
the local government fails to comply with the requirements of the written plan.
If a prospective plaintiff and the local government do not agree on a written
plan as described under subsection (2) within 60 days after the prospective
plaintiff and the local government first meet under subsection (2), the
prospective plaintiff may seek the remedies as provided under subsections (4)
and (6).
(4) If a prospective plaintiff
complies with subsections (1) and (2), that prospective plaintiff may file a
complaint with the secretary of state as provided in this subsection or may
file an action as provided under subsection (6). A complaint filed with the
secretary of state must be in writing in a form required by the secretary of
state and must include the notification letter to the local government as
required under subsection (1). After receiving a written complaint, the
secretary of state shall send by certified mail a written request to the local
government for a written response to the complaint from the local government.
Within 21 days after receiving the written request from the secretary of state,
the local government shall send by certified mail to the secretary of state a
detailed written response to each alleged violation of section 7 or 9 and
explain why the local government was unable to reach an agreement with the
prospective plaintiff on a plan to address each alleged violation of section 7
or 9. After receiving the written response from the local government, the
secretary of state shall investigate the complaint, including, but not limited
to, conferring with the prospective plaintiff and the local government as
considered necessary, to address the complaint with a written plan as provided
under subsection (2), to find that there was no violation of section 7 or 9, or
to make a determination that the local government is violating section 7 or 9.
If the secretary of state determines that the local government is violating
section 7 or 9 and the local government will not agree to a written plan to
remedy each violation that is acceptable to the secretary of state, the
secretary of state shall make a written referral to the attorney general and
notify the prospective plaintiff of that determination. A prospective plaintiff
who files a complaint with the secretary of state under this subsection shall
not commence an action against the local government under subsection (6) until
1 of the following occurs:
(a) The secretary of state
determines that there is no violation of section 7 or 9.
(b) The secretary of state
determines the local government is violating section 7 or 9 and the local
government will not agree on a written plan to remedy each violation that is
acceptable to the secretary of state.
(c) Ninety days or more have elapsed
since the date the secretary of state received the local government's response
to the written complaint.
(5) The secretary of state may adopt rules under the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, in
accordance with state law to effectuate the purposes of subsection (4).
(6) A party may bring an action as provided
under section 21 for a violation of section 7 or 9 under any of the
following circumstances:
(a) The party filed a complaint as
provided under subsection (4) and 1 of the following occurs:
(i)
The secretary of state determines that there is no violation of section 7 or 9.
(ii)
The secretary of state determines that the local government is violating
section 7 or 9 and the local government will not agree on a written plan to
remedy each violation that is acceptable to the secretary of state.
(iii)
Ninety days or more have elapsed since the secretary of state received the
local government's response to a written complaint filed under subsection (4).
(b) Another party has already
submitted a notification letter under subsection (1) alleging a substantially
similar violation and that party is eligible to bring an
action under this subsection.
(c) Following the party's
submission of a notification letter under subsection (1), the local government failed to implement a written plan as provided under
subsection (2).
(d) The party is seeking
preliminary relief with respect to an upcoming election in accordance with
section 27.
(e) The party is seeking preliminary
relief with respect to an action about which notice is required under section
653c(1) or (2) of the Michigan election law, 1954 PA 116, MCL 168.653c.
(f) The party sent the notification
letter as required under subsection (1) and the local government did not meet
or approve a written plan as required under subsection (2).
Sec.
15. (1) The Michigan voting rights assistance fund is created in the state
treasury.
(2) The state treasurer shall
deposit money and other assets received from charitable contributions or from
any other source in the Michigan voting rights assistance fund. The state
treasurer shall direct the investment of money in the Michigan voting rights
assistance fund and credit interest and earnings from the investments to the
Michigan voting rights assistance fund.
(3) Money in the Michigan voting
rights assistance fund at the close of the fiscal year remains in the fund and
does not lapse to the general fund.
(4) The department of state is the
administrator of the Michigan voting rights assistance fund for audits of the
Michigan voting rights assistance fund.
(5) The department of state shall
expend money from the Michigan voting rights assistance fund only for the
purpose of reimbursing prospective plaintiffs and local governments for certain
expenses incurred in accordance with both of the following:
(a) Section 17.
(b) Section 8 of the language
assistance for elections act.
Sec.
17. (1) Subject to subsection (4), if, pursuant to a process commenced by a
notification letter under section 13 or 24, a local government enacts or
implements a remedy to a potential violation of this act, or to a potential
violation of a state or federal law involving, in whole or in part, the rights
of disabled electors as provided under section 24, the department of state
shall reimburse the prospective plaintiff who sent the notification letter from
the Michigan voting rights assistance fund, or, if there is insufficient money
in the Michigan voting rights assistance fund, from other money appropriated to
the department of state for this purpose, for the reasonable costs to generate
the notification letter under section 13.
(2) If a local government enacts or
implements a remedy to a potential violation of this act, or to a potential
violation of a state or federal law involving, in whole or in part, the rights
of disabled electors as provided under section 24, either in response to a
notification letter received under section 13 or 24 or on its own volition, the
department of state shall reimburse that local government from the Michigan
voting rights assistance fund, or, if there is insufficient money in the
Michigan voting rights assistance fund, from other money appropriated to the
department of state for this purpose, for the reasonable costs to evaluate
whether the remedy was necessary to prevent a potential violation of this act, or
to a potential violation of a state or federal law involving, in whole or in
part, the rights of disabled electors as provided under section 24.
(3) The department of state shall
reimburse a local government from the Michigan voting rights assistance fund,
or, if there is insufficient money in the Michigan voting rights assistance
fund, from other money appropriated to the department of state for this
purpose, for the reasonable costs incurred to evaluate whether a remedy is
necessary to prevent a possible violation of this act, or to a potential
violation of a state or federal law involving, in whole or in part, the rights
of disabled electors as provided under section 24. The department shall provide
reimbursement under this subsection only if both of the following requirements
are met:
(a) The costs were incurred by the
local government in response to a notification letter received under section 13
or 24.
(b) The department of state
determines, on request from the local government, that a reasonable plaintiff,
with reasonable investigation before sending the notification letter, would
have known the allegations in the notification letter lacked legal or factual
merit.
(4) Subject to subsection (6), the
amount of reimbursement provided under subsection (1), (2), or (3) must not
exceed $50,000.00. This amount must be adjusted annually by an amount
determined by the state treasurer to reflect the cumulative annual percentage
increase in the United States Consumer Price Index for the immediately
preceding calendar year and rounded to the nearest $100.00 increment.
(5) A request for reimbursement made
by a prospective plaintiff or a local government under subsection (1) or (2)
must be transmitted to the department of state not later than 90 days after the
enactment or implementation of the remedy. A request for reimbursement made by
a local government under subsection (3) must be transmitted to the department
of state not later than 90 days after the local government receives a
determination by the department of state that the allegations in the
notification letter lacked legal or factual merit. The request for
reimbursement must be substantiated with financial documentation, including, as
applicable, detailed invoices for expert analysis and reasonable attorney fees
calculated using a lodestar methodology. The department of state may deny a
request for reimbursement made under subsection (1) or (2) if the remedy was
not necessary to prevent a potential violation of this act. A prospective
plaintiff or local government that does not receive satisfactory reimbursement
within 120 days after the request for reimbursement may file a declaratory
judgment action to obtain a clarification of rights.
(6) A local government may seek
reimbursement only under subsection (2) or (3), not subsections (2) and (3),
regarding a notification letter.
(7) As used in this section,
"United States Consumer Price Index" means the United States Consumer
Price Index for all urban consumers as defined and reported by the United
States Department of Labor, Bureau of Labor Statistics.
Sec. 21. (1) Any individual or entity identified in section 13(6) or
the attorney general may file an action in the circuit court of the county in
which the local government is located or in the court of claims to compel
compliance with and seek an appropriate remedy under this act.
(2) In an action involving a
districting or redistricting plan, any individual with standing to challenge
any single district has standing to challenge the districting or redistricting
plan as a whole.
Sec. 23. (1) In any
action brought in any court under this act or
under the state constitution of 1963, the court has broad authority to order
adequate remedies that are tailored to best mitigate the
violation and are reasonably necessary to remedy the violation.
To the extent a court is choosing between various potential remedies, the court
may consider each of the protections provided in section 5, any impact to how
disruptive the remedies will be to the local government's leadership, the
services provided within the local government, home rule, any local charter or
ordinances, state law, the local government's electors, and other aspects of
the local government's operations, and the extent to which the remedy is
inconsistent with any local charter or ordinance or state law. Subject to
subsection (5), adequate remedies include, but are not limited to, any
of the following:
(a) Drawing new or revised districting or redistricting plans. The court shall specify the election at which the new or
revised districting or redistricting plan will take effect. If needed to give
effect to the new or revised districting or redistricting plan, the court may
shorten or lengthen terms of the current office holders who will be affected by
the new or revised districting or redistricting plan.
(b) Adopting a different method of election, including
adopting a district-based method of election or
alternative method of election, or reasonably increasing the size of the
legislative body.
(c) Adding or changing voting
days or hours.
(d) Adding polling places, early
voting sites, or absent voter ballot drop boxes.
(e) Eliminating staggered elections so that all members of the
legislative body are elected at the same time. To the
extent reasonably possible, in a local government where staggered terms exist,
a remedy under this subdivision may provide for 1 election at which all officers
are elected at the same time, but future elections provide for staggered terms.
(f) Ordering a special election either
on a regular election date as provided under the Michigan election law, 1954 PA
116, MCL 168.1 to 168.992, or on another date if reasonably required to remedy
a violation.
(g) Restoring or adding individuals to a voter registration
list or requiring expanded opportunities for registering
electors and enabling those electors to vote.
(h) Imposing nominal or
compensatory damages.
(i) Subject to this subdivision,
imposing punitive damages in the form of a civil fine. The civil fine must be
deposited into the Michigan voting rights assistance fund created in section
15. When imposing punitive damages, the court shall take into consideration the
severity of the violations, the number of violations, whether the defendant has
previous violations, and any other factors the court considers appropriate. If
the defendant is a local government, the court shall also take into
consideration the number of registered electors in the local government and the
local government's ability to pay the punitive damages. The court shall
provide, in any order requiring payment of punitive damages, an explanation of
why the payment of punitive damages was required and how the court determined
the amount of punitive damages to be paid. The court shall impose punitive
damages under this subdivision only if the court finds any of the following:
(i)
The violation is intentional.
(ii)
If the defendant is a local government, the local government or the officials
in that local government demonstrated a disregard for the voting rights of
qualified electors within the local government's jurisdiction.
(iii)
If the defendant is a local government, when notified of an alleged violation
under section 13(1), the local government failed to take any action required
under section 13.
(iv)
The defendant violated a court order issued under this act, article II of the
state constitution of 1963, or another law applicable to or affecting voting
rights.
(v)
After addressing any violation of this act, article II of the state
constitution of 1963, or another law applicable to or affecting voting rights,
the defendant subsequently violated this act, article II of the state
constitution of 1963, or another law applicable to or affecting voting rights.
(vi)
Punitive damages are otherwise reasonably necessary to ensure compliance with
this act.
(j) Any other form of
declaratory or injunctive relief that, in the court's judgment, is tailored to
address the violation.
(k) Retaining jurisdiction
for a period of time the court considers appropriate.
(2) Except as otherwise provided in
this subsection, in any action in which a court finds a violation of this act,
the federal voting rights act, the state constitution of 1963 concerning the
right to vote for protected class members, the fourteenth amendment of the
United States Constitution concerning the right to vote, the fifteenth
amendment of the United States Constitution, or any other state or federal law
concerning the right to vote for protected class members, in addition to the
remedies available under subsection (1), the court may retain jurisdiction and
require that, for a period of up to 10 years, the local government obtain a
court order before enacting any voting-related policy. When considering this
remedy, the court shall take into consideration the severity of the violation,
whether the violation was intentional, the number of violations, and whether
the local government has any previous violations. A court must retain
jurisdiction for a violation described in this subsection if the court finds
that the violation is susceptible to repetition, the remedy is susceptible to
circumvention, there is evidence of intentional discrimination by the local
government, or the local government failed to adopt broad prophylactic measures
that prevent any future violations. A request for judicial preapproval
submitted to a court under this subsection may be granted only if the court
concludes that the proposed voting-related policy will not diminish, in
relation to the status quo before the enactment or implementation of the
voting-related policy, the equal opportunity or ability of members of a
protected class whose voting rights are implicated by the voting-related policy
and that the proposed voting-related policy is unlikely to violate any of the
provisions of this act. In any request for judicial preapproval, the local
government must indicate the position of each party as to whether the proposed
voting-related policy complies with standards for judicial preapproval as
described in this subsection. The parties may submit a stipulated order for
judicial preapproval for the court's consideration. To the extent a local
government subject to the judicial preapproval procedures under this subsection
must make emergency changes to locations of polling places, early voting sites,
or absent voter ballot drop boxes within 7 days before an election due to
exigent circumstances that are outside of the local government's control, the
local government may implement the emergency changes without first obtaining
judicial preapproval under this subsection, as long as that local government
notifies, in writing, the court and all parties to the action of the emergency
changes before implementing those changes and explains in detail the exigent
circumstances that made the emergency changes necessary. Any party to the
action may request that the court subject emergency changes to the judicial
preapproval process under this subsection. To the extent a local government
intends to maintain any emergency changes beyond that election, the local
government must obtain judicial preapproval for those changes as provided under
this subsection. The local government bears the burden of proof in a proceeding
involving judicial preapproval under this subsection. As used in this
subsection, "voting-related policy" includes, but is not limited to,
any of the following:
(a) Enacting or seeking to
administer any voting qualification or prerequisite to voting.
(b) Enacting or seeking to
administer any standard, practice, or procedure with respect to voting.
(3) In any action brought
under this act or under article II of the state constitution of 1963, the court
may order a remedy only if the remedy will not impair the equal opportunity or ability of protected class
members to participate in the political process and nominate
or elect the protected class members' preferred
candidates.
(4) In any action brought
under this act or under article II of the state constitution of 1963, the court
shall consider remedies proposed by any parties and interested nonparties and
shall not provide deference or priority to a proposed remedy offered by the
defendant or the local government simply because the remedy has been proposed
by the defendant or the local government.
(5) Notwithstanding subsection (1)
and any other provision of law to the contrary, in any action brought
under this act or under article II of the state constitution of 1963, the court
has the authority to order remedies that may be inconsistent with other
provisions of state or local law, when the inconsistent provisions of law would
otherwise preclude the court from ordering an adequate remedy.
(6) In any action brought under this
act, the court may order the parties to enter mediation under MCR 2.411 at any
time during the proceedings.
Sec.
24. (1) Before commencing an action in the circuit court of the county in which
the local government is located seeking the appointment of a monitor of
compliance with the rights of disabled electors for future elections conducted
by that local government, or for another appropriate remedy for a violation of the
rights of disabled electors, a prospective plaintiff must send a notification
letter to the clerk and chief administrative officer of the local government
asserting that the local government may be in violation of a state or federal
law involving, in whole or in part, the rights of disabled electors. The notification
letter must explain in detail each alleged violation and must propose a remedy
for each alleged violation. A disabled elector or an organization whose mission
includes advocating on behalf of disabled electors may be a prospective
plaintiff.
(2) Within 30 days after receiving a
notification letter under subsection (1), the clerk of the local government and
the chief administrative officer or the chief executive officer of the local
government, along with legal counsel or any other individuals the local
government wishes to attend, may meet with the prospective plaintiff and the
prospective plaintiff's representatives to prepare and agree on a plan to
address the alleged violations. If the local government does not meet with the
prospective plaintiff, the prospective plaintiff may immediately file an action
under subsection (4). The plan described in this subsection must be in writing,
be approved by a resolution of the governing body of the local government, and
do all of the following:
(a) Identify each alleged violation
of state or federal law involving, in whole or in part, the rights of disabled
electors by the local government.
(b) Identify a specific remedy for
each alleged violation by the local government or state that the parties agree
no remedy is appropriate for 1 or more of the alleged violations.
(c) Affirm the local government's
intent to enact and implement the remedy.
(d) Establish specific measures that
the local government must take to facilitate any needed approvals to implement
each specific remedy.
(e) Provide a schedule for the necessary
approvals and the implementation of each specific remedy. The schedule must
provide a sufficient amount of time for all needed steps to obtain
authorization for the remedy, including, as necessary, from a court under
section 23(5).
(f) Provide an alternate plan if any
necessary amendments to a state statute or local charter are not approved.
(3) If a prospective plaintiff and
the local government agree on a written plan that complies with subsection (2),
and that written plan is approved by a resolution of the governing body of the
local government, no action may be filed by the prospective plaintiff unless
the local government fails to comply with the requirements of the written plan.
If a prospective plaintiff and the local government do not agree on a written plan
as described under subsection (2) within 60 days of the parties first meeting under
subsection (2), the prospective plaintiff may file an action under subsection
(4).
(4) The attorney general, or any
prospective plaintiff as described in subsection (1), may file an action in the
circuit court of the county in which the local government is located seeking
the appointment of a monitor for future elections conducted by that local
government under any of the following circumstances:
(a) The prospective plaintiff gave
the written notification required under subsection (1) and the local government
did not meet or approve a written plan as provided under subsection (2).
(b) Another party has already
submitted a notification letter under subsection (1) alleging a substantially
similar violation and that party is eligible to bring an action under this
subsection.
(c) Following the party's submission
of a notification letter under subsection (1), the local government failed to
implement a written plan as provided in subsection (2).
(5) For an action filed under
subsection (4), the court shall determine if either of the following occurred:
(a) The local government violated a
state or federal law involving, in whole or in part, the rights of disabled
electors and that violation adversely affected the ability of 1 or more
disabled electors to safely, securely, and privately vote at a polling place or
in another manner legally available to the electors. It is an affirmative
defense to an alleged violation under this subsection that appropriately
located polling places that fully comply with federal or state laws, rules, and
regulations affecting the accessibility of disabled electors are not reasonably
available to the local government despite the local government's reasonable
best efforts to provide those fully compliant polling places, provided that the
local government has implemented other measures that enable disabled electors
to vote in a safe, secure, and private manner.
(b) The local government failed to
fully remedy a previous violation of a state or federal law involving, in whole
or in part, the rights of disabled electors.
(6) If the court determines that
either of the conditions provided under subsection (5) have been met, the court
may order the appointment of a monitor for that local government, at the local
government's expense, for a period of up to 10 years. When considering this
remedy, the court shall take into consideration the severity of the violation,
whether the violation was intentional, the number of violations, and whether
the local government has any previous violations. A court must order a monitor
under this subsection if the court finds that the violation is susceptible to
repetition, the remedy is susceptible to circumvention, there is evidence of
intentional discrimination by the local government, or the local government
failed to adopt broad prophylactic measures to prevent any future violations. If
the court appoints a monitor under this subsection, the monitor's duties
include all of the following:
(a) Investigating all complaints
that are submitted to the circuit court or to the monitor regarding the local
government's compliance with a state or federal law that, in whole or in part,
involves the rights of disabled electors.
(b) If the monitor determines that
any complaint indicates that the local government has violated or will likely
violate a state or federal law that, in whole or in part, involves the rights
of disabled electors, informing the circuit court of the violation or likely
violation.
(c) If the monitor receives a report
of an alleged violation within 40 days before an election, and the report
indicates that a disabled elector is unable to vote because of that alleged
violation, bringing the issue in the report to the circuit court's immediate attention.
(d) Undertaking any investigations
or inspections considered reasonably necessary during the 180 days before any
election administered by the local government to ensure that the local
government is in full compliance with any state or federal law involving, in
whole or in part, the rights of disabled electors.
(e) No less than 90 days before any
election administered by the local government, producing a report to the
circuit court regarding the local government's compliance, anticipated
compliance, or lack of compliance, with any state or federal law involving, in
whole or in part, the rights of disabled electors.
(f) On election day, and during the
early voting period, being available to receive reports by disabled electors,
or any organization representing disabled electors, of any violations of a
state or federal law involving, in whole or in part, the rights of disabled
electors, and bringing any meritorious reports of violations to the circuit
court's immediate attention.
(7) If the circuit court is informed
of a violation or likely violation as provided under subsection (6)(b), the
circuit court shall do both of the following:
(a) Order any and all relief that is
necessary to remedy the violation.
(b) If the circuit court finds that
a violation has already occurred, order a penalty of $1,000.00 payable to an
elector whose state or federal rights were violated if that elector reported
the violation to the monitor.
(8) If the circuit court is informed
of an alleged violation as provided under subsection (6)(c), the circuit court
shall order a hearing on an emergency basis to ensure that the disabled elector
is not disenfranchised. This subsection does not prohibit an elector from
filing a separate lawsuit to enforce state or federal law if the state or
federal law provides that elector with a cause of action.
(9) If the monitor's report required
under subsection (6)(e) indicates any concerns that the local government will
not comply with any state or federal law involving, in whole or in part, the
rights of disabled electors, the circuit court shall hold a hearing to address
those concerns and order any relief the circuit court determines necessary to
ensure the local government's full compliance with state and federal law. The
hearing and any orders resulting from those hearings must occur in sufficient
time before the election to ensure that electors are not disenfranchised.
(10) If the circuit court is
informed of any meritorious reports of violations as provided under subsection
(6)(f), and the circuit court finds that a violation of state or federal law
has likely occurred or is likely occurring, the circuit court shall issue
emergency relief the same day, as necessary, to ensure that the elector is not
disenfranchised.
(11) If a circuit court orders a
remedy under subsection (7), (8), (9), or (10), that remedy must include, if
the circuit court determines that a violation of a state or federal law
involving, in whole or in part, the rights of disabled electors has occurred,
extending the term of the monitor at least through the next election administered
by the local government.
(12) A monitor appointed by a court under
this section must be an individual who meets all of the following requirements:
(a) Has extensive knowledge of and
experience with the rights of disabled individuals.
(b) Has an established history of
advocating on behalf of disabled individuals.
(c) Has significant knowledge
regarding election law.
(13) A monitor shall bill the local
government for the monitor's time on an hourly basis at a rate that is
customary in this state for an individual with the required experience and
qualifications, and that is approved by the court.
(14) As used in this section:
(a) "Disabled elector"
means an elector who has a disability as that term is defined under section 103
of the persons with disabilities civil rights act, 1976 PA 220, MCL 37.1103.
(b) "State or federal law
involving, in whole or in part, the rights of disabled electors" includes,
but is not limited to, any of the following:
(i)
Section 726a of the Michigan election law, 1954 PA 116, MCL 168.726a.
(ii)
The persons with disabilities civil rights act, 1976 PA 220, MCL 37.1101 to
37.1607.
(iii)
The Americans with disabilities act of 1990, Public Law 101-336.
(iv)
The federal voting rights act.
(v)
The voting accessibility for the elderly and handicapped act, 52 USC 20101 to
20107.
(vi)
The national voter registration act of 1993, 52 USC 20501 to 20511.
(vii)
The help America vote act of 2002, 52 USC 20901 to 21145.
Sec. 26. In any action brought under this act, the court
shall award reasonable attorney fees and litigation costs, including expert
witness fees and expenses, to a party that filed the action and prevailed in the action.
The party that filed the action is considered to have prevailed if, as a result
of the action, the party against whom the action was filed has yielded some or
all of the relief sought in the action or the court
has ordered some or all of the relief sought in the action. If the party
against whom the action was filed prevails in the action, the court shall not
award that party any costs unless the court finds the action is frivolous.
Sec. 27. Because of the
frequency of elections, the severe consequences and irreparable harm of holding
elections under unlawful conditions, and the expenditure to defend potentially
unlawful conditions that benefit incumbent officials, actions brought under
this act, section 4 of article II of the state
constitution of 1963, or any other law concerning voting rights or elections
are subject to expedited pretrial and trial proceedings and must receive an
automatic calendar preference. In any action alleging a violation of this act, section 4 of article II of the state constitution of
1963, or any other law concerning voting rights or elections in which a
plaintiff party seeks preliminary relief with respect to an upcoming election,
the court shall grant relief if the court determines that the plaintiffs are
more likely than not to succeed on the merits and it is possible to implement
an adequate remedy before an upcoming primary or
general election that would resolve the alleged violation.
Sec.
28. The secretary of state shall provide guidance to county, city, and township
election officials, and to any other local government officials who have
obligations under this act, regarding the process for implementing this act. In
addition, the secretary of state may provide written guidance to county, city,
and township election officials, and to any other local government officials
who have obligations under this act, concerning the obligations and
responsibilities of those officials under this act that include, but are not
limited to, those obligations and responsibilities after receiving a
notification letter under section 13. Any county, city, or township election
official, or any other local government official who has an obligation under
this act, may request guidance in writing at any time from the secretary of
state concerning the obligations and responsibilities under this act. Any
written request for guidance, and any written guidance issued by the secretary
of state, must be promptly posted on the department of state's website. The
secretary of state shall update the guidance to reflect any amendments to this
act, any updates to voting technology or equipment, or any other changes that
the secretary of state determines are necessary. As used in this section,
"guidance" includes, but is not limited to, clarifying which local
government is responsible for providing the notices required under sections
653c(1) and 653d(1)(a) and (c) of the Michigan election law, 1954 PA 116, MCL
168.653c and 168.653d.
Enacting section 1.
1969 PA 161, MCL 691.1031, is repealed.
Enacting section 2. This act does not take effect
unless all of the following bills of the 103rd Legislature are enacted into
law:
(a)  Senate Bill No. 962.
(b)  Senate Bill No. 963.
(c) Senate Bill No. 964.