September 27, 2023

A state board in Michigan refused on Wednesday to place an abortion rights referendum on the November ballot because of a dispute over word spacing on the petition, an embarrassing blow to abortion rights supporters who had gathered more than 750,000 signatures.

The decision, which came when the Board of State Canvassers deadlocked along party lines, could still be overturned by the courts. But it injected further uncertainty into the fate of abortion in Michigan, a swing state where enforcement of a pre-Roe v. Wade abortion ban has been temporarily blocked by a judge and where many closely watched races are on this year’s ballot.

Tony Daunt, the Republican chair of the canvassing board, said a lack of visible spaces between words on the petitions shown to voters represented “an egregious error.”

Reproductive Freedom for All, a group supporting the amendment, accused the canvassers of disenfranchising voters and vowed to challenge the decision in court. The two Republicans on the board voted against placing the issue on the ballot, while the two Democratic canvassers supported presenting the question to voters.

Abortion rights supporters across the country have turned to referendums as a way to maintain or restore access to the procedure after Roe was overturned in June. Voters in California and Vermont are poised to decide whether to enshrine abortion rights in their state constitutions, while Kentuckians will choose whether to make it clear that there is no state right to an abortion. In Kansas, voters overwhelmingly decided in August to preserve a state-level right to abortion.

Michigan voters seemed likely to have their say, as well, after abortion rights supporters submitted hundreds of thousands more signatures than they needed to put a constitutional amendment to a statewide vote. But questions quickly emerged about the formatting on the petitions, which included no discernible spaces between some words.

Eric Doster, a lawyer for a group that challenged the petitions, told the canvassers on Wednesday that the document “contains nonsense passages, and nonsense cannot be put into the Michigan Constitution.”

Supporters of the amendment insisted that there were indeed spaces between the words and argued that, in any case, it was not the job of the state canvassing board, an appointed group that certifies statewide elections and approves language for ballot proposals, to weigh in on the content of the petitions. “You must ignore the challenges and their fabricated criteria,” said Olivia Flower, a lawyer for supporters of the amendment.

Gov. Gretchen Whitmer and Attorney General Dana Nessel, both Democrats facing re-election races, have made support of abortion rights central to their campaigns.

But unless the Michigan Supreme Court overrules the canvassers, the future of abortion in the state is likely to be determined by a disputed law that was passed in 1931. That measure, which has been blocked by a judge, bans most abortions in Michigan and is unlikely to be repealed by the Republican-controlled Legislature.

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