August 9, 2020
The August 4 primary and the COVID-19 pandemic dominated Michigan news in the last month.
Statewide, there were 87,403 confirmed cases of COVID-19 and 6,250 deaths as of August 8.
Don’t bring COVID home or spread to others unknowingly. Free testing is widely available right now. To find a testing site, go to www.michigan.gov/coronavirus. Or call the hotline at 1-888-535-6136 and press 1.
Safe Start Order Extended — On July 29 Governor Gretchen Whitmer amended her Safe Start Order by issuing Executive Order 2020-160 imposing the same limits on bars and indoor gatherings statewide. This EO puts the northern Michigan regions back under the same 10-person indoor gathering limit as the rest of the state and applies the same dine-in closure for bars in these regions as the rest of the state. Northern Lower Michigan counties and the Upper Peninsula, however, will retain other measures that give them greater freedom of movement than the rest of the state. In those counties, movie theaters and gyms can remain open and the outdoor gathering limit remains 250, 500 for certain performance venues. In the rest of the state movie theaters, gyms, amusement parks, and other mass gathering places remain closed. The EO made an exception for the three Detroit casinos — shuttered since March — to reopen August 5, but only at 15 percent capacity.
State of Emergency Extended — On Friday, August 7 Governor Whitmer extended the state of emergency related to COVID-19 until September 4 in Executive Order 2020-165. She cited cases rising in July — from a rolling seven-day average of about 15 cases per million in mid-June, the low point since the peak last April, to about 50 cases per million in late July. During July there was an increase in positive COVID-19 cases in every region of the state. The statewide positivity rate (number of positive COVID-19 tests compared to the total number of tests given) has increased from 2 percent in mid-June to 3.5 percent in late July. The national positivity rate is 9 percent.
In issuing Executive Order 2020-165, the Governor said:
Employer requirements — Because federal supplemental unemployment benefits of $600 per week ended on July 31 thus creating pressure for workers to return to the job even if they are sick or have other COVID-related concerns, the Governor issued Executive Order 2020-166 on August 7. That order prohibits employers from discharging, disciplining or retaliating against employees who make the decision to stay home because of reasons related to COVID-19. Employers must also treat the employees as if he or she were taking medical leave under the federal Paid Medical Leave Act. If there is no paid leave available for the employee, then the leave may be unpaid.
Long-term care facilities — As of August 3, Michigan has recorded more than 2,000 resident deaths in long-term care facilities from COVID-19 exposure, with around 7,800 positive COVID-19 cases from people residing in long-term care facilities. There have also been 22 deaths of staff members at long-term care facilities and more than 3,700 infected.
Executive Order 2020-148 outlines protections for residents at more than 4,900 long-term care facilities, including nursing homes, homes for the aged, adult foster care facilities and assisted living facilities. The order bars facilities from evicting residents for nonpayment and mandates facilities cancel communal dining and group activities, implement disinfection and sanitation regimens, provide personal protective equipment to employees, inform employees of a COVID-19-positive patient and report presumed positive cases and additional data to their local health departments and the Michigan Department of Health and Human Services (DHHS). Violators of the executive order could face a $500 fine and misdemeanor charge.
The Attorney General’s Health Care Fraud Division receives federal funding to investigate and prosecute alleged abuse and neglect of residents of long-term care facilities, including taking legal actions to address violations of the Executive Order. However, the Division may only act in response to a formal complaint. Formal complaints can be filed with the Attorney General’s office. Call 888-444-3911 for more information.
Legal challenges — The Michigan Supreme court has scheduled oral argument for September 2 on certified questions referred to it by the federal court concerning whether the Governor has authority to issue or renew any executive orders related to COVID-19 and if the Emergency Powers of the Governor Act and the Emergency Management Act both violate the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution. It also ordered the Michigan Court of Appeals to issue a decision in House of Representatives and Senate v Governor (COA Docket No. 353655) by August 21. Oral argument was held in that case on August 4. The Legislature argued the Governor cannot take unilateral action under Michigan’s Constitution; the Governor’s attorney argued that none of the Governor’s actions have prevented the Legislature from passing laws concerning the pandemic.
Initiated Law Petition Circulating — The ballot committee Unlock Michigan is circulating for voter signatures an initiated law to repeal the Emergency Powers of the Governor Act of 1945. It needs more than 340,000 registered valid voter signatures within 180 days to then be presented to the Legislature for approval within 40 days. The Republican majority could then enact it without the Governor’s signature. Unlock Michigan largest contributor, responsible for $660,200 of the $765,024 the group had raised through July 20, is Michigan Citizens for Fiscal Responsibility, a nonprofit that is not required to disclose donors.
Polling — An EPIC-MRA poll conducted in late July for Bridge Magazine found that a slim majority of Michigan voters oppose the effort to limit the emergency powers of the Governor. Eighty percent of Democrats oppose the initiative to limit the governor’s powers, but nearly 3 in 4 Republicans support it, according to the survey. It is also supported by 76 percent of voters with a favorable opinion of GOP President Donald Trump, who has clashed with Whitmer over government responses to the coronavirus pandemic. Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield have signaled support for the petition drive to repeal the Emergency Powers of Governor Act of 1945.
RECORD-BREAKING TURNOUT IN PRIMARY
Despite no statewide competitive candidate races, the August 4 primary still drew over 2.5 million voters, the largest turnout for an August primary in state history, exceeding the 2.2 million voters in the 2018 August primary. Nearly two-thirds (1.6 million) voted absentee, beating the record of 1.27 million in the 2016 November presidential election.
Absentee ballots — The voting law changes adopted by voters in 2018, the COVID-19 pandemic restrictions on large gatherings indoors, sending applications for absentee ballots to all 7.7+ million registered Michigan voters and making the application for absentee ballot available on-line and sent to one’s local clerk all contributed to the high absentee voting turn-out.
More than 10,000 absentee ballots were rejected in the primary. That’s largely because they either reached the clerk’s office after Election Day, they had an insufficient or no signature on the return envelope, they cross-party voted and spoiled their ballot, or other reasons, Secretary of State Benson’s office said. She expects two or three times the number of absentee ballots for the general election on November 3. Slow postal service was reported widely. Everyone needs to ask for absentee ballots early and mail ballots earlier than the permissible deadlines.
Absentee ballots for the general election will be available by mid-September. Candidates will need to start their mailings and robocalling earlier given the electorate’s preference for absentee voting. Late “October surprises” will be less influential than in previous years.
Winners — Democrat incumbent Senator Gary Peters will face Republican John James for the U.S. Senate seat. In the two open Congressional seats, Democrat Hillary Scholten will face Republican Peter Meijer in the 3rd Congressional District formerly held by Justin Amash. It is composed of Calhoun, Ionia, Barry and parts of Kent and Montcalm counties. Democrat Kimberly Bizon will face Republican Lisa McClain in the 10th Congressional District formerly held by Paul Mitchell. It is composed of Huron, Sanilac, Lapeer, St. Clair, and parts of Macomb and Tuscola counties.
In a tightly contested Democratic primary in the 6th Congressional District, State Representative Jon Hoadley won the opportunity to run against incumbent U.S. Representative Fred Upton. Self-funded former Trump administration employee Paul Junge beat three opponents to win the Republican nomination to run against U.S. Elissa Slotkin in the 8th Congressional District composed of Ingham, Livingston, and parts of Oakland counties. Democrat incumbent U.S. Representative Rashida Tlaib won her primary contest against Detroit City Council President Brenda Jones in the the heavily Democratic 13th Congressional District.
State House — All 110 State House seats are up for two-year terms with an off-year for the 4-year termed State Senate. The big question is always which party will get the 56 House seats necessary to become the majority and therefore control the agenda, committees, and the budget. On August 4, all State House incumbents running for re-election won their primaries.
Businessman Shri Thanedar, who ran an unsuccessful bid for governor in the 2018 Democratic primary, prevailed in an eight-way primary race for the open 3rd State House District, which covers a portion of Detroit. Thanedar moved to the district last year from Ann Arbor and spent more than $400,000 on his campaign for the seat, far less than the millions he spent on his gubernatorial run but far more than any other candidates in the primary race. Like 2018, female candidates did very well in their State House races for open seats.
Local millages — Voters approved over 90 percent of local property tax increases to fund public safety, libraries, roads, school infrastructure and other services. Renewals did even better with 98 percent passing. There were 224 proposed property tax increases and 654 proposed renewals on local ballots. Voters said yes to $1.3 billion collectively in revenues.
State employees volunteered — The Governor and Secretary of State sent an urgent email message to state employees on July 30 asking them to take annual leave to serve as election workers at polling places and for managers to approve such requests where possible. Within 24 hours over 200 employees volunteered. Election workers have typically been retirees, many of whom are currently avoiding the potential health hazards of indoor places with strangers for long periods of time such as a polling place.
REDISTRICTING COMMISSION UPDATE
Two hundred semi-finalists from the batch of over 9,000 applicants for the 13 Independent Citizen’s Redistricting Commission positions were drawn in late June. Legislative leaders of both parties were notified of their opportunity to strike 5 names each by July 31. Those 20 names were submitted and removed. The remaining 180 names will face a random draw before September 1, 2020 to produce 4 Democrats, 4 Republicans, and 5 who claim no affiliation with either party to fill the 13 seats. By October 15, 2020 the Commission must convene. From fall 2020 to fall 2021, the Commission meets, hosts town halls and draws maps. Using data from the 2020 federal decennial census and citizen input, the Commission will determine Congressional and state House and Senate district lines no later than November 1, 2021 which will become law Dec. 31, 2021 and take effect prior to the 2022 elections. Michigan is projected to lose one Congressional seat.
Legal challenge — On July 6 U.S. District Judge Janet Neff dismissed a consolidated legal challenge of the Independent Citizens Redistricting Commission (Daunt v Benson and Michigan Republican Party v Benson, USWDM Docket Nos 19-614; 19-669). The lawsuits sought to specifically invalidate the section of the Constitution amendments that exclude partisans or those strongly associated with them from serving on the Commission. That list includes those who have previously run for or held federal, state or local office, lobbyists, legislative employees, officers of a political party and a slate of additional prescribed exclusions.
Whistleblower bill vetoed — SB 686 that would prohibit the state from retaliating against employees for reporting a violation of law passed both chambers unanimously but was vetoed by the Governor on July 8. In her veto letter the Governor explained that she vetoed the bill because laws already prohibit the state from retaliating against whistleblowers. She stated it is a core executive power, entrusted in part to the Governor as head of the executive branch and in part to the Civil Service Commission. The Governor had earlier vetoed sections of boilerplate language in departmental budgets related to whistleblower protections as unconstitutional and unenforceable. The language has been in budget bills since the early 2000s.
CSC actions — At its meeting on July 13, the Civil Service Commission approved a Rule change on a vote of 3 – 1 to end automatic labor union fee withdrawals by payroll deduction for unionized state employees and require annual worker reauthorization for dues and fee deductions beginning in January 2022. The unionized workforce is about 75 percent of state classified employees.
The Office of the State Employer, representing the Governor, and unions testified in opposition to the measure. Attorney General Nessel wrote a letter to the Commission opposing the rule change, saying the stated rationale that the proposed changes are required under recent Michigan and U.S. Supreme Court precedent are inaccurate.
The lone dissenting vote was from Chair Janet McClelland, former State Personnel Director. Several days before the meeting, Progress Michigan called for McClelland’s resignation because she has moved to Illinois. Her term expires December 31, 2022. Commissioner James Barrett’s term expires December 31, 2020, the first opportunity Governor Whitmer will have to appoint someone to the four-member Commission.
Robocalls — Michigan Attorney General Dana Nessel on August 7 announced a settlement agreement requiring a California-based Voice Over Internet Protocol (VoIP) voice service provider, MODOK LLC, to exit the VoIP telecom industry and begin winding down its operations.
This settlement agreement marks the first time a state attorney general has been able to permanently shut down a VoIP service provider and bar its ownership from working in the industry.
The Attorney General’s office used complaints sent to the office by the public to trace illegal robocalls regarding Social Security Administration scams and auto-warranty scams to MODOK LLC, which had allegedly been carrying foreign illegal robocall traffic into the United States and on to Michigan residents. As part of AG Nessel’s Robocall Crackdown Initiative there is an on-line complaint form specific to robocalls complaints.
Nursing homes & COVID-19 — The Governor recently vetoed Senate Bill 956, a Republican-sponsored bill that would have barred the admission of COVID-19-positive individuals from nursing homes. It would have created regional facilities for the housing of COVID-19 patients. The Department of Health and Human Services would have been tasked with operating a central facility in each of the state’s eight health care regions for such patients. It would also have codified some protections for health care workers enacted through executive orders by Ms. Whitmer in recent months in response to the pandemic.
In her veto message, the Governor said “Senate Bill 956 is nothing more than a political game that would relocate vulnerable seniors without any requirement for consent, doctor’s approval, or notification to patients and their families.”
Late Governor William Milliken was remembered as a civil, gentlemanly leader who knew how to work across the aisle to get things done and move the state forward for future generations speakers recalled at a memorial service held at the Kresge Auditorium at Interlochen Center for the Arts on August 6. Governor Gretchen Whitmer, Bill Rustem, a senior policy advisor during Mr. Milliken’s administration, Chuck Stokes with WXZY-TV, reporter and author Jack Lessenberry and others gave memorial remarks at the service which was overseen by Bill Milliken Jr. Governor Milliken died October 18, 2019 at the age of 97.
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