Jan. 21 | This Week in Government: Election Audit Board, Abortion, Wage Petition Summaries OK’d; Varying Avenues Aside, Supreme Court Could Decide Fate Of RedistrictingJanuary 21, 2022
- Election Audit Board, Abortion, Wage Petition Summaries OK’d
- Varying Avenues Aside, Supreme Court Could Decide Fate Of Redistricting
- State Workforce Unchanged As Jobless Rates Decline In December
- Auditor General: No ‘Undercount’ In DHHS Nursing Home Death Data
- EGLE Releases Draft Climate Plan; Environmental Orgs Want More
Election Audit Board, Abortion, Wage Petition Summaries OK’d
The summaries for initiative petitions that would create an audit board to hire contractors to review statewide elections and enshrine the legal right to an abortion in the Constitution were approved by the Board of State Canvassers on Wednesday.
Canvassers also approved a petition summary for an initiative petition to raise the minimum wage.
Under the audit petition, election audit authority would be transferred from the Department of State and county clerks to an audit board of 10 Republican and 10 Democratic delegates selected by the House speaker and minority leader. The audit board would hire a third party to conduct audits of elections. The proposal also would set up a grand jury consisting of seven members of the audit board selected by the speaker and six selected by the minority leader and it could issue arrest warrants for noncompliance and criminal immunity for cooperation.
Audit MI, which is behind the petition, consists of staunch backers of former President Donald Trump who insist – despite no evidence showing substantial fraud – that he actually won the 2020 election. In reality, President Joe Biden won Michigan by 154,000 votes in a result that was canvassed and certified in all 83 counties on bipartisan votes and then backed up by multiple post-election audits.
The group’s goal is to gather the necessary valid signatures from registered voters to bring the proposal before the Republican-controlled Legislature and force the GOP majorities to act.
Attorney Jon Rocha, representing Audit MI, said the group believes in transparent elections and don’t want election counting to be affected by party politics. However, the audit board consists of individuals from the two major parties and excludes those who have no party affiliation or an affiliation with a smaller political party. The language also needed to include the phrase “to review 2020 and subsequent” so voters know if passed, the board could review the 2020 election results.
Vice President of Audit MI Tami Carlone said she and other members of her organization find the proposal and its language fair and nonpartisan. Carlone is the coalition’s vice chair of the Michigan Republican Party.
“You are putting into place the parties to decide and completely eliminating anyone that doesn’t identify as partisan,” Board Member Jeannette Bradshaw (D-Ortonville) said. “If you don’t trust either party as a voter…how are you going to trust them to audit an election?”
Carlone answered the job of the board is not to conduct the audit but rather to hire professionals to conduct the audit.
There was also much debate about what a forensic audit is and how the audit board would be funded. Elections officials have said for a year that there is no such thing as a “forensic audit.” Attorney Mark Brewer from Goodman Acker, a former chair of the Michigan Democratic Party, said to include this phrase in the language would be misleading. He called it circular, saying it is only forensic because the petitioners are calling it forensic. Scott Eldridge, representing the Michigan Democratic Party, called the petition a “sham.”
Funding for the board was also unclear. The 100-word summary simply stated private and public funding would support the board, however the amount of funding remains undefined. The language includes a non-disclosure requirement of private funding sources. Board Vice President Mary Ellen Gurewitz (D-Detroit) asked when taxpayer dollars would be used for the board.
Rocha said the private funding will go to pay for the contractors the audit board will hire and the public funding will pay for the audit the contractors conduct. Details about what triggers the audit is only viewable on the full text of the proposal.
The word “forensic” was deleted from the summary and the board unanimously approved the following:
“Initiation of legislation amending Michigan Election Law to: transfer election audit authority from secretary of state and county clerks to audit board of 10 Republican and 10 Democratic Party delegates selected by House speaker and minority leader; create grand jury of 7 Party delegates selected by speaker and 6 by minority leader; require audit board hire contractors to review, for the 2020 and subsequent statewide elections, protected election materials, equipment, and voters, and disclose findings; allow grand jury to issue subpoenas, arrest warrants for noncompliance, and criminal immunity for cooperation; require audit board raise funding for audit with no disclosure requirement for private funding sources.”
A summary for the Reproductive Freedom for All petition was also approved after much heated debate. Backers of a legal right to an abortion are pursuing the proposal because of the expectation the U.S. Supreme Court will overturn the Roe v. Wade precedent that legalized abortion nationally. If that happens, Michigan’s abortion ban, which dates to 1846, would come back into full force.
The summary language and petition would allow women to obtain an abortion and assure access to birth control and other reproductive care.
Right to Life of Michigan and the Michigan Catholic Conference are opposing the proposal to amend the Constitution to legalize abortion in Michigan law. Attorney Eric Doster representing Citizens to Support MI Women and Children said the board should remove the words “reproductive freedom” because it was not formally defined.
In the proposed version of the summary, the word “including” was used and Doster argued the language should say “is” or “defines.” He also argued the phrase should be deleted altogether because it is prejudicial language.
Board Chair Norm Shinkle (R-Williamston) said he wanted to delay voting on the language for the next meeting, which he said would fall within the deadline. However, Brewer objected, saying Shinkle should treat this summary similarly to the other summaries discussed.
Besides the delay, Board Member Tony Daunt (R-DeWitt) said he disliked the term “reproductive freedom” because he also found it to be prejudicial language, stating in his personal opinion the phrase was the same as inserting in the summary “this will allow people to kill babies.”
“Daunt, that is in the proposal and your job is to summarize the proposal,” Brewer said. Daunt countered him, asking if he was okay with indicating this will lead to the death of innocent children.
“Mr. Daunt… your duty is to summarize the proposal that’s presented to you. Whatever our personal beliefs are in these matters are irrelevant,” Brewer said.
Shinkle at one point said he would like the language to include the proposal “eliminates the right to life for the unborn” and he would not vote in approval of the summary if it did not. The board voted on the language and the summary failed 2-2.
Daunt said he would like to find a compromise and perhaps the summary would pass. During the recess he wrote and submitted his own proposed summary that included the words “so-called” before reproductive. Gurewitz said the words so-called were unacceptable and the summary did a good job of explaining what reproductive freedom is and he agreed to remove those words.
The final summary edited by Elections Director Jonathan Brater passed 3-1, with Shinkle voting no:
“Constitutional Amendment to: establish new individual right to reproductive freedom, including right to make and carry out all decisions about pregnancy, such as prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management, and infertility; allow state to prohibit abortion after fetal viability unless needed to protect a patient’s life or physical or mental health; forbid state discrimination in enforcement of this right; prohibit prosecution of an individual, or a person helping a pregnant individual, for exercising rights established by this amendment; and invalidate all state laws that conflict this amendment.”
Finally, the board also unanimously approved of a summary for a petition that would raise increase the minimum wage to $15 by 2027 on Wednesday.
The petition submitted by Raise the Wage would also increase the wage for employees who receive tips to match the wage of all employees over the next six years. The language was changed to include the urban wage-earners and clerical workers calculation to better adjust to inflation. The phrase disability was also debated being deleted due to stigma concerns. However the board determined the petition was effectively banning employers from discriminating against employees for having a disability and left the language intact. The board approved the following summary:
“Initiation of legislation amending Improved Workforce Opportunity Act 2018, PA 337, MCL 408.932 and 408.934, and adding MCL 408.934e, to: increase the minimum wage to $11/hour in 2023, $12 in 2024, $13 in 2025, $14 in 2026, $15 in 2027, regardless of unemployment rate; in following years, increase minimum wage based on inflation rate for urban wage-earners (CPI-W); adjust over 6 years the minimum employer-paid portion of pay for workers receiving tips until it matches minimum wage for all employees; provide that employees keep tips unless they agree to share them with other non-manager employees; remove state authority to approve lower minimum wage based on determination that minor, apprentice or disability status reduces productivity.”
Michigan’s minimum wage is currently $9.87 per hour and under existing statute schedule to rise to $12.05 per hour by 2030.
The minimum wage and audit proposals need to obtain at last 347,047 valid signatures from registered voters to be brought before the Legislature (the wage proposal presumably would not get support and then go to voters in November). The abortion proposal, as a constitutional amendment, needs at least 425,059 valid petition signatures from registered voters to go on the November ballot.
Varying Avenues Aside, Supreme Court Could Decide Fate Of Redistricting
The Michigan Supreme Court could shape out to be the primary venue for any and all claims made against the Independent Citizens Redistricting Commission and its newly adopted legislative and congressional maps, although several attorneys who practice election law said that the court and its majority of Democratic Party-nominated justices may not be a slam dunk for those challenging the plans.
That includes federal Voting Rights Act challenges or more localized challenges to things like partisan fairness or communities of interest considerations.
Several attorneys knowledgeable in election law spoke with Gongwer News Service for this story under the condition they not be named.
Some of them said that the Michigan Constitution is clear in its grant of original jurisdiction to the state Supreme Court on redistricting matters, so even if a related challenge is proffered in one of the federal district courts – or both – a federal judge could very well defer to the state court to answer those questions, much like it did in 2020 regarding Gov. Gretchen Whitmer’s recurring states of emergency to deal with the coronavirus pandemic.
Similarly, the state’s high court could very well defer to the federal courts and stay any case before them in anticipation of a ruling on federal redistricting challenges brought against the commission’s plans.
But as to how the court might decide these types of cases was anyone’s guess, said Michigan State University law professor John Pirich, a former longtime elections attorney.
“I’m not a fortune teller on this one, I have no idea what the court would do,” he said. “It has no case law or precedent attached to it at this point, in the sense of what the commission did, and whether they violated the standard by not having certain documents or proceedings open to the public (as the court ruled in a separate case unrelated to the final work product).”
Talk of which venue offered potentially the best outcomes for petitioners or how the two court systems might decide those challenges intensified as the ICRC adopted three plans for the state House, state Senate and U.S. House late last year. Speculation grew after Black Democrats filed the first lawsuit against the commission challenging the content of its maps.
While Detroit Caucus, et al v. MICRC is a direct challenge to the way the commission handled federal Voting Rights Act compliance, which is one of the top-ranked criterions in the Michigan Constitution, the state’s Supreme Court can still choose to hear it because federal compliance is baked into the amendment that created the commission.
It could be easy to assume that a group of Democratic Party lawmakers, organizations or voters challenging the commission’s handling of the Detroit districts might have a surer chance of success and a potentially swifter outcome moving through state court – which appears in one step because challenges must be directly filed to the Supreme Court.
The same could be assumed of Republican Party lawmakers, groups or voters seeking to challenge things like unequal population deviations on the maps, macro VRA claims or procedural challenges in federal court.
However, several attorneys said those assumptions may not ring true.
Some said they weren’t ready to assume that the Michigan Supreme Court’s Democratic Party-nominated majority was a surefire bet for a favorable ruling toward groups like the Detroit Caucus – made up entirely of Democrats – nor were they ready to assume that the justices would even take up certain cases as neither the previous (a GOP majority) nor the current bench seem inclined to deal with election issues at all.
Pirich called that expedited filing process an advantage, at least timing-wise, for potential plaintiffs as compared to the previous mode of taking challenges through the various stages of state court. But he was still wary about making predictions due to the lack of applicable case law.
“The old system, or the system that we had, in regard to most election challenges is very different than the constitutional amendment here. (There was) a degree of expertise and experience, everything was fully briefed and argued,” he said. “You then had a record that would go on to, in most cases, the Court of Appeals or could be bypassed to the Supreme Court. Now, it’s a clean slate, and it’s completely different. So, you’re not going to have the body of law that used to accompany these kinds of challenges, especially in redistricting, which is so unique, and so unusual, compared to so many of the other challenges. But both federal and state constitutional issues apply.”
Additionally, the urgency of resolving these kinds of challenges before the looming April filing deadline for candidates for both the Legislature and U.S. House was a reason for Pirich to say he believes the Supreme Court would act more swiftly than the federal courts.
“That is a completely different set of facts and circumstances. … I think the Supreme Court has been incredibly adroit in addressing these questions in a really quick way compared to other challenges historically, especially with regards to redistricting,” he said. “We would have a full panoply of challenges that would take a long period of time, as long as – I’m talking about months and months and months. I think here, they’d be much more expeditious and I think the goal of the of the amendment was to in fact provide that remedy. That if there were going to be challenges, they were going to go right to the Supreme Court and hopefully get them resolved as expeditiously as possible.”
There was also a sense among additional sources that a successful court challenge against the maps advanced by the commission was unlikely, or at the very least ranked low in probability. Some even said they doubted the success of certain challenges as the clock continued to tick closer toward March, when the maps are slated to become law.
Thus, some said they expect the courts to give the commission wider latitude and it would take an exceedingly important question for them to take on a case related to Michigan’s redistricting. That would be especially true for the state Supreme Court considering the commission is an independent body but one that works closely with the Department of State and the Bureau of Elections – both of which are executive branch agencies.
If the commission demonstrates that it has complied with its own standards, based on available data and expert analysis, as well as the precepts of the VRA as prescribed by previous precedent, it may be in a safer spot than some might assume.
Several of those who have followed the process have said that the advice given to the commission regarding the VRA may have been faulty – particularly bits about potentially not needing majority-minority districts because there were few instances of racially polarized voting, or because districts with at least 40-45 percent Black voting age population had enough bloc power to elect minority candidates of choice.
However, some who spoke to Gongwer said that while the commission may have poorly crafted Detroit’s districts, its VRA advice appeared to be sound.
From a GOP perspective, Small Business Association of Michigan President Brian Calley said similarly when asked on a radio program recently if he thought those in rural areas should sue the commission over the way it handled county and township splits.
The former lawmaker and lieutenant governor said that just because the maps were “bad,” it didn’t make them illegal, falling in line with the sentiment shared by some attorneys watching the process or contemplating litigation of their own.
Aiding the commission in its legal challenges is the fact that the body had done a great deal of bullet-proofing its decisions and has been writing those decisions down as they go to track compliance. That written record is by law to be turned over to the Department of State as a report once its work is officially over; or rather, when the maps become law and all legal disputes are settled.
That’s not to say that the commission hasn’t found itself in a trap of its own making before the Supreme Court, as the court has twice dinged the commission on procedural grounds, some attorneys noted.
The commission had asked the court this past spring to consider extending its constitutional deadlines because it feared it would not meet them due to unexpected U.S. Census data delays. The ask occurred around the same time when a litigant from Detroit sued the commission over the delays and to hold them accountable seeing as there was a real possibility that it would blow those deadlines.
The court in that instance declined to do so, noting that it had not yet crossed that threshold and that it wasn’t ripe as a matter of law. It also threw out the associated lawsuit. The commission did, however, blow their deadlines and was not sued.
In a second showing before the state’s highest court, the commission lost in a lawsuit brought by three newspapers and the Michigan Press Association that sought the release several memoranda kept private under attorney-client privilege. The court in that case ruled 4-3 to disclose the materials and a closed session minutes record tape because the majority ruled that the closed session should not have been held.
As to the court’s Democratic Party-nominated majority either helping or hurting those who file challenges, some attorneys said the perception could be deceiving and was far more complicated. Some cited that fact that Michigan’s highest court has a tradition of staying out of the state’s political squabbles – with a few exceptions, like the COVID-19 executive powers fight that played out in 2020, and the question of whether the constitutional amendment creating the commission should go on the ballot in 2018.
With politics out of the equation, a successful case, some said, would be one that could prove irrefutably that the commission violated the VRA and federal law on equal population standards, as well as other constitutional criteria. In turn, the commission could be successful if it presented a good-faith argument that they did their best to balance the at times conflicting constitutional criteria.
The former appears to be the more difficult one to make because of the way the criteria was written, especially if an argument alludes that the commission should have acted differently than it did.
The court has not granted oral arguments yet in Detroit Caucus, but they have asked for a reply brief, which was filed late Tuesday and made public on Wednesday. An aspect of the commission’s argument rests on the fact that the caucus has been unable to meet the three-tiered thresholds of vote dilution related to the commission’s maps.
Whether the court issues a swift and decisive ruling – and one that would override its deference to typically decline rulings of this nature – would also depend on whether a plaintiff of plaintiffs can demonstrate that there was a better way to redraw the maps.
That too could be difficult, but that effort may be aided by the glut of community-submitted maps that the commission used as a reference but had not adopted outright, citing issues with those maps and a feeling that they weren’t much better on the metrics than the commission’s collaborative maps.
In Detroit Caucus, the plaintiffs said the commission could have done a better job but provided no alternative direction, a point the commission makes in its reply brief.
That said, Republicans might also have cause to be wary of seeking challenges in state court because the remedy could be a redraw that would make them worse for the parties than they are now.
FEDERAL COURT CHALLENGES COULD FURTHER GUM UP THE PROCESS: The same cannot be said necessarily of the federal courts, which has a heavier GOP slant as it goes up the appellate chain, not only in the U.S. circuits but also on the U.S. Supreme Court – which are now stacked with appointees of former President Donald Trump.
Democrats could be wary to seek challenges in that venue because they might fear a partisan decision, one that could sink their claims, some attorneys said. They could also be concerned that the federal VRA is enforced by the U.S. Department of Justice, helmed by U.S. Attorney General Merrick Garland and overseen by Democratic President Joe Biden.
It could be difficult to convince the federal agency that the commission didn’t do its best to comply with the federal statute in a case where it appears there was no outright race-based political reason to crack or pack Detroit’s districts, some said. Others added that they haven’t seen anything in the commission’s work that would imply that it did so, either.
Conversely, the GOP might find itself in a better situation in federal court depending on the nature of the claim.
A redistricting lawsuit alleging a constitutional violation does not follow the usual system of discovery, briefs and potential trial at the district court level. Instead, the district judge receiving the case would then alert the 6th U.S. Circuit Court of Appeals, whose chief judge would appoint two other judges to a three-judge panel. When Democrats filed a challenge a few years ago, the chief judge was nominated to the bench by a Democratic president, and Democrats got a favorable panel.
Now, however, the chief judge was nominated by Republican former President George W. Bush. And if the Republican plaintiffs file in the Western District, as one would assume, they have a high likelihood of the assigned judge having been nominated by a Republican with only one Democratic judge in the district.
However, a lawsuit specific to the U.S. Voting Rights Act would go through the standard process. The challenge for Republicans would be that any such allegation would involve how the maps were drawn in southeast Michigan and that means filing in the Eastern District, where far more judges were nominated by Democratic presidents.
If such a lawsuit delayed a remedy close or up to the April filing deadline – assuming the Michigan Supreme Court hadn’t already ruled on a map-based challenge, kicked the maps back to the commission and extended to the deadline to May, for example – some said that a 6th Circuit panel could order that the old maps to be used in the 2022 election.
The likelihood of the GOP raising a VRA challenge is uncertain, however, as some thought it could be viewed skeptically by the courts. One Republican source said the topic is under debate in the party. There’s also the matter of standing.
In some cases, a federal judge could refer certified questions to the state Supreme Court to answer a question it may have initially passed on, setting the record in both state and federal court by proxy.
Pirich said such was the case in 2020 when the Supreme Court gutted Ms. Whitmer’s ability to unilaterally keep Michigan under a state of emergency related to COVID-19. The case emerged before Michigan’s justices from questions sent by U.S. District Judge Paul Maloney of the Western District.
“That’s overlaid again, with the federal Voting Rights Act issues. I just don’t know if anyone can predict the outcome of what would happen with those kinds of challenges,” he said. “I think we’re in new territory completely in regard to what would happen and when it would happen, or how what would happen.”
State Workforce Unchanged As Jobless Rates Decline In December
There was little change in the state’s workforce during the month of December as the seasonally adjusted jobless rate fell to 5.6 percent, the Department of Technology, Management and Budget said Thursday.
The number of those employed increased by 16,000 while the total unemployed decreased by 15,000. Total nonfarm employment increased by 11,000 for a statewide job total of 4.25 million.
“Labor market conditions in Michigan showed clear improvement in 2021,” Wayne Rourke, associate director of the Bureau of Labor Market Information and Strategic Initiatives, said in a statement. “The unemployment rate fell sharply over the year, and payroll jobs rose steadily throughout 2021.”
On the national side, the jobless rate went down significantly by three-tenths of percentage point to 3.9 percent. During the year, the reduction in the national and state jobless rate were similar: 2.8 percentage points nationally and 2.6 percentage points in Michigan.
The state’s workforce, though, decreased by 2 percent in 2021 while it increased by 1 percent nationally. The state’s unemployment rate remains two points higher than the February 2020 rate.
The Detroit area’s seasonally adjusted unemployment rate declined by 0.3 percentage point to 5.2 percent in December. Employment in the Detroit area rose by 15,000, while unemployment moved down by 6,000. The region’s labor force increased by 9,000 over the month.
Additionally, the area’s jobless rate dropped by 5.1 percentage points over the year. Employment advanced by 66,000 since December 2020.
Total payroll jobs advanced by 220,000, or 5.5 percent, during the year. However, total employment in December was 205,000 below the February 2020 pre-pandemic level.
The statewide leisure and hospitality industry exhibited the largest job reduction in December – down by 4,000 – as jobs declined in accommodation and food services. During the year, though, leisure and hospitality saw the largest job gains at 101,000.
However, this industry also accounted for nearly 30 percent of the jobs lost in the state since February 2020.
Still, Gov. Gretchen Whitmer in a statement praised the figures released Thursday, focusing on the eight consecutive month of job growth.
“I will work with anyone as we continue putting Michiganders first, getting more Michiganders back to work, and growing Michigan’s economy,” she said.
Auditor General: No ‘Undercount’ In DHHS Nursing Home Death Data
Despite the continued efforts of Republicans to paint the Whitmer administration and Department of Health and Human Services as deliberately underreporting COVID-19 deaths in care facilities across the state, Office of Auditor General personnel Thursday rebuffed that claim.
All week, Republicans have claimed the auditor report saying its staff found 2,386 more deaths at long-term facilities than DHHS was proof of a conspiracy by the Whitmer administration to downplay the number of deaths at nursing homes. In fact, the report drew no such conclusion, and the comments of Auditor General Doug Ringler at a committee hearing Thursday refuted those claims.
During a nearly four-hour joint meeting of the House Oversight Committee and the Senate Oversight Committee on Thursday, Ringler noted certain long-term care facilities were not required to report death data to DHHS.
“For the long-term care facility related deaths, or linked deaths, we know that the department wasn’t tracking all of the ones that we’ve reflected in our letter,” Ringler said. “We didn’t feel the word ‘underreport’ was fair. So, we cited it as a difference.”
The report Ringler cited was released by his agency this month and pertained to the number of care facility deaths during the COVID-19 pandemic being higher than what DHHS has reported. The OAG found that 2,386 deaths were not tallied when the DHHS reported COVID-19 fatalities in long-term care facilities.
That final OAG tally, gathered between when the pandemic began and July 2, 2021, stands at 8,061 deaths. The DHHS reported 5,675 deaths.
The difference is that DHHS did not include deaths at facilities not required to report to them and that auditors used different data systems to tally numbers than what DHHS used.
DHHS Director Elizabeth Hertel has maintained since the release of the report her agency has not concealed or altered the number of deaths at these facilities, instead saying the difference is owed to reviewing homes not required to report information and disputed methodology.
Auditors were also unable to analyze which deaths were specific to facilities where residents were transferred to a hub, a Whitmer administration policy from early in the pandemic Republicans criticized.
Among the points of contention between the OAG and DHHS is regarding long-term care facilities not required to report death information to Hertel’s agency, which includes adult foster care facilities licensed for 12 or fewer beds, exempt homes for the aged and hospice-only skilled nursing facilities. Between those entities lay 1,051 deaths, as indicated in the OAG’s report.
The DHHS did take some heat, though, from Ringler, who later in the committee hearing defended the OAG’s work from previous allegations by Hertel that it was somehow politically motivated. The auditor general is appointed by the Legislature, which is controlled by Republicans. The nursing home controversy has prompted some Democratic grumbling about the auditor’s report though historically audit reports have been seen as nonpartisan in nature.
“We did an analysis in black and white,” he said. “We have identified what it is we did. We identified the plusses of our work. We identified some of the warts that existed from trying to do data analytics – it’s right there, in black and white. We said what we mean, and we mean what we said. I guess I don’t know what else to say.”
It’s here that Republicans have latched on, in an effort to liken Michigan’s nursing home COVID-19 fatalities to the cover-up attempted in New York under former Governor Andrew Cuomo even though no evidence has surfaced to suggest anything in Michigan like what happened in New York where gubernatorial staff intervened to downplay that state’s nursing home death data, leading to a brief but since ended federal investigation.
That juxtaposition was brought up once again during Thursday’s hearing, with Republican senators and representatives pushing hard on Hertel for the actions her department took under EO 2020-50. Some on the panel even outright insinuated that the administration and DHHS killed thousands of elderly Michiganders from the outset of the pandemic.
Though ex-DHHS Director Robert Gordon oversaw the agency when the order was implemented, which lawmakers did acknowledge, they also questioned Hertel on whether she made an effort to call out the order as bad policy to which she said she was not working on that policy at the time.
That short lived executive order, among other things, explicitly calls for nursing homes to admit of residents positive for COVID-19 only if they could safely be isolated in one of the building’s wings with other proper safety procedures. The order was quickly amended and DHHS has said it was never fully implemented. Whitmer has said no nursing home was forced to take a COVID-19 patient.
Rep. Steve Johnson (R-Wayland), chair of the House committee, told reporters following the hearing that despite Mr. Ringler’s comments, he stood by his statement “that what the DHHS provided to us was an undercount.”
“The auditor general, they’re not political. They’re trying to stay out of a political fight here,” he said. “So, he was trying to be very careful in parsing his words. I get what he’s doing. … But if you look at what happened, the administration provided numbers that they knew didn’t include everything. And when we said ‘hey, how many nursing home deaths are there?’ That’s what they provided. They acted like, ‘well, that’s everything,’ even though they knew it wasn’t. It was misleading. Not saying they lied to anyone, but they definitely mislead.”
Hertel, for her part, did try to steer clear of many of the committee’s politically charged questions though again reiterated she felt the OAG report purposefully publishing misleading information. Her issue was with the scope of the data, which Ms. Hertel again said was wider and broader than what the DHHS was meant to collect and provide.
She also again reiterated that the DHHS “never placed COVID positive patients in a nursing home,” a point which the agency and Whitmer administration have upheld when defending EO 2020-50 as something that was rescinded before going into full effect. Stakeholders in the industry, including Health Care Association of Michigan President Melissa Samuel, have also stood by this as a truthful assessment.
That sparked incredulity from Republican lawmakers, some of whom said they had directly spoken to staff at care facilities who said they had.
Johnson was particularly adamant that even if the department never outright forced COVID-positive patients into nursing homes, then the existence of the executive order would have by way of fear.
“I know you guys said, ‘oh, we never enforced it,’ … people thought you were going to enforce it,” he said. “They’re worried about losing their license. They’re worried about a misdemeanor. So, they hear Executive Order 50, ‘it says it applies to me, I’ve got to follow it.’ We know this happened in facilities.”
Hertel, though, said that based on her knowledge of how the DHHS did work with facilities on the policy itself, the agency followed the science and “did provide the resources that they needed.”
“(What) we need to do is ensure that facilities are caring for patients and particularly the medically frail patients have the resources that they need to properly control for infectious diseases,” she said. “And that is the purpose of working with facilities: To make sure that they can safely take residents back and care for them at the facility that is most appropriate for them.”
Her remarks also continuously emphasized that she felt the OAG report utilized the wrong forms of databases in determining a final death count in these care facilities, telling the panels that one of her biggest issues was that definitions within the report “do not align with federal and state statutory and regulatory requirements, and appear to have no basis in these, or any other, standards.”
It was at this point lawmakers, notably Sen. Lana Theis (R-Brighton) and Rep. Michele Hoitenga (R-Manton), took a swipe at the DHHS for failing to take ownership of EO 2020-50’s implementation or the harm they said it caused elderly Michiganders and their families.
“This was bad policy,” Hoitenga said. “And everybody knew it on both sides of the aisle, and we just kept going down that bad road.”
The hearing marked a clear and sharp partisan divide, with remarks from Democratic lawmakers looking to defend the DHHS’s reporting while critiquing the OAG’s efforts as remarks from Republican lawmakers sought to do the opposite.
That was true outside of the committee as well.
“Whitmer’s orders to place COVID positive patients in nursing homes essentially became a state ordered death,” Gustavo Portela, communications director for the Michigan Republican Party, said in a statement. “This administration underreported 2,400 deaths in long term care facilities. What else could they be hiding? One thing is for sure – this governor has blood on her hands and she must be investigated for incompetence and gross negligence for willingly putting some of the most vulnerable people in danger.”
But the party provided no evidence to back up this unsupported claim – and there is no evidence that the Whitmer administration’s policies led to the deaths of individuals in nursing homes or long-term care facilities, nor has any proof been brought forward to confirm such.
A constellation of Republican organizations, however, has pounded Whitmer on similar claims this week, suggesting a coordinated political strategy on the issue.
Michigan Democratic Party Chair Lavora Barns, naturally, issued an opposing statement where she called Johnson a liar looking to “push his baseless, political narrative.”
“Steve Johnson is twisting the report’s findings … instead of accepting the auditor general’s conclusion – that Michigan ‘accurately posted’ COVID-19 deaths as reported directly from facilities,” Barnes said. “Johnson is wasting tax dollars and exploiting the lives lost and families devastated, all to promote a dishonest, partisan narrative that ignores the real transparency of a full audit, relying instead on a political ‘review.'”
Democrats, however, have offered no evidence that politics infiltrated the Office of the Auditor General’s work.
EGLE Releases Draft Climate Plan; Environmental Orgs Want More
The draft of the MI Healthy Climate Plan to address climate change and achieve Gov. Gretchen Whitmer’s 100 percent carbon neutrality goal by 2050 was released last week by the Department of Environment, Great Lakes and Energy, but environmental groups say the proposed goals are not enough.
The draft composed by EGLE’s MI Air MI Health collaborative also strives to reduce greenhouse gas emissions from 2005 levels by 28 percent in 2025 and 52 percent in 2030.
EGLE Director Liesl Clark wrote in a letter the proposed changes present Michigan with the chance to advance equity, create good paying jobs, increase economic competitiveness and improve the quality of life by protecting air quality and the Great Lakes.
The plan will focus on reducing greenhouse gas emissions in transportation, electricity, industry, agriculture and commercial and residential buildings. It listed transportation as the biggest contributor to emissions making up 27 percent of the state’s emissions, with electricity generation also at 27 percent.
For energy production, the department wants to take a holistic statewide energy planning approach, including consideration of new and emerging resources. State-owned facilities would use 100 percent in-state renewable energy by 2025 and reduce energy intensity in state facilities 40 percent by 2040.
Electric vehicles are a main focal point of the draft as well. EGLE is aiming to build the infrastructure to support two million electric vehicles by 2030 and should include at least 50 percent of light duty vehicle sales, 30 percent of medium-duty and heavy-duty vehicle sales and 100 percent of public transit vehicles and school bus sales.
Businesses and homes would be encouraged to adopt a 2 percent energy waste reduction target for electricity and 1 percent for natural gas. The department would also explore programs and funding opportunities to help families and small businesses invest in clean energy projects such as weatherization, renewables and building decarbonization.
Public comment on the plan is now open and in addition to their own statements, many environmental advocacy groups are encouraging others to comment as well. The Michigan Climate Action Network recommended closing all coal plants by 2035 and setting a goal to reach 50 percent renewable energy by 2030. The group also requests sections of the plan need strengthening, especially when looking to decarbonize buildings. It suggests including stronger energy efficiency standards for gas and a plan to transition to electric heat pumps.
“This draft Climate Plan is a good start for our state toward a stable climate, but it needs improvements if we are to achieve the ambitious and necessary goal for Michigan to be carbon neutral,” Michigan Climate Action Network Executive Director Kate Madigan said in a statement. “This decade is a critical time to keep the climate impacts we are now seeing from getting much worse. We urge people to make public comment urging the state to strengthen this plan to ensure Michigan is on track to fully decarbonize.”
Elizabeth Del Buono, a physician advocate for the Michigan Clinicians for Climate Action, said similar sentiments to Ms. Madigan in a statement. Del Buono also called the draft plan a good starting point but said it should be improved before a final recommendation is made to Whitmer.
“In order to ensure that we achieve the emissions reductions necessary to protect the health of all Michiganders, we strongly encourage a more rapid transition to clean, renewable energy, including explicitly stated increasing, renewable energy goals for Michigan utilities,” Del Buono said.
The clinicians recommended the plan devote resources to better infrastructure and respond to extreme weather events. In 2020 and 2021 several regions of Michigan experienced heavy rainfall resulting in historic flooding which closed sections of I-94 in Southeast Michigan. The plan states roughly $800 million is needed to fully upgrade water and sewer infrastructure systems, but there is little mention of how to improve weatherization.
Charles Griffith, Climate and Energy Program director for the Ecology Center, praised the electric vehicle recommendations, but also said the plan will need much follow-through.
“It’s a tall task, but absolutely essential if we hope to avoid the worst impacts of climate change, as well as reduce other sources of dangerous pollution in our air and water while creating thousands of new advanced automotive and clean energy jobs,” Griffith said in a statement.
Laura Sherman, president of the Michigan Energy Innovation Business Council, recommended in a statement the final plan prioritize investments in electrifying transportation and building sectors.
“This will help attract more businesses to the state, ensuring Michigan is competitive for thousands of good-paying advanced energy jobs for hard-working Michiganders,” Sherman said. “Today’s draft plan is a critical step for Michigan’s future, and we look forward to working with the administration, the Legislature and other key stakeholders to improve the report and implement the final recommendations.”