This week, the Michigan Senate Elections Committee passed three bills that would create insurmountable barriers to voting for tens of thousands of qualified voters, especially Black and Brown people and the poor. In doing so, they are blatantly ignoring the unmistakable message sent by Michiganders when they overwhelmingly approved a voting rights amendment to the state Constitution less than three years ago: make elections fair and conduct them in a way that expands access to the ballot box. 

Instead of respecting and honoring the clear intentions expressed by the electorate throughout Michigan, some legislators are using the phantom menace of voter fraud in a flagrant attempt to suppress the vote. It is a desperate ploy to retain power by any means necessary, no matter the damage done to democracy. 

When Michigan voters changed the state Constitution in 2018 to make absentee voting available to every eligible voter and enacted other reforms that increased the number of people able to cast ballots and engage in democracy, they were telling lawmakers voting needs to be expanded, not curtailed. Yet Senate Bills 285, 303, and 304, and a likely ballot initiative strategy, do the opposite of what voters have said they want.  

These three bills will rewrite Michigan’s current ID laws, undoing a system that has successfully served the state for more than a decade by carefully balancing election security and voting access. With no clear security benefit, and no evidence of systemic problems stemming from the current laws, the proposed changes will likely prevent tens of thousands of registered Michiganders from casting ballots. Many other eligible but unregistered voters will be discouraged from participating due to the added costs and administrative burdens these bills would create.  

The bills also run contrary to the text and spirit of the Michigan and federal constitutions, and violate the federal Voting Rights Act.  

All to address fabricated problems that simply do not exist. 

Suppression Efforts Losing in Courts 

Under current law, if a voter has no photo ID when they show up at the polls, they can submit an affidavit, signed under penalty of perjury, attesting to their identity and eligibility. The proposed changes would instead force voters who show up to vote without certain government-issued ID to submit a provisional ballot that will automatically be rejected unless the voter makes a second trip to their local clerk’s office to produce a qualifying ID and additional documentation within several days of the election. All of which is cumbersome and costly, creating unnecessary barriers, especially for low-income people and people without transportation.  

In the 2016 presidential election, where the winning margin in Michigan was fewer than 11,000 votes, more than 18,000 voters relied on the affidavit option to cast their ballots. That alone, combined with the lack of any significant evidence of voter fraud related to affidavit ballots, provides more than enough reason to reject these bills.  

But looking behind the overall numbers shows even deeper problems with these bills.  

An analysis of Michigan voters relying on the affidavit ballot in the November 2016 general election by Dr. Daniel A. Smith, chair of the Department of Political Science at the University of Florida, found that voters living in entirely Black precincts were 16 times more likely to cast an affidavit ballot than voters living in precincts with no Black residents.  

Discrepancies regarding photo IDs explains why: Minority voters in Michigan are about five times more likely to lack access to ID than white voters, according to an academic study of the 2016 presidential election. 

Race isn’t the only factor, however. Mr. Smith’s analysis also reveals a similarly stark picture in terms of income, with roughly half of affidavit ballots cast in precincts with a median household income of $34,680 or less. These bills will disenfranchise Black and lower-income voters at staggeringly disproportionate rates. 

The courts have certainly seen the negative and disparate impact similar laws aimed at suppressing the vote inflict and have acted accordingly. 

In 2016, the federal Fifth Circuit Court of Appeals struck down a similarly strict voter ID law in Texas under Section 2 of the Voting Rights Act. That court found that the Texas law imposed “significant and disparate burdens on the right to vote” and affirmed the district court’s finding that the law had a “stark, racial disparity between those who possess or have access” to a qualifying ID and that the law had “a discriminatory effect on minorities' voting rights.” 

The federal Fourth Circuit Court of Appeals also struck down as unconstitutional a strict voter ID law in North Carolina that targeted Black voters. And just last year, the Missouri Supreme Court also struck down a law that tightened voter ID requirements as violating the Missouri Constitution. 

Will of the People 

As noted above, Michigan voters in 2018 supported in overwhelming numbers an amendment to the state Constitution that provided greater protections to the right to vote both in-person and by absentee that “shall be liberally construed in favor of voters' rights in order to effectuate its purpose.” 

The bills currently being considered not only disregard the desire of voters; they are a dangerous step in the wrong direction. Michigan residents – all of them – deserve much better.  

For those who think a veto by Gov. Gretchen Whitmer is a sturdy firewall protecting the state from these anti-democratic efforts, think again. The speculation from Lansing insiders is that, should these bills fail to become law because of a veto, proponents will launch a ballot referendum that mirrors the current legislation. If they are successful gathering the requisite number of signatures to qualify for the ballot, legislators can jam changes through by preempting the process and voting the measure directly into law, a move that can’t be thwarted by a gubernatorial veto. 

However they aim to achieve their goals, if our legislators choose racist voter-suppression techniques rather than full enfranchisement, we will vindicate voters’ rights in court. The Legislature should preserve taxpayer resources and protect the right to vote by rejecting these bills. More than unnecessary, they are designed to undermine the electoral process for partisan political gain. Everyone who believes in democracy needs to make their opposition heard. 

Tell your Michigan Senator to protect your right to vote.

Trans youth, like all youth, simply want to participate in the activities they love, including athletics. They want to play sports for the same reasons other young people do: to challenge themselves, improve fitness, and be part of a team. Sadly, by imposing a wholesale ban on trans students participating in high school interscholastic athletics consistent with their gender identity, Michigan Senate Bill 218 would discriminate based on transgender status and sex, violating the United States Constitution and Title IX of the Civil Rights Act.   

If it becomes law, this bill would needlessly and illegally deprive some students of the opportunities available to their peers, sending a dangerous message to vulnerable transgender youth that they are not welcome or accepted in their communities.  

One of the glaring problems with SB 218 is that it is based on the badly flawed premise that excluding transgender girls from sports benefits non-transgender girls and women.  In reality, transgender people of all ages have been participating in sports consistent with their gender at all levels for years, including at the Olympics since at least since 2004 and in the NCAA since at least 2011. With close to 20 years of clear policies for inclusion of people who are transgender in women’s events at the highest level of sport around the world, there has been absolutely no categorical dominance by transgender girls and women anywhere. Despite being eligible, no transgender female athlete has ever qualified for, let alone medaled in, a women’s event at the Olympics.  

Athletic success is based on many factors that vary from sport to sport. Trans athletes, like other athletes, do not have a single body type; there is absolutely no merit to the claim that women and girls who are transgender automatically have advantages in sports. In fact, particularly when referring to young people, many trans athletes have physiological characteristics that are typical of peers with their gender identity and not their assigned sex. This means that a girl who is transgender may have more physiological characteristics typical of non-transgender girls than non-transgender boys. Thus, any data purporting to compare the relative athletic abilities typical of non-transgender girls and non-transgender boys simply do not apply to most transgender youth.  

Unlawful Discrimination Against Trans Youth 

The standard set by the U.S. Supreme Court is clear: Parties who seek to defend gender-based and trans status-based government action must demonstrate an “‘exceedingly persuasive justification’ for that action.”  

Under this standard, the high court has determined that “the burden of justification is demanding and it rests entirely on the State.” However, the Michigan Senate has so far has offered no justification for SB 218 except for hypothetical future problems that have not arisen. But under heightened scrutiny that the court has applied, justifications “must be genuine, not hypothesized or invented post hoc in response to litigation.”  

This demanding standard leaves no room for a state to hypothesize harm and impose a categorical exclusion far exceeding anything utilized even at the most elite levels of competition. Applying this standard in Hecox v. Little, the Supreme Court struck down an Idaho law banning women and girls from participating in women’s sports solely because they are transgender, finding the state’s proffered justifications wholly insufficient. 

Likewise, if passed, SB 218 would violate Title IX of the Civil Rights Act of 1964. Title IX protects all students—including students who are transgender—from discrimination based on sex.  Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The overwhelming majority of courts that have considered the issue have held that discrimination against transgender students in schools is prohibited sex discrimination under Title IX. Since the Supreme Court’s decision in Bostock v. Clayton County, Georgia in 2020, two federal appeals courts have affirmed that Title IX’s prohibition on sex discrimination likewise prohibits discrimination against transgender students when accessing single-sex spaces and activities. 

Step in the Wrong Direction 

The Biden-Harris administration has made clear that it intends to enforce federal civil rights statutes, including Title IX, consistent with the Supreme Court’s holding in Bostock, which focused on discrimination against LGBTQ people. This means that, should Michigan pass SB 218 or bills like it that target transgender students for discrimination, the state will not only likely face litigation by private parties but also by the federal government. Such a violation of Title IX will not only cost the state substantially in litigation costs; it will also put the state’s federal education funding at risk.  

Simply put, SB 218 is far out-of-step with prevailing international and national norms of athletic competition, violates the United States Constitution and federal civil rights law, puts Michigan at risk of losing hundreds of millions of dollars in federal funding, and harms transgender youth -- all to solve a problem that does not exist. If you want to help girls’ sports, you don’t do it by attacking transgender youth, who deserve the chance to succeed and thrive like any other student.  

For all these reasons, SB 218 must be voted down. 

Trans student athletes belong on the sports team they identify with. Tell your representative to vote no on Senate Bill 218.