Font affront

Why the type size issue isn't the real point of the battle over the state’s emergency manager law.

Aug 1, 2012 at 12:00 am

At first, we here at the Hits thought a right-wing attempt to keep the proposed emergency manager referendum from being placed on the November ballot was merely a contemptible and desperate attempt to thwart the democratic process.

After listening to oral arguments at the Michigan Supreme Court last week, though, it became clear to us how completely bizarre this dispute over font size really is.

We have Chief Justice Robert Young Jr. to thank for that.

Here's the issue the court is being asked to decide:

Opponents of the state's emergency manager law circulated petitions in an attempt to have voters determine whether the controversial statute should remain in effect. With union backing, volunteers for the Stand Up for Democracy coalition collected more than 218,000 signatures — far more than the some 161,000 needed to qualify for the ballot.

But when the measure went before the state Board of Canvassers for approval, a group calling itself Citizens for Fiscal Responsibility raised objections. Headed by Bob LaBrant, who formerly led fundraising efforts for the Michigan Chamber of Commerce's political action committee, the group challenged the measure on a number of fronts. It was like throwing spaghetti at the wall, with only one strand sticking.

The group claimed that the type size of the petition's heading didn't meet the required 14 points. The Board of Canvassers split 2-2 along party lines, with Republicans agreeing. The deadlock prevented the measure from being placed on the ballot.

Stand Up for Democracy took its case to the Michigan Court of Appeals, where a three-judge panel agreed with the claim that the type didn't meet the required size, but that established precedent was that a proposed measure needed only to be in "substantial compliance" with the law to qualify for the ballot.

In making that ruling, the court was saying, in essence, if it's a close call, the best course in a democracy is to let the people have their say. That philosophy was upheld by a majority of the 28 judges on the Court of Appeals, who, as part of this case, were asked if they wanted to re-examine that precedent and said no.

After the COA ruling came down and the Board of Canvassers was ordered to place the emergency manager measure on the ballot, Citizens for Fiscal Responsibility asked the state Supreme Court to weigh in on the case.

Last week, the high court heard oral arguments that were unusual in two respects. First was the timing. As Chief Justice Young pointed out at the outset of proceedings, it's rare for the court to hear such arguments in July. The fact that the court convened as it did is an indicator of just how serious this issue is, Young noted.

But it's also rare for the court to listen to oral arguments before deciding whether it actually wants to accept a case. Under normal circumstances, attorneys would submit briefs and the court would decide whether to accept or reject a case. 

However, as pointed out by Melvin "Butch" Hollowell, an attorney for the Detroit branch of the NAACP and one of the team of lawyers representing Stand Up for Democracy, there's nothing about this case that's usual.

It is, though, a case with far-reaching implications.

Hollowell tells us that he met recently with staff at the state Bureau of Elections to examine both petitions previously approved by the Board of Canvassers, as well as six other proposed measures currently awaiting approval for the November ballot.

None, he says, pass muster using the measurement method employed by Citizens for Fiscal Responsibility. 

So, if the emergency manager measure is knocked off the ballot, all hell could break loose. It won't be just the people who signed their names to Stand Up for Democracy petitions getting disenfranchised. Instead, everyone who signed any of the seven measures seeking approval of the Board of Canvassers could be told that democracy doesn't apply to them.

What makes this all particularly mind-boggling is the claim Chief Justice Young made during last week's oral arguments in a courtroom packed with people who came by bus from points around the state.

Holding up a piece of paper containing an illustration of a printer's block, Young argued that, essentially, the way of measuring typeface when the current law was created back in the 1950s is no longer relevant.

As he explained it, type isn't measured by taking a ruler to a particular letter as it appears on the printed page — the method attorneys for Citizens for Fiscal Responsibility say should be used.

This is where things get buried in arcana. 

Traditionally, explained Young, measurements are based on the size of the printer's block used to hold various pieces of moveable type. That's because such blocks, which differ based on the size of type specified for a particular job, had to accommodate letters ranging from the top of a capital A to the lowest point of lower-case letters such as g or j.

In other words, you can't put a ruler to any one letter to determine its size. Instead, the proper thing to do is measure the block those letters were placed in. That's just the way printers did it back in the days before the whole process became computerized.

"It strikes me that there is a lot of uncertainty here," said Young.

If the current dispute had occurred back in the 1950s, when the law was written, it could have been settled definitively by having the printer bring in the block used, and it could be measured. 

But now that fonts are computer-generated, and printer's blocks have gone the way of buggy whips, what's the court supposed to do?

That's the dilemma the chief justice says the court is dealing with.

But it's really a false dilemma.

Attorneys for Stand Up for Democracy — a team that includes lawyers representing the left-leaning Sugar Law Center and National Lawyers Guild along with the NAACP and organized labor — contend that, based on the computer software used to create the petition, the group has met the 14-point requirement. Beyond that, though, is established precedent that says as long as a proposed ballot measure is in "substantial compliance" with the law, then it should be allowed to go before voters so that they can have their say.

As Justice Stephen J. Markman pointed out during oral arguments, "We have been living, more or less, in a substantial compliance world since 2001 at least."

Why, he asked, is it fair to change the rules now?

Good question.

Which brings us to the true heart of this matter.

Stand Up for Democracy lead attorney Herbert Sanders, in summing up his side's position in all this, told the court that this isn't really about the law. Instead, he said, it's a matter of philosophy.

Do we want this to be a state where people clearly have the ability to overturn laws passed by the Legislature, or do we want this to be a place where access to the ballot is filled with hurdles, and a dispute over something that amounts to no more than the thickness of a single dime can be used to stifle democracy?

In response to that, Citizens for Fiscal Responsibility attorney John Pirich argued that the case isn't about philosophy at all, but rather "is about the law, plain and simple."

"You suffer the consequences if you don't comply with the law," he told the court.

Interestingly, as Justice Michael F. Cavanagh points out, Pirich was arguing out of the other side of his mouth a decade ago. Cavanagh read into the record Pirich's passionate and articulate argument that nitpicky technical deficiencies shouldn't be used to deny people the right to vote.

How did Pirich explain the 180-degree turn away from that position? With the attorney seeming to be momentarily stunned by the question, Chief Justice Young leapt in (oddly, it seemed to us) providing an answer: 

"Different day, different client," he offered helpfully, as some in the courtroom chuckled.

But this isn't a joke.

Fundamental principles of democracy are at stake here.

It doesn't get any more serious than that.



News Hits is written by Curt Guyette. Contact the column at 313-202-8004.