A bill to force Jill Stein to cover all the costs of recounting Michigan votes for president in the Nov. 8 election is "clearly" unconstitutional, says Mark Brewer, a lawyer who is past chairman of the Michigan Democratic Party.
"You can't constitutionally change the law for a process that already is under way," Brewer said Tuesday shortly after the Michigan House Elections Committee approved HB 6097.
Two law professors and a Kalamazoo lawyer interviewed by MLive on Tuesday all agreed with Brewer.
"Bottom line, I think there is a constitutional argument to be made" that changing the law and making it retroactive would be violation of Stein's due-process rights, said Anastase Markou, an attorney for Levine & Levine in Kalamazoo who researched the issue.
Robert Sedler, a constitutional law professor at Wayne State University, said both the federal and state constitutions prohibit retroactively changing a process that involves "substantive" rights.
The law allowed for Stein to pay a specific fee for the recount, and now that the recount is under way, it's unfair -- and unconstitutional -- to change that, Sedler said.
The issue is clear enough, Sedler said, that "I can't picture it happening or the governor signing such a bill."
Under current law, any candidate on the ballot can file for a recount but must pay a fee. If the candidate seeking the recount lost by more than 0.5 percent, the fee is $125 per precinct. In a closer election, the fee is $25 per precinct.
Under HB 6097, a statewide or federal candidate that lost by more than 5 percent must pay the entire actual cost of a recount, and the change would be retroactive to the beginning of 2016.
House Elections Committee Chair Lisa Lyons, R-Alto, introduced the bill last week, and the Elections Committee approved it Tuesday morning along party lines.
At Tuesday's committee hearing, Lyons said she wants to "protect taxpayers from frivolous recounts."
A recount of Michigan's vote in the Nov. 8 presidential election began Monday. Stein, the Green Party's presidential candidate, is paying a required fee of $973,250, but Michigan Secretary of State Ruth Johnson has said the actual cost could be $2 million or more. At a Tuesday press conference, Michigan Attorney General Bill Schuette pegged the cost at $5 to $6 million.
House Speaker Kevin Cotter, R-Mt. Pleasant, acknowledged Tuesday that concerns have been raised about the retroactive aspect of the bill.
"I'm going to spend some time with that and we need to make sure we're on a sound legal footing," he said. "I would love nothing more than to get to that conclusion. If we can do it legally I would love nothing more than to require candidate Stein to pay for the actual cost."
Lyons said she "absolutely" thinks the bill meets constitutional standards, saying any candidate can still request a recount, "and that is critical."
"What it does it changes the procedure by which the recount is administered," she said. "I think we have strong legal basis for it."
Brewer countered the law and court rulings are "very clear" that such a retroactive change in the procedures is not permitted.
Mae Kuykendall, a law professor at Michigan State University, said federal law gives the states considerable leeway to operate elections.
"And, further, the retroactive nature of the law may not be fatal to its constitutionality because no individual right to vote is adversely affected. The individual asking for the recount is not adversely affected in her individual capacity, since she has no chance of prevailing," Kuykendall said.
However, she said, "I think everybody is overlooking contract law."
A "strong argument" can be made that the state had a standing offer to allow a recount if a candidate paid the appropriate fee, which Stein has done, and the payment of that fee means that the state has entered into a contract with Stein, Kuykendall said.
Article I, section 10, clause 1 of the U.S. Constitution prohibits states from retroactively impairing contract rights.
"You don't welsh on contracts" under the federal law, Kuykendall said. "That's an oversimplification, but there's truth in that."
Markou and Sedler agreed that contract law might be used to argue against the bill's legality.
"There's a credible argument to be made that money was paid and received and thus a contract was made," Markou said.
But the stronger case against the bill is the potential violation of Stein's due-process rights, they said.
The current law "creates a due-process right" that can't be withdrawn retroactively, Markou said.
"It drives me crazy that on a political whim and in the heat of the moment, people think they can change procedures that have been in place for years and years," Markoui said. "That's why we have constitutional protections."
MLive reporter Emily Lawler contributed to this report.