The state of Michigan will pay $200,000 to the Mackinac Center for Public Policy to cover legal fees incurred in litigation that overturned Gov. Gretchen Whitmer’s COVID-19 emergency orders as illegal. In its 2020 ruling, the court also threw out the state’s 1945 emergency powers law as unconstitutional.

“We were there when Michigan needed us,” said Patrick Wright, vice president of the Mackinac Center Legal Foundation.

As a term of the settlement, the fees will be split evenly between the governor’s office, the attorney general’s office, and the Michigan Department of Health and Human Services, an executive branch agency. The state denies liability, but has agreed to the fees.

In May 2020, just two months into the COVID-19 pandemic, the Mackinac Center Legal Foundation and the Grand Rapids-based law fim Miller Johnson sued to challenge the constitutionality of Whitmer’s emergency powers.

The Mackinac Center represented three medical providers and a patient, Jeffrey Gulick of Owosso, who were denied access to their work and to critical care unless the visit was deemed “essential.”

The state would be the decider of what was essential and what was not. Gulick needed a knee replacement, which was deemed nonessential.

"It was difficult," being one of the few voices to speak against Whitmer's unilateral powers, just two months into the pandemic, Joseph G. Lehman, president of the Mackinac Center, told CapCon. "But that's what the Mackinac Center does, and that's what the Mackinac Center is. The Mackinac Center was created for precisely what it just did: directly confronting an egregious abuse of government power, and restoring the people's voice.

In October 2020, the Michigan Supreme Court ruled unanimously that Whitmer’s extensions of emergency powers beyond April 30, 2020, without legislative approval, was illegal.

And by a 4-3 ruling, the court declared Michigan’s 1945 emergency powers law unconstitutional. With one case, the governor’s emergency powers were severely limited.

Every executive order issued after April 30, 2020, was struck down. In Wayne County alone, this led to the dismissal of 1,700-plus tickets for violations of public health orders, including 1,632 in Detroit.

Lehman added, “For five months, Gov. Whitmer disregarded the law, suppressed civil liberties and controlled the day-to-day activities of 10 million Michigan residents. During this time, the governor’s orders sought to micromanage almost every aspect of our lives.”

“This is one of our highlights of all time, getting in and winning this case,” Wright said.

Lehman agreed.

"If the Mackinac Center closed its doors tomorrow, this could very well be the one thing we would be known for," Lehman said of the emergency powers case.

Wright said that if the 1945 emergency powers law hadn’t been struck down, and the 1976 emergency powers law wasn't violated, Whitmer could have claimed the power to maintain emergency status until the economy had recovered.

Wright cites Whitmer’s Executive Order 2020-67, and 2020-68, which read:

“Moreover, state disaster and emergency recovery efforts remain necessary not only to support Michiganders in need due to the economic effects of this pandemic, but also to ensure that the prospect of lost income does not impel workers who may be infected to report to work, which would undermine infection control and contribute to further spread of the virus. Statewide coordination of these efforts is crucial to creating a stable path to recovery. Until that recovery is underway, the economic and fiscal harms from this pandemic have been contained, and the threats posed by COVID-19 to life and the public health, safety, and welfare of this state have been neutralized, statewide disaster and emergency conditions will exist."

Which is to say: “Statewide disaster and emergency conditions will exist” until Whitmer declared the economy had recovered sufficiently — as defined by her own office.

“Thus, without our legal victory, Whitmer could have still claimed there was an economic emergency requiring her control,” Wright said.

The Mackinac Center Legal Foundation represents clients free of charge.

Michigan Senate Bill 1069 never mentions Mark Zuckerberg, “Zuckerbucks,” or the 2020 election by name. The two-page bill merely bans outside funding for Michigan elections. But it takes aim at the large donations Facebook founder Mark Zuckerberg and others made to election officials prior to the last presidential vote. 

SB 1069, introduced by Sen. Ruth Johnson, R-Holly, declares: “A person shall not, either directly or indirectly, give, lend, or promise any money or other consideration to the secretary of state, a county, city, township, or village, or any election official in this state to influence, either directly or indirectly, the electors to vote in person or by absent voter ballot.”

The penalties for individual transgressors convicted of knowingly violating the law include up to 5 years in prison and/or a $1,000 fine. Entities found guilty could face up to $100,000 in fines.

Johnson, a former Michigan secretary of state, had expressed public concerns about election security well before the 2020 election.

In a July 2020 Detroit News op-ed, Johnson criticized Secretary of State Jocelyn Benson for using $4.5 million in COVID-19 relief money to mail out 7 million absentee ballot applications.

“We have many examples where these applications were sent to people who are dead, moved out of the state, or are non-citizens,” Johnson wrote. “This money should have been used to get more high-speed counters, personal protective equipment and other supplies for local clerks running our elections.”

Since November 2020, the role of Facebook founder Mark Zuckerberg, and his nonprofit donations to elections clerks across America – called “Zuckerbucks” – have come under scrutiny.

Florida has banned its clerks from accepting them. Florida Gov. Ron DeSantis described the outside funds as “a corrupting influence, basically having Silicon Valley run your election.”

One lawsuit, which unsuccessfully challenged the legality of accepting the donations, alleged that $16 million in Zuckerbucks went to Michigan clerks in 2020.

Tudor Dixon, who is now running for governor as a Republican, wrote last year that $12 million was given to a nonprofit founded and run by Benson as recently as February 2020.

“Shortly after receiving the massive grant, (the Michigan Center for Election Law and Administration, the nonprofit Benson founded) gave 99 percent of it—or nearly $11.9 million—to two political consulting firms that work exclusively for Democrats under the guise of “educating voters,” Dixon wrote.

Johnson and five other Republicans have offered legislation to prevent that from happening again.

Senate Bill 1069 was introduced June 9 and referred to the Committee on Elections. There hasn’t been any action since.

The bill would need to pass the Michigan House and Senate and be signed by Gov. Gretchen Whitmer to become law. If the governor vetoes a bill, both houses of the Legislature need to repass it with two-thirds support to override the veto.