Michigan’s top Democrats are all in Chicago. Who’s the ‘acting’ governor?

Chicago — None of the six state officials able to serve as Michigan’s governor or acting governor are physically in the state this week, prompting allegations from some Republicans that the lack of a chief executive within the state’s boundaries is unconstitutional.

Gov. Gretchen Whitmer in an interview Wednesday night from the sidelines of the Democratic National Convention in Chicago said she remains the governor and that she would return to Michigan should anything occur that requires her attention.

“I am the governor. I’m always the governor of Michigan. It’s 24/7,” Whitmer said. “Obviously, if there is something official that needs to be done I can get back over the state line in about an hour.”

The Michigan constitution requires that, should a governor be absent from the state, his or her powers and duties be transferred down in order of succession to one of the state’s five highest elected officials: Lieutenant Governor Garlin Gilchrist II, Secretary of State Jocelyn Benson, Attorney General Dana Nessel, Speaker Pro Tempore in the Senate Jeremy Moss and House Speaker Joe Tate.

Gilchrist, Benson and Nessel have signed bills in the past under the title of “acting governor” while Whitmer was out of state.

But each of those five successors and Whitmer have been present at Michigan Democratic delegation breakfasts at the Hilton Chicago, with the delegation at the United Center and at other events throughout the Windy City this week.

Whitmer in 2019 also appointed five individuals to succeed her in the event of an emergency in which no one in the line of elected officials is able to perform the duties of the office. But those individuals are meant to be called on in the event of a disaster. Those individuals are State Treasurer Rachel Eubanks, former Lt. Gov. John D. Cherry, Wayne County Executive Warren Evans, businessman Gary Torgow and U.S. Debbie Stabenow.

Evans and Stabenow also are in Chicago.

Whitmer, when asked if Eubanks was intended to be acting governor during the Democratic National Convention, said she was not.

State Rep. Bryan Posthumus, R-Cannon Township, called the governor and her successors’ absence a “constitutional crisis” and reflective of the Democratic legislative majorities’ infrequent session days this year. The Senate and House — which has struggled to pass legislation with its slim 56-54 majority — have met sparingly throughout 2024 and are not scheduled to come back into session until September.

“There are really critical things at stake now in Michigan,” Posthumus said. “The Supreme Court just put down a ruling that could decimate the entire service industry.”

Posthumus was referring to a recent Michigan Supreme Court decision that overturned a Republican-led effort to curb minimum wage and paid sick leave laws. The decision has left restaurants and businesses in a panic amid the threat of sudden increase to minimum wage, the elimination of the tipped wage and the implementation of mandatory paid sick leave rules.

More: Whitmer supports independent review of police, emergency response to Oxford shooting

More: Michigan’s importance in presidential race in focus at Democratic convention

Attorney Steven Liedel, who served as chief legal counsel for former Democratic Gov. Jennifer Granholm and the Whitmer transition team, rejected the idea that the situation was unconstitutional. The constitutional language governing the line of succession activates those individuals if or when there is a power or duty that needs to exercised, Liedel said.

“There’s nothing that says someone needs to be vested at all times,” Liedel said.

And, as a practical matter, “she’s in Chicago,” Liedel said. “All she has to do is take a plane, a car, a bus or train and the moment she crosses into Michigan, she can exercise any of the powers of governor.”

Liedel also questioned whether the role of the five individuals named in 2019 was only activated upon a disaster. There’s no precedent on the matter, he said, and it’s never been interpreted by an attorney general or court.

Attorney Mark Brewer, a longtime election lawyer and former chairman for the Michigan Democratic Party, said the concerns from Republicans were “silly” and somewhat ironic. It is likely, Brewer said, that Republicans found themselves in similar situations when they controlled the state’s six highest elected offices.

“That’s just a silly, hypocritical argument by the Republicans,” Brewer said. “They were in the same boat at one time.”

eleblanc@detroitnews.com