JUDICIAL CANDIDATES' NOM. PETITIONS S.B. 21-24: ANALYSIS AS REPORTED FROM COMMITTEE
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Senate Bills 21 through 24 (as reported without amendment)
Sponsor: Senator Tony Stamas
Committee: Judiciary


Date Completed: 2-24-09


RATIONALE
Under the Michigan Election Law, the required number of signatures on a nominating petition is based on the population of the election district involved. In 2008, a prospective candidate for judge of the 23rd Circuit Court in northeastern Michigan submitted to the Secretary of State's office in Lansing a nominating petition with 158 signatures. He had been informed by Bureau of Elections officials, and learned from the Bureau's website, that he needed 100 to 200 signatures in order to be placed on the ballot to challenge the two incumbent judges who were up for re-election, and that filing more than 200 signatures would be a misdemeanor. Due to changes in the boundaries of the 23rd Judicial Circuit that were enacted in 2002, however, nonincumbent judicial candidates in that circuit actually need between 200 and 400 signatures to qualify for the ballot. The discrepancy was brought to the attention of Bureau officials after the filing deadline had passed, and the would-be candidate was informed that his name would not be on the ballot. After a court case that reached the Michigan Supreme Court, the man's name ultimately was not placed on the ballot. (Please see BACKGROUND for more information on the case.)


Should this type of situation recur, some people believe that when elections officials give a potential candidate erroneous information regarding the number of signatures needed on a nominating petition, the candidate should have legal recourse and be allowed to gather the necessary additional signatures after the filing deadline.
CONTENT The bills would amend the Michigan Election Law to allow a candidate for certain judicial offices to bring an action for equitable relief if he or she received incorrect or inaccurate information from various election officials concerning the number of nominating petition signatures required under the Law; and allow the candidate to obtain additional signatures if the court granted relief.

Senate Bill 21 would apply to circuit court judge candidates, Senate Bill 22 would apply to candidates for district court judge, Senate Bill 23 would apply to probate judge candidates, and Senate Bill 24 would apply to candidates for judge of the municipal court of record.


Specifically, if a candidate for nomination for the office of judge of the circuit court, district court, probate court, or municipal court received incorrect or inaccurate information from the Secretary of State, the Bureau of Elections, or a local election official concerning the number of nominating petition signatures required under Section 544f of the Law, the candidate could bring an action in a court of competent jurisdiction for equitable relief. A court could grant equitable relief to a candidate if both of the following applied:

-- The number of valid nominating petition signatures the candidate submitted before the filing deadline was within 20% of the minimum number actually required.
-- The candidate filed an affidavit certifying that he or she contacted the Secretary of
State, the Bureau of Elections, or a local election official and received incorrect or inaccurate information concerning the number of required nominating petition signatures.


If a court granted equitable relief to a candidate under the bill, the candidate would have to be given the opportunity to obtain additional nominating petition signatures to meet the requirements of Section 544f. The candidate would have to file the additional nominating petition signatures with the Secretary of State by 4 p.m. on the fifth business day after the date of the court order granting equitable relief.


Section 544f specifies the number of signatures of qualified and registered electors necessary for nominating petitions based upon the population of the district involved, according to the most recent Federal census. The numbers of signatures required for a petition for a nonpartisan election are shown in Table 1.


Table 1




Population		 Minimum No. of Signatures Maximum No. of Signatures
Up to 9,999 6 20
10,000-24,999 40 100
25,000-49,999 100 200
50,000-74,999 200 400
75,000-99,999 400 800
100,000-199,999 600 1,000
200,000-499,999 1,000 2,000
500,000-999,999 2,000 4,000
1,000,000-1,999,999 4,000 8,000
2,000,000-4,999,999 6,200 12,000
Over 5,000,000 (statewide) 30,000 60,000

MCL 168.413 (S.B. 21) 168.467b (S.B. 22) 168.433 (S.B. 23) 168.426d (S.B. 24)

BACKGROUND


Public Act 92 of 2002


 Among other things, Public Act 92 of 2002 expanded the 23rd Judicial Circuit, which had consisted of two counties (Iosco and Oscoda), by adding two more counties (Alcona and Arenac), effective April 1, 2003. (Alcona was transferred from the 26th circuit and Arenac was transferred from the 34th circuit.) Before the expansion, the 23rd circuit had one judge; since the expansion, it has two judges, as the 34th circuit judge residing in Arenac County became a judge of the 23rd circuit.


Generally, when a new circuit judgeship is created, the boards of commissioners in the affected counties must approve the judgeship by resolution and provide a copy of that resolution to the State Court Administrator. The State Court Administrator then must notify the Bureau of Elections in the Department of State. This action evidently is what typically triggers the Bureau to change its published petition signature requirements. Public Act 92, however, provided that its reformation of judicial circuits did not require the approval of the county boards. Consequently, the State Court Administrator never notified the Elections Bureau of the changes to the 23rd circuit and the Bureau did not change the information published and posted on its website about the number of petition signatures needed for a nonincumbent judicial candidate to appear on the ballot in that circuit.


The combined 2000 census population of Iosco and Oscoda Counties was 36,757, which, under the Michigan Election Law, would require a nonincumbent judicial candidate to submit a nominating petition with 100 to 200 signatures. Adding Alcona and Arenac Counties to the judicial circuit brought the combined population of the election district up to 65,745, which requires a nominating petition with 200 to 400 signatures.


Martin v Secretary of State and Myles and Bergeron


 Relying on the oral and published instructions of Bureau of Elections officials, Christopher Martin submitted a petition with 158 signatures in order to be a 2008 candidate for judge of the 23rd Circuit Court. After the filing deadline, one of the sitting judges on that court challenged Martin's candidacy on the basis that he had submitted an insufficient number of signatures. Martin then attempted to file additional signatures, but the Bureau refused to accept them because the deadline had passed. Bureau officials subsequently informed Martin that he was ineligible to be listed as a candidate.


Martin filed suit in the 30th Circuit Court in Ingham County seeking to enjoin elections officials from keeping him off the ballot. The two sitting judges of the 23rd Circuit Court filed a motion to intervene. The trial court denied the motion and ordered the Secretary of State to extend the deadline for filing nominating petitions and to place Martin's name on the ballot if he filed a sufficient number of signatures. Martin did so, and his name was back on the ballot.


The 23rd circuit judges appealed, arguing that they had suffered an injury because they would have to run in a contested election against an opponent who had not met the statutory requirements to qualify for the ballot. In ruling that the judges did not have standing in the case, the Court of Appeals held that "...a candidate for judicial office has not suffered an injury and therefore is not an aggrieved party and does not have standing solely because the candidate is required to run in a contested judicial election" (Court of Appeals No. 286015, 8-21-08). According to the dissenting opinion, however, the 23rd circuit judges were wrongfully denied their opportunity to intervene both as private citizens and as candidates for public office. The dissenting judge reasoned that Martin was not due an equitable remedy because Section 544f clearly indicates the signature requirements for a nominating petition and the candidate had a duty to follow them.


The 23rd circuit judges then filed a motion for immediate consideration by the Supreme Court, which reversed the judgment of the Court of Appeals and the 30th Circuit Court for the reasons stated in the Court of Appeals dissent. The Supreme Court ruled: "A candidate for elective office suffers a cognizable injury in fact if, due to the improper interpretation and enforcement of election law, he or she is prevented from being placed on the ballot or must compete against someone improperly placed on the ballot." The Court reinstated the Secretary of State's decision to remove Martin from the ballot (Supreme Court No. 137173, 9-4-08).




ARGUMENTS (Please note: The arguments contained in this analysis originate from sources outside the Senate Fiscal Agency. The Senate Fiscal Agency neither supports nor opposes legislation.)

Supporting Argument The Michigan Election Law specifies the number of nominating petition signatures required for certain candidates to be placed on the ballot, but does not provide for relief when elections officials give candidates erroneous information. The 2008 case in which a prospective judicial candidate failed to file the proper number of signatures because he was given inaccurate instructions by the Bureau of Elections illustrates the problem. Since the error was not uncovered until after the filing deadline, the candidate had no opportunity to submit the additional signatures and did not appear on the ballot. By allowing a candidate for circuit, probate, district, or municipal judge to bring an action for equitable relief if he or she received incorrect information from various elections officials, the bills would help to prevent another situation like the one in the 23rd circuit in 2008, and give an aggrieved candidate an opportunity to collect more signatures after the filing deadline if he or she met the proposed criteria.
Response: There are several problems with the bills. The incorrect information on which an action for equitable relief would be based should have to be published and distributed, not just offered orally. In the 23rd circuit situation, the candidate received the information both in telephone calls and from official documents posted on the website. Also, legal action should be allowed only if the candidate received the inaccurate information from the entity with which he or she was required to file nominating petitions. In circuit court races, for instance, the candidate must file the petitions with the Secretary of State, not with local elections officials, so he or she should not be able to base an action on erroneous information received from local officials. (District judge candidates also must file with the Secretary of State, but probate judge candidates file with the county clerk and municipal judge candidates file with the city clerk.) In addition, the requirement that the candidate file a number of signatures that was within 20% of the minimum number actually required should be removed because a candidate could receive incorrect information that resulted in failure to meet that threshold, or could have met the mistaken requirement without being within 20% of the actual requirement. (Indeed, the 2008 candidate in the 23rd circuit would have had to submit 160 signatures to comply with the bills' standard but he submitted only 158, well within the 100 to 200 he was told were required.) The legislation also should establish timeliness requirements for filing an action and for a court's consideration of that action, as proposed for the candidate's collection of additional signatures after equitable relief was ordered.


Legislative Analyst: Patrick Affholter

FISCAL IMPACT
The bills would have no fiscal impact on State or local government.


Fiscal Analyst: Joe Carrasco
Stephanie Yu

Analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent. sb21-24/0910