COA: ‘Byzantine’ Filing Requirements Make Judicial Races Akin To ‘Hunger Games’

In Neilson v Board of State Canvassers (Docket No. 371256), the Michigan Court of Appeals held that the plaintiff was not entitled to a writ of mandamus compelling the Board of State Canvassers to certify her as a judicial candidate on the election ballot.

Although the Board of State Canvassers (the Board) has “a duty to investigate signatures or to check signatures against the qualified voter file,” the Court of Appeals said, citing MCL 168.552(8) and MCL 168.552(13), the Board “did not have a clear legal duty to accept and review the last-second submissions by plaintiff.” In addition, election laws require the Board finish its canvass at a certain time, the appeals court said, referencing MCL 168.552(9). “[T]he Board had discretion to determine when enough opportunities to rehabilitate signatures had been given, and when the process needed to be completed so that it could comply with its statutory duties in the time demanded by law.”

Judge Sima G. Patel, Judge Christopher P. Yates and Judge Kathleen A. Feeney joined the published opinion.

Perhaps more interesting than the majority’s analysis of Michigan election laws is Judge Yates’ separate concurring opinion, which Judge Patel and Judge Feeney joined.

In his concurring opinion, Judge Yates said that he agreed with the majority decision “because it faithfully applies Michigan law to reach the correct result in this case ….” However, he explained that he wrote separately “to express my concern that contests for vacant judgeships all too often have turned into the Hunger Games.”

Judge Yates explained that, once judicial candidates gather the required number of petition signatures then file their affidavits and other required paperwork, “they turn on their opponents by trying to disqualify enough of their competitors to leave standing as few certified candidates as there are vacant judgeships. The results of such efforts can deprive voters of any meaningful choice for judgeships and almost certainly discourage aspiring judicial candidates from running for office.  Surely these outcomes are not what the electorate and the legal profession want or need.”

To maintain a “talented, engaged, committed judiciary, we ought to ensure that filing to run for a judgeship is not a daunting task,” Judge Yates wrote. “Yet the intricacies of filing requirements have recently been exploited in efforts to disqualify candidates for judicial office for prefilling dates on petition sheets, Johnsen v Bd of State Canvassers, opinion of the Court of Claims, issued June 6, 2024 (Case No. 24-000080-MB), for failing to change the headings on petition sheets after a sitting judge did not timely file paperwork to run for reelection, Ruggirello v Benson, opinion of the Court of Claims, issued June 11, 2024 (Case No. 24-000081-MB), and for following instructions on an ‘Incumbent Judicial Affidavit of Identity and Affidavit of Candidacy’ by inserting the word ‘STATE’ instead of the name of a county in response to the check-box statement that ‘I previously ran in Michigan for an office that required filing reports under the Michigan Campaign Finance Act.  I ran in the following counties ________________’” (See, “Court Of Claims: Candidate Johnsen Must Be On Ballot,” Speaker Law Blog.)

Judges Yates continued, “I find no fault with the highly skilled attorneys who represent candidates for mastering the details of election laws and using that knowledge to challenge judicial aspirants who unwittingly fail to comply with the Byzantine filing requirements. But I lament the willingness of candidates for judicial office to try to disqualify their opponents by flyspecking their opponents’ submissions and then launching challenges to their opponents before the Bureau of Elections, the Board of State Canvassers, and courts. Whether the challenges involve hand-to-hand combat undertaken in the candidates’ own names or instead are conducted in the names of candidates’ proxies who litigate candidate eligibility beyond all reason and at great expense, these challenges too often disqualify candidates who have garnered substantial backing in the form of thousands of legitimate petition signatures.  And these challenges manifestly have a deeply chilling effect on potential candidates for vacant judgeships in future elections.”

According to Judge Yates, “It has always been difficult to recruit highly qualified attorneys to run for judicial offices. Campaigning is time-consuming, expensive, and stressful. But it is becoming even more difficult to recruit candidates in the evolving environment where a run for a judgeship inevitably requires retention of an attorney steeped in election law to help navigate the pitfalls and traps in the filing requirements. The losers in this environment are the voters deprived of highly qualified judicial candidates and the legal profession that expects and deserves a first-rate judiciary.  We can – and we must – do a better job of affording candidates for judicial offices relatively ready access to the ballot.”

In conclusion, Judge Yates “commended” the Secretary of State and the Bureau of Elections for attempting “in recent election cycles to make the affidavit of identity and the affidavit of candidacy more manageable.” However, “the challenges to judicial candidates will persist and, I fear, increase in volume unless the filing requirements prescribed by Michigan law are further simplified and clarified,” he said. “I hope a collective effort to accomplish those goals will be undertaken before the election cycle in 2026. An effort of that nature is imperative if we want the best judiciary that we can have.”