Kent County Circuit Court candidate Jennifer Johnsen was wrongly kept off the Michigan primary ballot by the Board of State Canvassers, according to the Michigan Court of Claims.

As a result, Johnsen’s name will appear on the August 6, 2024, primary ballot as vying for a seat on the 17th Circuit Court.

In Johnsen v Board of State Canvassers (Docket No. 24-000080-MB), plaintiff-Johnsen filed a complaint for writ of mandamus after she was denied a spot on the primary ballot. The issue was whether the nominating signatures, which had been challenged by her opponent, were invalid because the electors did not “personally affix” the dates to the petition sheets.

Court of Claims Judge Sima G. Patel ruled the signatures were valid and granted the plaintiff’s complaint for mandamus relief.

“The Board [of State Canvassers] had a clear legal duty to accept plaintiff’s nominating petitions and to certify plaintiff for the upcoming primary election,” Judge Patel wrote. Therefore, “the complaint for writ of mandamus is GRANTED and the Board is ordered to certify plaintiff for inclusion on the ballot for the … primary election.”

Background

The plaintiff, Jennifer Johnsen, sought to be a candidate for the 17th Circuit Court (Kent County). Under MCL 168.544f, to be qualified to appear on the ballot, she had to submit a minimum of 2,000 signatures on nominating petitions, based on the size of Kent County’s population. She timely filed 2,197 signatures.

The plaintiff’s opponent in the election, Lisa Molegraaf, challenged 641 of the signatures because the petition circulator – not the elector who signed the petition – provided the date of signing. Molegraaf argued that MCL 168.544c(2) requires electors to personally affix the date to the petition sheets. The plaintiff conceded that, to save time, petition circulators pre-filled the dates on which the challenged signatures were provided.

In response to the challenge, the Bureau of Elections (BOE) found that MCL 168.544c(2) did not require electors who signed nominating petitions to personally affix the date on which they signed the petition. The BOE recommended the Board of State Canvassers (the Board) determine whether the petitions were sufficient.

The Board deadlocked 2-2 on a motion to accept the BOE’s recommendation. As a result, the plaintiff was not certified to appear on the primary ballot.

The plaintiff appealed to the Court of Claims, asking for mandamus relief and expedited consideration.

‘Clear Legal Duty’

In his analysis, Judge Patel first observed that to obtain the “extraordinary remedy” of a writ of mandamus, the plaintiff had to establish that: 1) she had a clear legal right to the performance of the duty sought to be compelled, 2) the defendant had a clear legal duty to perform such act, 3) the act is ministerial in nature such that it involves no discretion or judgment and 4) she had no other adequate legal or equitable remedy.

Given the ballot-printing deadline, the main issue in the case was whether a clear legal right existed for the plaintiff to be included on the ballot for the primary election – and the resolution of this issue required a review of MCL 168.544c, Judge Patel explained.

MCL 168.544c “outlines the requirements for nominating petitions, including the information that must be provided on petition sheets,” the judge observed. “For instance, in MCL 168.544c(1), the statute directs that the ‘date of signing,’ as well as the elector’s signature, street address, and zip code must be included on the petition sheet. In addition, and pertinent here, MCL 168.544c(2) provides that: ‘The petition must be in a form providing a space for the circulator and each elector who signs the petition to print his or her name. The secretary of state shall prescribe the location of the space for the printed name. The failure of the circulator or an elector who signs the petition to print his or her name, to print his or her name in the location prescribed by the secretary of state, or to enter a zip code or his or her correct zip code does not affect the validity of the signature of the circulator or the elector who signs the petition. A printed name located in the space prescribed for printed names does not constitute the signature of the circulator or elector. If an elector does not include his or her signature, his or her street address or rural route, or the date of signing on the petition as required under subsection (1), the elector's signature is invalid and must not be counted by a filing official.  [Emphasis added.]’”

The “dispositive issue” was whether MCL 168.544c(2) requires that electors “personally affix” the date of signing to a nominating petition, Judge Patel said. “The Court concludes that no express requirement exists in the statute. Notably, the statute only specifies that the elector must ‘include’ the date of signing as required by subsection (1). However, neither subsection (2) nor subsection (1) specify how that information must be included, i.e., whether it must be done by the electors personally or by the circulator. Hence, the requirement can be met if, as occurred here, the elector authorizes the date to be included with the elector’s signature.”

Judge Patel further pointed out that, upon looking at a nominating petition sheet, “it becomes clear that an elector can ‘include’ the date of signing ‘as a part of a whole or group’ of information that is on the sheet by placing the elector’s signature and information on a line that already has the date filled in by the circulator.”

Moreover, “the conclusion that MCL 168.544c(2) does not compel the elector to affix their own date to the petition becomes clear when the language employed in subsection (2) is contrasted with the duties placed on a petition circulator in subsection (5) of the statute,” the judge said. “Subsection (5) declares that a ‘circulator of a petition shall sign and date the certificate of circulator before the petition is filed.’ … (emphasis added). The directive that the circulator shall date the petition makes it apparent that the Legislature intended to place on petition circulators themselves the mandatory duty to personally sign and date the certificate of circulator. … Unlike in subsection (5), however, subsection (2) lacks a mandatory directive about who shall date the petition.”

Next, Judge Patel compared the nominating statute with the recall statute, MCL 168.954, which the defendant argued supported the decision to keep the plaintiff off the ballot. “Here, the lack of express language in MCL 168.544c(2) requiring that an elector personally affix the date to a nominating petition, when contrasted with the express inclusion of such language in the recall statute, demonstrates that the Legislature did not intend to require that electors personally affix the date to nominating petitions,” he stated.

In addition, Judge Patel found “unconvincing” the Court of Appeals decision in Sutika v Roscommon County Clerk (Docket No. 337144). He noted that Sutika  is an unpublished opinion and therefore not binding, and that it addressed recall petitions instead of nominating petitions.

Judge Patel also distinguished Wilcoxon v City of Detroit Election Comm’n, 301 Mich App 619 (2013), from the present case. “An argument could be made that, in amending MCL 168.544c(2), the Legislature was aware of the opinion in Wilcoxon and that the amendment was designed to address the problem that arose in Wilcoxon.  …  As noted, the problem that arose in Wilcoxon was the lack of a date on a nominating petition. The amendment to MCL 168.544c(2) clearly addressed that issue. It is not apparent, though, that the amendment addressed the question of whether the elector must be the one to affix the date; rather, the amendment only addressed the issue of whether the date had to be included on the petition by the elector. And for the reasons noted …, the Court declines to read the amendment to MCL 168.544c(2) as directing that the only way the elector can  ‘include’ the date is by personally writing it onto the petition.”

Based on the foregoing analysis, Judge Patel ruled the Board had a “clear legal duty” to accept the plaintiff’s nominating petitions and to certify her for the ballot. “Likewise, plaintiff established that she has a clear legal right to be included on the upcoming primary ballot. …  And given the … deadline for certifying the ballot, plaintiff established that mandamus is the appropriate procedural vehicle for vindicating her rights.”

Therefore, Judge Patel granted the complaint for writ of mandamus and ordered the Board to certify the plaintiff for inclusion on the primary election ballot.