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D. Etta Wilcoxon

D. Etta Wilcoxon

State certifies primary election, city clerk candidate D. Etta Wilcoxon files lawsuit

By Phreddy Wischusen
The Michigan Citizen

DETROIT — The fight over the Detroit Aug. 6 primary continues. On Aug. 29, candidate for city clerk D. Etta Wilcoxon filed a lawsuit claiming the  Board of State Canvassers had neither the legal authority to handle ballots from the Aug. 6 Detroit primary nor the right to recount them.

“The state said that it wanted to enfranchise Detroiters.  That is not the way to enfranchise Detroiters,” Wilcoxon told the Michigan Citizen. “You do not break the law in order to try and correct the law. One of the cornerstones of American jurisprudence is we are a country of laws, not of men.”

The lawsuit, filed by Wilcoxon’s attorney Drew Patterson, claims: “Michigan Election Law does not authorize the defendant state board to ‘recount’ any ballots cast during its canvassing of a local election.  Simply, the Defendant State Board of Canvassers do not have the authority to commence a ‘recounting’ of votes.”

The suit claims the state can only exercise powers granted them under statute and the ruling in Roxborough v Mich, which states that “Public officers have and can exercise only such powers as are conferred on them by law…” This precludes the state from handling the ballots given that there is no part of Michigan election law that expressly allows the state to count ballots, according to Paterson.

Election law does, however, allow “the board of county canvassers may, if necessary for a proper determination, … designate staff members from the county clerk’s office to count any ballots that the election inspectors failed to count … and the board of county canvassers shall canvass the votes from the corrected returns.”

As a result of Wilcoxon’s suit, Ingham County Judge Joyce Draganchuk ordered the state board neither to handle nor count ballots, further restraining them from certifying the primary.  However, the state board had finished their examination of the contested precincts within 48 hours, in spite of state elections director Chris Thomas’ initial estimate of four days count time.

In an email, Thomas said he is opposed to certifying the Wayne County numbers “as it would be result in a massive disenfranchisement of over 24,000 Detroit voters.” The  Board of State Canvassers filed an affidavit Aug. 30 to appeal Draganchuk’s ruling, claiming it had a responsibility to count the ballots in order to “make necessary determinations” to certify the primary properly.

“It is unfortunate that a lawsuit was filed attempting to accomplish such a disenfranchisement,” Thomas continued.

Ruling in favor of the state, the appeals court reversed Draganchuk and vacated the temporary restraining order as “moot.” The board had already handled the ballots and fhad completed the count.  The appellate court’s decision cleared the way for the certification, although Wilcoxon’s team began their immediate legal response.

When the Board of State Canvassers met again on Sept. 3, Thomas announced after reviewing 385 precincts write-in candidate Mike Duggan received 48,716 – 24,746 more “valid votes” than Wayne County had awarded him. Unofficial results, announced by the City clerk, on election night awarded approximately 44,000 write-in votes to Duggan. Thomas explained how the state found 4,000 more votes for Duggan : “I must stress these are votes where his name was spelled correctly.  There were other variations which the Wayne County Board of Canvassers did allow … (that) were not included in this 44,000.”

Thomas and members of the Board of Canvassers praise d the workers’ rapid examination of 63 percent of Detroit’s precincts.

With the Board of State Canvassers meeting under way, members from the Michigan Attorney General’s office and Wilcoxon’s attorney, Paterson were back in Ingham County Circuit Court.  During the meeting, Chris Thomas paused the proceeding to read messages regarding the judge’s latest rulings, telling the board that Judge Draganchuk “refused to weigh in on how the board proceeds with the certification of the canvas.”  Atty. Drew Paterson saw it differently, telling the Michigan Citizen that the judge wasn’t going to rule on wrong-doing by the state until it had done wrong, certifying the primary with information from an illegal retabulation.

Wilcoxon also believes “the personal politics of the State Director of Elections and his personal affiliations to the Mike Duggan for Mayor Committee has caused him to continue to purposely misconstrue and interpret Michigan Election Law in an effort to assist the candidate of his choice.”

Thomas would not expressly answer questions from the Michigan Citizen regarding his relationship with Mike Duggan.

Paterson will be back in Draganchuk’s court on Wilcoxon’s behalf in the next week to contest the certification. He argues the state only had the right to call in precinct workers to examine the ballots, not to handle the ballots themselves.

Wilcoxon says there is more at stake than the results of this particular primary contest.

“The fact of the matter is, the Michigan legislature did a very poor job of drafting the legislation; they did not obviously anticipate the kind of scenario we’re now confronted with,” she said. “The question becomes: what if this happens in let’s say 25 cities around the state of Michigan in our next election cycle?  The state cannot clone itself and be in 25 places.  Are we going to have the integrity of our elections placed in the hands of private contractors? Who is going to be responsible for certifying elections in the state of Michigan? We cannot allow the state to haphazardly create rules and decide how it’s going to certify elections without some legal base for it.”

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