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‘State does not have authority to recount Detroit primary’

D. Etta Wilcoxon, left, and State Elections Director Chris Thomas

D. Etta Wilcoxon, left, and State Elections Director Chris Thomas

Wilcoxon leads charge against state

By Phreddy Wischusen

The Michigan Citizen

DETROIT – Candidate for city clerk, D. Etta Wilcoxon, filed Aug. 29 a lawsuit claiming the Michigan Board of Canvassers had neither the legal authority to handle ballots from the Aug. 6 Detroit primary, nor 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, reads: “Michigan Election Law does not authorize the Defendant State Board of Canvassers 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 Board of Canvassers 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, the suit reads, 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.  Election law does, however, allow that “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 of canvassers neither to handle nor count ballots, further restraining them from certifying the primary.  However, the state board of canvassers had finished their examination of the contested precincts within 48 hours, in spite of state elections director Chris Thomas’ initial estimations it would take four days.  In a preliminary report filed Aug. 30, the state says that write-in candidate Mike Duggan received 4,000 more votes than the city’s unofficial count, which would make Duggan’s votes for the mayoral primary 48,716 – Wayne county had only counted 23,970 for Duggan.

The state Board of Canvassers filed an affidavit Aug. 30 to appeal Draganchuk’s ruling, claiming it has a responsibility to count the ballots in order to “make necessary determinations” certify the primary properly.

“We are opposed to certifying the Wayne County numbers as it would be result in a massive disenfranchisement of over 24,000 Detroit voters … It is unfortunate that a lawsuit was filed attempting to accomplish such a disenfranchisement,” Thomas told this reporter in an email.

Wilcoxon’s suit, however, alleges “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.

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.”

As this article was being published, the Michigan Court of Appeals granted Attorney General Bill Schuette’s motion to overturn Judge Draganchuk’s order. The appeals court reversed the judge’s decision and vacated the temporary restraining order.
The court wrote in its decision that the motion for stay is “denied as moot,” since the Board had already reviewed the votes in question.
The board will certify the election Sept. 3.


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