Residents of Benton Harbor who claimed the city’s mayor was unresponsive to their needs circulated a petition to have him recalled from office. The county clerk certified the petition in February 2014 and scheduled a recall election for May. However, just before the election the clerk sought an injunction from a judge to postpone the election based on unproven allegations that some petition signers may have signed more than once and the dates for some of the signatures may have been altered.
The ACLU of Michigan filed a friend-of-the-court brief arguing that the election should proceed. We argued that once a recall petition is certified, the election should not be cancelled based on late-breaking unproven allegations of wrongdoing; rather, any disputes about the validity of the election should be handled in court after it takes place. Judge John Dewane disagreed with the ACLU and canceled the May election pending a full trial on the merits. After all the evidence was presented, the question of whether the recall petitions were sufficient turned on how a signature should be treated when the same person signed a petition more than once, typically on different occasions separated by many weeks or months.
Judge Dewane ruled that because the signing of petitions is core political speech, even those citizens whose signatures appeared multiple times have a First Amendment right to be heard. He ordered that the first of each signer’s multiple signatures be counted and the rest discarded. Even with the loss of the duplicate signatures there were enough signatures remaining to make the petition valid, so Judge Dewane ordered that the recall be placed on the ballot for the November 2014 election. The county clerk then filed an emergency appeal, arguing that if someone’s signature appeared more than once on a petition, that person’s signature should not be counted at all.
The ACLU of Michigan filed a friend-of-the-court brief arguing that the First Amendment required the clerk to count each person who signed as one valid signature, and simply disregard duplicates. Our brief explained that the signature gathering process causes some people to inadvertently sign the same petition more than once, but this was no reason to exclude those people entirely from the political process.
Unfortunately, in September 2014 the Michigan Court of Appeals summarily reversed the trial court’s decision without explanation and ordered the ballot recall question removed from the ballot. The Michigan Supreme Court declined an emergency request to consider the case.
(In re City of Benton Harbor Mayoral Recall Election; ACLU Attorneys Mark Fancher, Dan Korobkin and Michael J. Steinberg; Cooperating Attorney Mark Brewer.)
View the full 2014-2015 Legal Docket.