Time is running out for Gov. Gretchen Whitmer to make two important decisions involving this year’s elections in Michigan. She has already mangled one, and she’s on the verge of making the wrong call on the other.
Just a day before what has been a Tuesday, April 21, filing deadline for candidates for Congress, judgeships and various local offices, U.S. District Court Judge Terrence G. Berg has just issued an opinion to extend the deadline to May 8 and cut in half the minimum number of signatures required. Berg also ordered state election officials to come up with a plan, within 72 hours, to allow the collection of petition signatures electronically.
Whitmer still has to make a second tough call — whether or not to cancel the state’s scheduled May 5 election.
Before the judge’s decision, Whitmer had declined to budge from her position that the April 21 deadline and signature requirement be extended and/or amended despite numerous requests that she do so.
Berg’s decision came as a result of a lawsuit filed by U.S. House candidate Eric Esshaki in the 11th CD that contends the filing deadline should be extended because it has become too onerous to collect petition signatures due to Whitmer’s “Stay Home/Stay Safe” executive order in the face of the Coronavirus crisis.
As many as a dozen judicial candidates and about that many running for the U.S. Senate and House — including well-known names like Democrats Gretchen Driskell of Saline and Brenda Jones of Detroit and Republican Tim Kelly of Saginaw — have yet to file with only a day to go before the 4 pm April 21 deadline.
But anyone hoping the filing deadline might be extended to accommodate those struggling to gather signatures had not gotten encouraging words from Whitmer, who said last week that “these deadlines are ‘critical’ for keeping elections on schedule.”
“It’s really important that especially in times of crisis we protect these fundamentals that are truths of our democracy and our republic,” Whitmer said. “It’s important that we continue to have our elections, do them as well as we can and keep people safe in the process.”
Interestingly, Secretary of State Jocelyn Benson, who had earlier said she favored an extension for the very reason outlined in the federal lawsuit, tweeted Friday she supported what Whitmer had said.
Some have even posited, somewhat cynically, that if certain judicial posts have no candidates because aspirants can’t qualify for the ballot, it may allow the governor to make appointments to fill them beginning next January. But that doesn’t seem likely because, with a single exception, there has been at least one filer already for all the open judgeships in the Court of Appeals and Circuit, Probate and District courts.
For example, the single open seat on the state’s appellate panel (in the 4th district, to succeed retiring incumbent Patrick Meter) has already attracted one petition filer — Clinton County Circuit Judge Michelle Rick.
There are 10 circuits statewide with one or more open seats. All of those circuit court open seats have attracted at least one filer. The exception is in Kent County’s 17th Circuit Court. It has 3 open seats. Only one filer has submitted the required signatures, leaving two seats with no candidates. One of those three open seats came about because incumbent Kathleen Fenney failed to file her affidavit of incumbency by the March 23 deadline, a blunder that had nothing to do with Whitmer’s “Stay at Home” order. Fenney must now file 2,000-4,000 petition signatures by tomorrow to be placed on the August primary ballot. With Whitmer’s EO in effect, that effort could well fail. Fenney may be forced to run as a write-in.
There are no open Probate Court judgeships on the Michigan ballot this year. Yes, there are 12 open seat District Court judgeships across the state, but each of those has attracted at least filer.
Still, it might be argued that Whitmer’s EO had the practical effect of stifling competition. Many of these open judgeships would apparently be filled by first-time candidates with no competition. That would seem to defeat Whitmer’s avowed purpose of furthering democracy. She could have solved the dilemma by waiving or extending the filing deadline, or by decreeing that a filing fee could be used as a substitute for petition signatures. Now Judge Berg has done it for her.
Then there is the question of whether the still-scheduled May 5 election, in effect statewide, should still be held. A growing chorus of clerks and election workers, not to mention voters, has been arguing next month’s election should be scrapped or consolidated with the Aug. 4 primary election.
Last Friday, state Sen. Ruth Johnson sent a letter to Whitmer and Benson, urging them to “do the right thing” and postpone the May 5 election and combine it with the August 4 election.
“Continuing with a May 5 election puts election workers and voters at extreme risk, and it needlessly jeopardizes the integrity of the election,” said Johnson, chair of the Senate Elections Committee and a former two-term Michigan Secretary of State. “I strongly encourage Gov. Whitmer and Secretary Benson to do the right thing: Preserve our democracy, protect the voting public, protect our clerks, protect their staffs, and protect our election workers — who are largely senior citizens and at a greater risk from COVID-19.”
Johnson argued on the Michigan Talk Network this past week-end that it is “hypocritical” for Benson to close her SoS branch offices for public health and safety reasons while acquiescing to Whitmer’s insistence that the May 5 balloting should go forward as scheduled, endangering septuagenarian precinct workers.
“Michigan should never disenfranchise voters who do not vote by absentee ballot by making them choose between voting and their health, safety and possible death — especially when moving the election to a later date is a viable option,” said Johnson, who defeated Benson in 2010 for SoS.
Johnson’s April 17 letter mentions that the Wisconsin Elections Commission strongly urged people to vote absentee in its recent election. As a result, some serious problems developed. “In Wisconsin,” Johnson wrote, “There are reports that thousands of voters never even received their absentee ballots and then had to go vote in person or were disenfranchised because they chose not to go vote and risk their safety.”
Johnson’s letter also noted reporting from the New York Times that Wisconsin’s approach “forced several thousand more to endanger their lives at polls and burdened already strained state health officials with a grim new task: tracking the extent to which in-person voting contributed to the virus’s spread in the state, a federal disaster area.”
At least 16 other states, including neighboring Indiana and Ohio, have already delayed their elections to preserve people’s right to vote.
But the reaction so far from Whitmer has been silence — and the sand is rapidly running through the hour glass.