LANSING – Oakland County businessman Perry Johnson filed a challenge with the Michigan Court of Appeals on Friday to a state elections panel's action, which disqualifies him from the August primary ballot.
Johnson's suit requests expedited consideration and alleges the Michigan Board of State Canvassers failed in its "clear legal duty" to check each challenged signature against the state's Qualified Voter File before disqualifying them as fraudulent. It asks the court to order the board to place Johnson's name on the ballot.
Johnson's suit also names as defendants Secretary of State Jocelyn Benson and Elections Director Jonathan Brater.
Late Friday, the court ordered the parties to submit their legal briefs Tuesday and said it would decide the case without hearing oral arguments.
More lawsuits are expected from up to three of the four other Republican candidates for governor who were kept off the ballot. Those candidates are former Detroit Police Chief James Craig, Byron Center businesswoman Donna Brandenburg, and Grand Haven financial adviser Michael Markey. A fourth candidate, Michigan State Police Capt. Mike Brown of Stevensville, has withdrawn from the race and said he will not go to court.
The lawsuits will test a section of Michigan election law related to disqualifying signatures on candidates' nominating petitions as a result of fraud for which there is little case law.
The action by Johnson, a self-described "quality guru," follows a series of 2-2 deadlocks, along partisan lines, at the Michigan Board of State Canvassers on Thursday. The tie votes had the effect of leaving five Republican candidates for governor off the August primary ballot, based on determinations by Bureau of Elections staff that too many of the signatures each of them submitted with their nominating petitions were forged.
Elections staff found names of dead voters, voters who no longer lived at the address listed, multiple names clearly written in the same handwriting, and evidence of "round tabling" or "round robining," in which multiple circulators pass around sheets, taking turns signing names so that the handwriting and ink does not match, according to reports released Monday.
The candidates blame hired signature collectors for the fraud, but also say state elections staff should not have discarded all signatures those circulators submitted. Instead, they should have checked each signature against the Qualified Voter File and only thrown out those signatures that did not match, lawyers for some of the candidates, plus the Michigan Republican Party, argued Thursday before the board.
Election staff and the two Democratic board members countered that the onus is on candidates to vet signatures before submitting them. The presumption that signatures are valid is forfeited when a signature circulator intentionally commits fraud, they said.
"Yesterday the Board of Canvassers deadlocked 2-2 with Republicans voting to put us on the ballot and the Democrats voting with the Democrat Secretary of State (Jocelyn Benson) to deprive us of ballot access," Johnson said in a news release.
"It was very clearly stated that the Secretary of State’s office violated the law in refusing to check 61,000 signatures. Their lack of adequate staffing is no excuse to break the law and deprive us of our rights."
Michigan election law states, in part, that after the Board of State Canvassers determines that a petition circulator has knowingly and intentionally made a false statement in a certificate on a petition, it may "disqualify obviously fraudulent signatures" on the petition form on which that violation occurred.
The board never made that finding at Thursday's meeting, and that specific question was never put to a vote. Staff from the Bureau of Elections made that determination. That finding was the basis for the motions to disqualify the five gubernatorial candidates. The board deadlocked on those motions.
John Pirich, a veteran Lansing election law attorney, said Friday it is "technically true" that the statute calls for a board finding, but that in practice the board frequently functions less formally. He said he does not see that as a problematic legal issue, because the 2-2 deadlock merely preserved the status quo, with Johnson and the other candidates off the ballot.
"The board did not take an action one way or the other," Pirich said.
Based on their public statements, even the two Republican members of the Board of State Canvassers agree that fraud by petition circulators occurred. Tony Daunt, a Republican member, said he voted against disqualifying the candidates because he was not comfortable with removing all signatures connected to a circulator connected with fraud, without first checking each signature individually.
There is a further legal question at issue.
Even if the board had made such a finding, the law does not explicitly say it can disqualify all signatures collected by a circulator or circulators who made false statements, as Bureau of Elections staff did. It says the board can disqualify "obviously fraudulent" signatures, without first having to check the signatures against the Qualified Voter File.
Unless one takes the position that all signatures submitted by a circulator who has committed fraud are thereby obviously fraudulent, the language of the statute could suggest that each signature would at least have to be individually examined for signs of fraud.
This article originally appeared on Detroit Free Press: Perry Johnson sues over being left off Michigan governor ballot