Judge: Mich. must accept independent AG hopeful's petition

Beth LeBlanc | The Detroit News

Lansing — Another candidate is on track to enter the Michigan attorney general race following a federal judge's order Monday, and his presence on the ballot could tip the scales in what's expected to be a tight race between Republican Tom Leonard and Democrat Dana Nessel.

U.S. District Judge Victoria Roberts ordered state elections officials on Monday to accept former federal prosecutor Chris Graveline’s filing, find it complete and then determine the validity of the signatures in time to place him on the November ballot. Roberts, a 1988 appointee of President Bill Clinton, called the 30,000-signature requirement keeping Graveline off the ballot "completely arbitrary."

“…the status quo in Michigan dishonors Plaintiffs’ constitutional rights to ballot access and a wide latitude in their choice of public officials; to freely associate and advance their political beliefs; and to cast their votes meaningfully and effectively,” Roberts wrote in her ruling.

The judge's decision allows voters to consider a third nonpartisan option for an office that Graveline argues has been used as a platform to push partisan agendas.

"This law has cemented into place a political sphere where the parties only have to speak to their bases and don’t have to worry about putting up candidates that speak to the broader middle," Graveline told The Detroit News.

The former federal prosecutor filed a lawsuit against state election officials in late July after they failed to accept his qualifying petition for attorney general on July 19 because he had collected 14,157 of the 30,000 signatures required of no-party contenders. The signatures had to be gathered within a 180-day period and turned in 110 days ahead of the general election.

In his lawsuit, Graveline argued the requirement “is one of the highest in the country and functions as an absolute bar that excludes independent candidates from competing for statewide office.”

Since Michigan enacted the current electoral policy in 1988, “not a single independent candidate has qualified for the ballot for a statewide office (governor, lieutenant governor, attorney general, or secretary of state),” his lawyers wrote in the lawsuit.

What it means in race

Graveline's candidacy has posed a potential threat to Nessel, who won endorsement at a Michigan Democratic Party convention in April. House Speaker Leonard this past weekend won the Republican nomination. Lisa Lane Gioia, of West Bloomfield, won the Libertarian nomination for attorney general.

Former U.S. Attorney Barb McQuade initially backed former Grand Rapids U.S. Attorney Pat Miles in the Democratic race and then endorsed Graveline until he ran into the ballot qualification issue.

McQuade has subsequently endorsed Nessel "because it is important that our next AG is someone who will use that office to protect the residents of Michigan, as I know Dana will."

McQuade did not return a call or email Monday seeking comment.

Graveline is sure to affect the race, but until he starts campaigning in earnest, it's not clear whether he'll pull more votes from Nessel or from Leonard, said David Dulio, chairman of the political science department at Oakland University.

"I don’t know that we have anything else to go on at this point to show the true impact of this candidate getting involved in the race other than the McQuade endorsement," Dulio said.

Nessel's campaign did not return an email seeking comment, but previously belittled Graveline's lawsuit as a display of "unmitigated hubris and arrogance."

The election for attorney general is too important for the Democratic Party to sacrifice potential votes for Nessel to an independent candidate, said Susan Demas, a Democratic consultant and vice president of Farough and Associates. Demas wondered who was behind Graveline’s sudden entrance into the attorney general race.

“He’s not going to win the election, but he could draw enough votes from Nessel to put Leonard in office,” Demas said. “That’s wholly unacceptable to me as a progressive.”

Graveline said he did not enter the race at the behest of anyone and is confident of the experience, skills and leadership he brings to the race.

"I think they’re underestimating my ability to win this race," Graveline said.

Federal judge's ruling

In granting a preliminary injunction to Graveline, Roberts sided with an expert in Graveline’s lawsuit who determined that “5,000 signatures can satisfactorily demonstrate a sufficient level of community support for a candidate for statewide office in Michigan.” She said the 30,000-signature threshold requirement is "completely arbitrary."

Her ruling was based in part on the state’s failure to address adequately the arguments contained in the lawsuit. They included the unfair burden on Graveline; the impact on voters deprived of an independent choice; and Michigan's 30-year history without an independent candidate for statewide office, which Roberts called “a reliable indicator of the unconstitutionality of Michigan’s statutes.”

The goals of the signature requirements — to guarantee independent candidates have a “modicum of support” and to limit the number of candidates so as to avoid voter confusion — don’t justify their “reach and breadth,” Roberts said.

“Although Graveline was a reasonably diligent candidate, he was unable to satisfy all the statutory requirements,” Roberts wrote. “Because independent candidates for statewide office have never qualified for the ballot under Michigan current regulations — let alone qualified with some regularity — the Court finds that the state’s election laws ‘operate to freeze the political status quo,’ and effectively bar independent candidates from accessing the ballot.”

Independents should be afforded more protection than even third party candidates, Roberts wrote, because they “are responsive to emerging issues and less likely to wield long term or widespread governmental control."

The ruling was well-reasoned and grounded in settled precedent regarding ballot access, which establishes requirements such as those in Michigan as a "severe burden" on candidates, said Oliver Hall, one of Graveline's lawyers and founder of the Center for Competitive Democracy.

"Michigan really doesn’t have any legitimate interest in imposing such a high signature requirement,” Hall said, adding that he is confident Graveline had at least 5,000 valid signatures.

Spokespersons with the offices of Secretary of State Ruth Johnson and Attorney General Bill Schuette said the departments are reviewing the order.

Lt. Gov. Brian Calley weighed in on the issue with a tweet Monday afternoon, calling the decision bizarre and questioning the order's disregard for the lawmaking process.

“The rules of ballot access in Michigan are a matter of Michigan law, and the federal judiciary especially is over-reaching in this case," Calley said in a subsequent email to The News.

The state had noted that Ralph Nader filed enough signatures to make the ballot as an independent and unaffiliated presidential candidate in 2004. Partisan gubernatorial candidates are required to file 15,000 signatures to make the primary ballot, but two filed the maximum 30,000 instead.

“Demonstrating the support of 30,000 people to run in a race in which more than 3 million voters will participate should not be a high hurdle to clear for a candidate with enough support to win,” Secretary of State spokesman Fred Woodhams told The Detroit News in July. “Other no-party affiliation candidates have done it and partisan candidates regularly come close even when they don’t have to.”

eleblanc@detroitnews.com

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