Judge extends filing deadline for Mich. candidates, allows electronic signatures

Beth LeBlanc
The Detroit News

A federal judge has loosened Michigan's requirements for candidates seeking to appear on the August primary ballot, overriding Gov. Gretchen Whitmer's refusal to extend the deadline because of her stay-home executive order. 

Detroit U.S. District Judge Terrence Berg ruled Monday that candidates who were collecting signatures to qualify for the ballot can submit 50% of the required number of signatures by 5 p.m. May 8 instead of the Tuesday deadline the state had insisted on. 

Berg, an appointee of former President Barack Obama, also ordered Director of Elections Jonathan Brater to develop rules within 72 hours to collect and submit ballot petition signatures electronically. 

"The broader public interest is not served by preserving the current signature-gathering scheme at the cost of encouraging more candidates and their supporters to risk their health and criminal penalties to gather signatures," Berg wrote in his granting of a preliminary injunction.

Secretary of State Jocelyn Benson's office is still reviewing the decision, but does not believe it applies to ballot question signature collections or candidates who can pay a fee in lieu of signatures, said spokesman Jake Rollow.

Eric Esshaki, Republican candidate for the U.S. House

U.S. House candidates such as Eric Esshaki, a Republican candidate for Michigan’s 11th District, had until Tuesday to collect and file 1,000 signatures from registered voters to have their names appear on the Aug. 4 primary ballot.  

“Since March 23, 2020, traditional door-to-door signature collecting has become a misdemeanor offense; malls, churches and schools and other public venues where signatures might be gathered have been shuttered, and even the ability to rely on the mail to gather signatures is uncertain — if not prohibitively expensive,” Berg wrote.

Judicial candidates have their own petition thresholds to hit, which vary depending on what office the candidate is seeking. Two non-incumbent candidates for judge recently joined Esshaki's lawsuit. 

Most state House candidates pay a nominal filing fee in lieu of signatures and would not be overly affected by the decision.

Whitmer's stay-home orders triggered by the coronavirus pandemic have made it difficult to collect those signatures in the usual places, such as outside grocery stores, rallies, churches or malls. 

“Yet, the state insists on enforcing the signature-gathering requirements as if its Stay-at-Home Order responding to the ongoing pandemic had no impact on the rights of candidates and the people who may wish to vote for them,” Berg said. 

The state’s insistence on the Tuesday deadline while enforcing the stay-home order “operate in tandem to impose a severe burden on plaintiff’s ability to seek elected office," he wrote. 

Those pressures violate Esshaki’s freedoms of speech and association as well as equal protection and due process, Berg said. 

The judge ordered the state to design an electronic signature system "that is as 'user friendly' as possible to maximize its efficacy."

"For example, such procedures should allow for the use of a digital copy of a real signature whether created by scanner or by a digital photograph, assuming that the signature is appropriately witnessed," Berg said.

Esshaki celebrated his "defeat" of Whitmer and Democratic Secretary of State Jocelyn Benson's "efforts to stifle democracy" in a statement Monday. 

“Today was a victory for protecting our constitutional rights," Esshaki wrote. "It was a direct rebuke against Gov. Whitmer’s partisan actions seeking unlimited power.”

Former Secretary of State Ruth Johnson, now a Republican state senator from Holly, said Friday that candidates for 20 judgeships could have been excluded from the ballot if the state held fast to the Tuesday deadline. 

"The governor is doing this for a very self-serving reason because she knows if none of these judicial candidates are able to file she gets to appoint them all," Johnson said in an email. "That's not right!"

Whitmer's office called the allegation absurd. 

"The only person playing politics with this issue is Sen. Johnson. The governor is focused on saving lives," Whitmer spokeswoman Tiffany Brown said. 

Whitmer said she wouldn't use her powers to alter the deadline or requirement to make it on the primary ballot.

 "We know that these deadlines are critical in terms of keeping our elections on schedule," the Democratic governor said during Friday's press conference.

At a press conference more than a week ago when asked about the issue, Whitmer said her administration officials were "having an internal conversation on that" and promised that officials would share more in the "coming days." She didn't volunteer anything about her candidate filing decision until asked by a reporter at Friday's press conference.

In response to Whitmer's statement, Benson tweeted that she fully supports the "decision not to extend Michigan’s candidate filing deadline."

As of 6 p.m. Friday, two U.S. Senate candidates — U.S. Sen. Gary Peters, D-Bloomfield Township, and Republican John James of Farmington Hills — and 34 U.S. House candidates — including 12 incumbents running for re-election — had filed signatures, according to state records.

Esshaki, a registered nurse and lawyer, had collected only 700 of the required 1,000 signatures because of the stay home order. The Republican is seeking to run against incumbent Democratic U.S. Rep. Haley Stevens, D-Rochester Hills. 

Republican Whittney Williams, one of two other GOP candidates in the district who have filed signatures, has argued the deadline shouldn't be changed.