Ann Arbor, Michigan Republicans — August 2, 2013 at 7:08 am

Washtenaw County Clerk refuses to obey “unconstitutional” GOP law regarding factuality of recall petitions


“This new scheme flies in the face of the Constitution.”

Washtenaw County Clerk Larry Kestenbaum is rather legendary in the Ann Arbor area for his incredible grasp and deep understanding of Michigan election law. He is passionate about it, in fact. Which has led him to being put in a rather interesting situation this week.

Six out of the seven Ann Arbor school board members are facing a recall by a Jody Huhn of the group Ann Arbor Public Schools Parents for Change. Huhn lists the following reasons for recall on her petition:

  • Failure to demonstrate thoughtful consideration of constituent priorities.
  • Failure to demonstrate transparency in decision making.
  • Failure to demonstrate cohesive and singular direction as evidenced by consistent split voting.
  • Failure to provide sufficient backing and support for district superintendent position as evidenced by high turnover rate averaging 2.25 years per term.

Because of a new law passed by Michigan’s Republican legislature last year during their legendary “inflamed duck” session, Public Act 417 (pdf), the board of county election commissioners must evaluate the recall petition and determine whether or not the reasons given for the recall are “factual”.

The board of county election commissioners…shall meet and shall determine whether each reason for the recall stated in the petition is factual and of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall. If any reason for the recall is not factual or of sufficient clarity, the entire recall petition shall be rejected. Failure of the board of county election commissioners to meet as required by this subsection shall constitute a determination that each reason for the recall stated in the petition is factual and of sufficient clarity to enable the officer whose recall is being sought and the electors to identify the course of conduct that is the basis for the recall.

Prior to this, recall petitions were only required to be clear enough to understand (and, of course, have the right font size.) The new law is intended to make recalls much more difficult and this attempt to recall the six Ann Arbor school board members is the first recall since the law was passed since it requires waiting six months after the officials take office before a recall can be initiated.

This is where Larry Kestenbaum comes in. As the County Clerk, Kestenbaum is one of three people on the board of county commissioners in Washtenaw County. He has come to the conclusion that PA 417 is “unconstitutional on its face” and “flies in the face of the Constitution”. Therefore, he is refusing to review the petitions in regards to their factuality.

Here is Kestenbaum’s most-awesome statement on the matter (emphasis mine):

The Michigan constitution sets up the basic process for recalls of public officials. Article II, Section 8, provides as follows:

Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.

For emphasis, I’ll repeat that final sentence, in three parts

  • The sufficiency of any statement of reasons or grounds,
  • procedurally required,
  • shall be a political rather than a judicial question.

In plain language, the people have the power to remove a politician from office. The submission of reasons for recall is a procedural, and not a substantive matter. And the targeted official may not impose delay by contesting whether those reasons for recall are “good enough”.

When a citizen is aggrieved with a state or local elected official, he or she submits a text which outlines the reasons the official should be removed. The county election commission reviews this text for clarity. If the text meets this minimal standard, the petitioner may proceed to collect signatures to force a recall election.

However, late last year, the Legislature changed this process by enacting Act 417 of 2012.

Under the new law, the county election commission is also charged with determining whether the proposed reasons for recall are “factual”.

Little guidance is offered for what constitutes factuality, and how the commission is supposed to decide this.

Presumably, the commission would have to take a position on the truth or falsity of the charges offered.

Moreover, Act 417 provides that, if the commission determines the reasons for recall to be “factual,” the targeted officeholder may contest this finding in court, and prohibits the collection of signatures while the case is pending.

This new scheme flies in the face of the Constitution.

The sufficiency of reasons for recall is a political question. It is specifically not a judicial question.

If the election commission and the courts can determine the truth or falsity of reasons for recall, then the power to judge these questions has been removed from the people.

I conclude, therefore, that the new requirement of “factuality” in recall language is unconstitutional on its face.

I took an oath to uphold the state constitution. I cannot in good conscience follow this provision of Act 417, which directly contradicts that constitution.

Accordingly, as a member of the Washtenaw County Election Commission, I will continue to review proposed recall language only for clarity.

I respectfully decline to review any recall language for “factuality.”

I will oppose any motion which purports to rule whether or not a proposed recall text is “factual”.

The Election Commission is not a court. It should not hold evidentiary hearings or take testimony under oath on the issue of whether proposed recall language is “factual”. I will oppose any attempt to do so.

The Washtenaw County Election Commission will meet at 1:00 pm today, Thursday, August 1, at the Board of Commissioners Room, 220 N. Main Street, Ann Arbor.

The main agenda item is the proposed recall of members of the Ann Arbor school board.

This is the first recall petition since the enactment of Act 417, and our first opportunity to respond to this new legal environment.

Lawrence Kestenbaum
Washtenaw County Clerk & Register of Deeds

I am in complete support of Larry Kestenbaum in his effort to push back against Republicans who aren’t interested in having people actually participate in democracy as spelled out in the constitution. I’m not a huge fan of recalls and, in this particular situation, I have a friend who is one of the six board members being targeted. However, recalls are one way for citizens to have a voice in the democratic process, a voice that is protected by the state constitution, and Larry Kestenbaum is spot-on in his assessment.

State House Representative Jeff Irwin concurs:

Unfortunately, a majority of the legislators during lame duck supported a series of self-serving amendments to the recall statutes. Hats off to my County Clerk Lawrence Kestenbaum for taking on the law’s subjective “factuality” requirement. Legislators added in that requirement so that, combined with time limitations and new balloting rules, a recall of a State Representative is almost impossible.

Here’s how it works. The citizens – the people we’re supposed to be working for – have to wait at least 6 months before initiating a recall petition. Then, they have to submit language that is both clear and factual. County officials already tied themselves in knots trying to ascertain whether these petitions were “clear.” Now, they have to also determine that the reasons stated for recalling the official are “factual.” That strings out the process again, often involving court proceedings. By the time all of this happens, a two-year term is over.

As it turned out, at yesterday’s hearing, the petitions were rejected due to clarity issues on a 3-0 vote. The elections board didn’t even consider the factuality issue. One of the three election board members tried to get the group to go on the record as stating that the petitions were not factual but, as promised, Kestenbaum refused to weigh in on that matter and the proposal died due to lack of support.

I suspect that Larry Kestenbaum is not done with this issue and we can expect it to come up again. Here’s hoping it does.