Ingham Circuit Court Judge Clinton Canady is expected to rule by the end of the week on whether or not officials should move ahead with the Nov. 8 recall election for Michigan House Education Committee Chair Paul Scott, R-Grand Blanc.
Even commenting on condition of anonymity, Lansing political insiders who are supposedly “in the know” about such things don't agree on what's going to happen. Some claim the chances are better than 75 percent that the election won't take place. Others still say the chances are 50-50.
Last Thursday, the Michigan Court of Appeals sent the recall case back to Judge Canady, ordering him to change his September ruling, in which he rejected Rep. Scott's motion asking for an injunction to stop the election from going forward. If it seems late in the process for deciding whether or not the recall election will take place; that's because it is.
In fact the Oct. 6 court action took place after absentee ballots had already been sent out for the election and after the campaigns on both sides of the issue had started spending money – although not nearly as much money as will likely be spent if the election isn't postponed or canceled.
So what happens to the absentee ballots already cast if the Nov. 8 election doesn't take place?
“They just won't count them,” said, Bob LaBrant, general counsel for the Michigan Chamber of Commerce, which has already spent money in the election on Rep. Scott's behalf. “I think the chances that the judge would now go ahead and order the injunction are pretty remote. But then there is the question of what happens with further appeals. In the end the remedy could be to postpone the election to Feb. 28."
If the election were postponed to Feb. 28, that would work tremendously to Rep. Scott's advantage. The Michigan Republican presidential primary is scheduled to take place that day.
Capitol Confidential asked LaBrant if he remembered any situation where the courts had taken such a long time to finally act on an issue involving an election.
“Only in Florida back in 2000,” LaBrant quipped.
Inside Michigan Politics Editor Bill Ballenger said he doesn't believe there are any examples in Michigan history where the courts stepped in this late and canceled or postponed an election of this type.
“Not a recall election,” Ballenger responded. “There's never been anything like this where the courts have yanked an election off the ballot this late. Apparently there are about 3,000 absentee ballots already out there.
“Back in the early 1980s the courts postponed an August primary for about a week because of a late change to reapportionment,” Ballenger continued. “I remember, because I was a candidate at the time, and people weren't even sure what district they were in. But there hasn't been anything like what might be happening in this recall election. For one thing, Michigan has never had very many recall elections involving legislators to begin with.”
Ballenger said he sees three possible scenarios for what the courts might end up doing.
“They'll either end up going ahead with the recall election on Nov. 8, end up canceling it, or postpone it until Feb. 28,” Ballenger said. “So, right now it's a three-way jump ball. I really don't know what's going to happen.
“My understanding is that the Genesee County Clerk claims that they could go ahead with the election as long as they know for sure by Oct. 25,” Ballenger added. “ But the question is, how long would the appeals take? If it gets too close to the election date and it hasn't been resolved . . . they might just have to postpone it.”
Political Consultant Steve Mitchell of Mitchell Communications in East Lansing refused to criticize the courts for their handling of the case.
“I think we all know that our judicial process can be complicated and messy sometimes,” Mitchell said. “What's really giving the whole system a black eye right now are these recall efforts the MEA has been launching everywhere.”
Meanwhile, Ari Adler, spokesman for House Speaker Jase Bolger, R-Marshall, said his caucus can't afford to assume the courts will step in and stop the recall election.
“I think we have to take the safest course, which is to move ahead on the assumption that the election will take place on Nov. 8 and Paul Scott will be triumphant,” Adler said.
Adler wouldn't comment on whether the late court action made the process look bad. However, he did say that he thought it could have been avoided.
“It would have been nice if the judge had ruled in accordance with the law in the first place,” he said.
A different perspective came from Democratic political consultant Mark Grebner, president of Practical Political Consulting, who was instrumental in gathering the signatures for the recall.
“I think what we're seeing now is that the Republicans have finally decided to get together and help out their friend Paul Scott,” Grebner said. “I mean they control everything, the executive office, the Legislature and so on. Let's face it, right now being a Democrat in Michigan isn't a very smart career move.
“If you follow Scott's claims about the appeal process to their logical conclusion, you're basically saying we really can't have recalls in Michigan,” Grebner added. “ That's OK if you don't want to have any recalls in Michigan, but if you do; it doesn't make any sense. I suppose in the end you could finally get a lawmaker's name on the ballot after they're retired and have a few grandchildren.”
Back on July 27, Rep. Scott asked the Genesee County Circuit Court to rule on the clarity of the recall petition language. The petition drive went forward even though the court hadn't ruled. The next step in the court process was in Ingham County Circuit Court, where Rep. Scott's attorneys argued before Judge Canady that when the Secretary of State accepted the recall petitions to place his name on the Nov. 8 ballot, Rep. Scott was being denied due process. They claimed that the petition drive should have had to wait until all of his appeals on the petition language had been exhausted and, therefore, the State Bureau of Elections shouldn't have accepted the petitions.
At the time, it was believed that Rep. Scott's arguments had an even chance of prevailing in court. In September, Judge Canady ruled that although Rep. Scott's legal point might have some technical validity, he wouldn't have likely won the case on its merits.
In its order last week, the Michigan Court of Appeals basically told Judge Canady he couldn't reject Rep. Scott's motion based on the argument that he wouldn't have likely won on the merits. Judge Canady, however, could still come up with another reason.
“There are several issues a judge could use to deny a motion for an injunction,” LaBrant said. “Basically Scott's attorneys would have to prevail on all of those.”
In his statement at the time, Judge Canady said at one point: “ . . . since we will be moving on to another court pretty soon . . .” But after weeks went by with no new court developments, virtually all interested parties moved ahead assuming the election would take place.
The three-judge Court of Appeals panel that sent the case back to Judge Canady consisted of Judges Donald Owens, Peter O'Connel, and Michael Kelly. It was a 2-1 decision with Kelly dissenting.
Because Lansing is the state capital is located in Ingham County, the Ingham County Circuit Court is often involved with issues of statewide significance. Judge Canady has been an Ingham County Circuit Court judge less than a year. In 2010 he was elected to replace Judge James Giddings, who retired due to mandatory judicial age limits.
Judge Canady's brother Alan was chief of staff for the Senate Democratic Caucus from 1998 to 2000 and chief of staff for the House Democratic Caucus from 2001 to 2005.
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Michigan Capitol Confidential is the news source produced by the Mackinac Center for Public Policy. Michigan Capitol Confidential reports with a free-market news perspective.