2:14-cv MFL-PJK Doc # 34 Filed 05/23/14 Pg 1 of 28 Pg ID 996 REVIEW OF APPEALS OF WAYNE COUNTY CLERK S DETERMINATION

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1 2:14-cv MFL-PJK Doc # 34 Filed 05/23/14 Pg 1 of 28 Pg ID 996 REVIEW OF APPEALS OF WAYNE COUNTY CLERK S DETERMINATION Congressman John Conyers, Jr. Candidate for U.S. Representative in Congress, 13 th District May 23, 2014 Two appeals were filed concerning the Wayne County Clerk s official determination that Congressman John Conyers, Jr. s nominating petition contained an insufficient number of valid signatures. The first appeal was filed by Rev. Horace Sheffield and Richard Jones on May 14, 2014; the second appeal was filed by Congressman Conyers on May 16, NUMBER OF VALID SIGNATURES REQUIRED: 1,000. TOTAL FILING: 2,000 signatures, excluding excess of 27 signatures over maximum number authorized. MCL f. CONCLUSION: The Secretary of State finds that Wayne County Clerk Cathy Garrett correctly determined that Congressman Conyers failure to submit a minimum of 1,000 valid signatures renders him ineligible to appear on the August 5, 2014 primary election ballot. CONYERS APPEAL: Congressman Conyers seeks a complete review and reversal of the signatures improperly discarded by the Wayne County Clerk[,] based on his assessment that the circulator registration requirement of MCL c(3) is unconstitutional. Under that provision, (3) At the time of circulation, the circulator of a petition shall be a registered elector of this state. At the time of executing the certificate of circulator, the circulator shall be registered in the city or township indicated in the certificate of circulator on the petition. Secretary of State Review. The Bureau of Elections completed a thorough review of the entire Conyers petition filing as permitted by law, which included: A full face review of every petition sheet; A voter registration status check and verification on all petition signers; A complete review and verification of all petition signatures rejected by Wayne County; and A complete review and verification of the registration status of every petition circulator. Based on this review, the final totals listed in this report differ from the findings of Wayne County, primarily due to the discovery of an additional four circulators who were registered to B U R E A U O F E L E C T I O N S R IC H A R D H. A U S T I N B U I L D I N G 1 S T F L O O R W. A L L E G A N L A N S I N G, M I C H I G A N w w w. M i c h i g a n. g o v / s o s ( )

2 vote at 2:14-cv MFL-PJK the time of circulation, but not Doc in # the 34 city Filed or township 05/23/14 indicated Pg 2 in of the 28 Certificate Pg ID 997 of Circulator (See Section II below). Pending litigation. In addition to filing an administrative appeal with the Secretary of State, Conyers filed suit against the Secretary and others in the federal District Court for the Eastern District of Michigan challenging the constitutionality of MCL c(3). Moore v. Johnson, USDC-ED No. 2:14-cv Summary. As of this writing, while Conyers constitutional claims remain pending before the District Court, the Secretary of State must enforce the circulator registration requirement as written. As a result: 1. All signatures gathered by circulators who were registered to vote at the time of circulation in the city or township indicated in the Certificate of Circulator are valid, unless discounted for other reasons. 2. All signatures gathered by circulators who were registered to vote at the time of circulation, but not in the city or township indicated in the Certificate of Circulator, are invalid. 3. All signatures gathered by circulators who were not registered to vote at the time of circulation are invalid. Introduction. The Michigan Election Law is designed to protect the purity of the ballot access process. The laws governing this activity place affirmative duties on petition circulators. As evidenced over the past two election cycles, when campaigns fail to comply with the law by executing basic principles of petition circulation, they create their own ballot access crisis when their failures are discovered by or brought to the attention of election officials. In this instance, consultant Steve Hood freely admitted that he failed to ensure that the petition circulators he hired to work on Conyers campaign were registered to vote. 1 Sections II and III below are prime examples of the failure to follow the basics, something that thousands of campaigns routinely do each election cycle. I. All signatures gathered by circulators who were registered to vote at the time of circulation in the city or township indicated in the Certificate of Circulator are valid, unless discounted for other reasons. 2 Thus, the Secretary of State has counted all otherwise valid signatures gathered by the following circulators: Yvette McElroy Anderson Maurice Barrett Berline Brown Ulanda Caldwell Florence Chambers Monica Conyers Jacinta McCarver Vernando Miree Anthony Moore Edith Turner Brenda L. Ward Marlita Washington 1 See Attachment 1, Detroit consultant says he didn t check voter status of Conyers petition circulators, Detroit News, May 14, Other defects that may render a signature invalid include an incorrect or incomplete address, a signer who is not registered to vote in the 13 th Congressional district, incorrect or incomplete date entry, etc. 2

3 2:14-cv MFL-PJK Julian Douglas Doc # 34 Filed Mamie 05/23/14 Weathersby Pg 3 of 28 Pg ID 998 Dameon Fentress Kenneth Wimberly Patrick Jackson Frank D. Woods Jr. Sanqustine Latham In addition, the Secretary of State has counted all otherwise valid signatures collected by Davena Hogan, whose voter registration record was erroneously updated earlier this year and subsequently corrected after Wayne County completed its canvass of Conyers nominating petition. However, all signatures gathered by Jamal Gooden and Simone Twiddy are invalid despite the fact that they are both registered to vote in the jurisdiction provided in the Certificate of Circulator, due to other defects on the petition. 3 In all, this category yields 455 valid signatures for Congressman Conyers. II. All signatures gathered by circulators who were registered to vote at the time of circulation, but not in the city or township indicated in the Certificate of Circulator, are invalid. Under current law, circulators are required to correctly identify and disclose the city or township in which they are registered to vote. MCL c(3) ( At the time of executing the certificate of circulator, the circulator shall be registered in the city or township indicated in the certificate of circulator on the petition. ). Legislative history of the disclosure requirement. This second sentence of MCL c(3) is a disclosure requirement and was enacted by Public Act 329 of 1990, effective December 21, 1990, in reaction to Messerli v Board of State Canvassers, 4 an unpublished opinion of the Michigan Court of Appeals issued June 21, 1990, which held that despite a circulator s failure to list the precise city or township in which he was registered to vote, the petition was in substantial compliance with MCL c. Within six months, Public Act 329 of 1990 was enacted, vitiating the argument that a circulator who writes the wrong jurisdiction of registration has substantially complied with the Michigan Election Law. Significance of the disclosure requirement. The circulator s city or township of registration is significant, not superfluous as Conyers contends, 5 in that it enables election officials to contact a circulator if questions arise regarding the validity or genuineness of the signatures appearing on the petition. This is particularly important given the relatively short interval of time between the filing deadline and the deadline to certify the list of candidates who are eligible to appear on the ballot, as well as the 7-day deadline for filing challenges against a candidate s nominating petition. For example, there are 1,134 individuals who share the name James Smith and are registered to vote in Michigan. 6 It would be virtually impossible to ascertain which James Smith executed a particular petition as circulator if the requirement to disclose the correct jurisdiction of registration was unenforceable. 3 Gooden failed to execute the Certificate of Circulator on one sheet and failed to provide his complete street address on another. Twiddy wrote the names of two different jurisdictions in the Certificate of Circulator. 4 See Attachment 2, Messerli v Board of State Canvassers, Court of Appeals Dkt No (unpublished opinion). The Supreme Court declined to hear the case on appeal. Messerli v Board of State Canvassers, lv den, 435 Mich. 858 (1990). 5 Conyers Appeal to the Secretary of State, p Other common names include Michael Smith (1,130 registered statewide), Robert Smith (1,024), David Smith (974), James Johnson (838), Robert Johnson (836), Michael Johnson (809), Mary Smith (755), David Johnson (680), and William Smith (669). For example, using the name of one of Conyers circulators, there are 128 individuals named Anthony Moore who are registered to vote in the State of Michigan, 30 of them are registered in the City of Detroit alone. 3

4 2:14-cv MFL-PJK Doc # 34 Filed 05/23/14 Pg 4 of 28 Pg ID 999 The requirement that the circulator must disclose his or her jurisdiction of registration is akin to the requirements imposed on a notary public, who must register with the Secretary of State by providing his or her residence and business addresses and other identifying information. 7 One reason why a notary public must disclose an address is so that the Secretary of State can promptly contact the notary in the event that a complaint arises or an investigation is necessary. 8 Circulators who did not comply with the disclosure requirement. The following petition circulators were registered to vote at the time of circulating Conyers petition, but in a different jurisdiction than the one they identified in the Certificate of Circulator: Name City / Township indicated in Certificate of Circulator City / Township where Registered to Vote at time of circulation Cassandra Johnson Wayne Detroit Tyshay Jones Highland Park Detroit Quinisha Peterson Wayne Pontiac Charlotte Richardson Farmington Farmington Hills Chinita Terry Detroit Oak Park Circulator Chinita Terry. One circulator in particular, Chinita Terry, filed a declaration that her address for voter registration purposes was mistakenly changed by the Secretary of State when she attempted to provide an alternate mailing address because she had been the victim of mail theft, 9 rendering all of the signatures she collected invalid. However, Terry s Qualified Voter File (QVF) record indicates that she has changed her address at various Secretary of State branch offices 8 times since June 2003, including 7 times in the past 7 years. 10 Registration Date Chinita Terry City / Township in which Registered to Vote 2002 Detroit June 10, 2003 West Bloomfield None February 20, 2007 Detroit None December 11, 2007 West Bloomfield None January 22, 2008 Detroit Voting History 2002 August state primary 2002 November state general 2008 August state primary 2008 November state general 2009 May city election 2009 August city primary 2009 November city general 2010 August state primary 2010 November state general 2012 February presidential primary 7 MCL (1). 8 MCL , 299, Conyers Appeal to the Secretary of State, Exhibit 13, Declaration of Chinita Terry. 10 See Attachment 3, Change History for Chinita Ann Terry. 4

5 2:14-cv MFL-PJK City Doc / Township # 34 Filed in 05/23/14 Pg 5 of 28 Pg ID 1000 Registration Date which Registered to Vote Voting History June 4, 2012 Oak Park 2012 August state primary 2012 November state general April 26, 2013 Detroit 2013 November city general February 25, 2014 Oak Park None May 14, 2014 Detroit N/A Three items merit note with respect to Terry s address history. First, when Terry changed her address at the Secretary of State branch office on February 25, 2014, she signed a voter registration application 11 that included the following certification statement: I am a citizen of the United States. I am a resident of the State of Michigan and will be at least a 30 day resident of my city or township by election day. I will be 18 years of age by election day. I authorize cancellation of any previous registration. The information I have provided is true to the best of my knowledge under penalty of perjury. If I have provided false information, I may be subject to a fine or imprisonment or both under Federal or State laws. (Emphasis added). Although Terry claims that [w]hen I asked the Secretary of State to change my mailing address, I never intended for my voter registration address to change[,] 12 in the declaration that Conyers appended to his appeal to the Secretary of State, Terry s declaration is plainly contradicted by the voter registration application she executed on February 25, In fact, according to Secretary of State branch office documents, the very first time Terry attempted to add a mailing address to her record was on May 14, Second, in accordance with MCL (3), the Oak Park City Clerk s office mailed voter identification cards to Terry on two separate occasions, on or about March 3, 2014 and April 15, 2014, 13 neither of which were returned undelivered to the Clerk s office. Thus, Terry was on notice that she was registered to vote in Oak Park. This is not the first time that Terry registered to vote in Oak Park. Third, at the August primary and November general elections held in 2012, Terry voted in Oak Park, where she was then registered to vote. 14 In sum, Terry is well aware of the process for effectuating a change in address for voting purposes, having frequently availed herself of it on numerous occasions. The Secretary of State therefore concludes that Terry knowingly registered to vote in Oak Park and therefore could not claim to be registered at the Detroit address while circulating Conyers petition. 15 Conclusion. Applying current law with respect to circulators Johnson, Jones, Peterson, Richardson, and Terry, all of whom are registered to vote yet failed to disclose the correct name of the jurisdiction in which they are registered, each of the 661 signatures they gathered are invalid. 11 See Attachment 4, Affidavit of Stephanie Sumner, p Conyers Appeal to the Secretary of State, Exhibit 13, Declaration of Chinita Terry. 13 See Attachment 4, Affidavit of Stephanie Sumner, See Attachment 4, Affidavit of Stephanie Sumner, p Terry collected 316 otherwise valid signatures and 153 invalid signatures, for a total of 469 signatures. 5

6 2:14-cv MFL-PJK Doc # 34 Filed 05/23/14 Pg 6 of 28 Pg ID 1001 III. All signatures gathered by circulators who were not registered to vote at the time of circulation are invalid. Current Michigan law mandates that all circulators of nominating petitions must be registered to vote in the State of Michigan. MCL c(3). A circulator s failure to register is a fatal defect that renders all signatures appearing on a petition he or she circulated invalid. Thus, all signatures collected by Alex Canty, Daniel Pennington, and Tiara Willis-Pittman have been discounted, due to the circulator s registration status. Two of these circulators, Pennington and Willis-Pittman, allegedly were registered to vote by Chinita Terry in December, Circulator Daniel Pennington. Pennington claims to have registered as a voter with the Michigan Secretary of State s office, located at East Twelve Mile Road, Warren, MI on December 13, 2013, the exact same day he also claims to have filled out a voter registration form, which I delivered to Chinita Terry. 16 Further, the Secretary of State record of his December 19, 2013 visit to the branch office indicates that he did not register to vote in conjunction with his request for a duplicate state personal identification card (not a duplicate driver s license as indicated in his Affidavit of Fact ). Although he claims to have received a receipt from the Secretary of State confirming the fact of my registration, which I subsequently misplaced[,] Secretary of State records confirm that he did not attempt to register during his December 19, 2013 visit to the Warren branch office and therefore could not possibly have been issued a receipt. See MCL a(2), w(1)(b) (requiring Secretary of State branch office employees to issue a receipt as proof of application). Instead, a photocopy of Pennington s voter registration application (dated December 13, 2013) was delivered to the Detroit City Clerk for the first time on April 28, but was improperly recorded as received on December 13, 2013 a clerical error that was promptly corrected. Before the error was discovered, Pennington asked for and received a receipt from the Detroit City Clerk that bore the erroneous December date. However, this receipt does not change the date of Pennington s registration and therefore does not make the signatures he collected valid. Further details regarding the April 28, 2014 transaction are provided in the Affidavits of Gina Avery and Alicia Brown. 18 Circulator Tiara Willis-Pittman. Like Pennington, Willis-Pittman claims to have filled out a voter registration application on December 13, 2013 and handed it to a woman doing voter registration. 19 In an earlier written statement, Willis-Pittman identifies the person who received her application as Chinita Terry. 20 Terry claims that she received the applications of Pennington, Willis-Pittman, and other unidentified individuals on December 13, 2013 at a voter registration fair, and to have delivered the forms to the Detroit City Clerk on December 16, Yet the 16 Conyers Appeal to the Secretary of State, Exhibit Under MCL x(a), An application for registration is considered to be received on or before the close of registration, if 1 of the following requirements is met: (a) An application is received at a department of state office, a designated voter registration agency, or the office of a county, city, or township clerk on or before the close of registration. Thus, Pennington s application is considered received on April 28, 2014, despite the earlier date of execution. 18 Attachment 5, Affidavit of Gina Avery and Attachment 6, Affidvit of Alicia Brown. 19 Conyers Appeal to the Secretary of State, Exhibit 4, Declaration of Tiara Willis-Pittman dated May 12, Conyers Appeal to the Secretary of State, Exhibit 4, Affidavit of Fact executed by Tiara Willis-Pittman on April 30, Conyers Appeal to the Secretary of State, Exhibit 2, Declaration of Chinita Terry. Neither Pennington, Willis- Pittman, or Terry describe the location of the voter registration fair or identify the sponsoring organization(s), making it impossible to verify their account. Furthermore, the disposition of the other voter registration application 6

7 Detroit 2:14-cv MFL-PJK City Clerk s office denies that Doc it # received 34 Filed Pennington 05/23/14 and Pg Willis-Pittman s 7 of 28 Pg ID applications 1002 until photocopies of these two forms were delivered on April 28, 2014, having confirmed that [a]fter a thorough search there is no documentation in [the Detroit City Clerk s] office to confirm that an original voter registration document was received by our office for either Tiara Willis-Pittman or Daniel Pennington on December 13, 2013, or any other date prior to April 28, Coupled with Terry s statements regarding her own registration status, her account regarding the alleged delivery of Pennington and Willis-Pittman s applications to the Detroit City Clerk on December 16, 2013 are of dubious value. Circulator Alex Canty. Canty was not registered to vote anywhere in Michigan at the time he circulated Congressman Conyers nominating petition. Conclusion. In sum, the Secretary of State finds that Pennington and Willis-Pittman were registered to vote on April 28, 2014, the date their applications were first delivered to the Detroit City Clerk, and that contrary to MCL c(3), they were not registered to vote at the time of circulation. As a result, all 478 signatures gathered by Canty, Pennington, and Willis-Pittman are invalid. DISPOSITION OF CONYERS APPEAL: Based on the foregoing, the Secretary of State finds that Congressman Conyers submitted a total of 455 valid signatures. The following chart is provided to explain the status of the petition should Judge Leitman s order result in circulators described in Sections II and III of this report be included as valid. If the petition sheets circulated by individuals who were registered to vote at the time of circulation but failed to disclose the correct jurisdiction of registration are included, 398 valid signatures are added to the total number of valid signatures submitted by Conyers. This yields 853 valid signatures ( ). If the petition sheets circulated by individuals who were not registered to vote at the time of circulation are included, 367 valid signatures are added to the total number of valid signatures submitted by Conyers. This yields 1,220 signatures ( ). See Chart, p. 8. forms Terry claims to have delivered to the Detroit City Clerk on December 16, 2013 is not known, as she has not provided any identifying information regarding these applicants, again making it impossible to confirm whether Terry delivered any voter registration application forms to the Detroit City Clerk on that date. 22 Attachment 6, Affidavit of Gina Avery, 2. 7

8 Category I. Circulators who were registered to vote at the time of circulation in the city/township indicated in Certificate of Circulator II. Circulators who were registered to vote at the time of circulation, but not in the city/township indicated in Certificate of Circulator 2:14-cv MFL-PJK Doc # 34 Filed 05/23/14 Pg 8 of 28 Pg ID 1003 Finding Signatures in this category are valid unless discounted for other reasons Signatures in this category are invalid Number of Valid Signatures Number of Invalid Signatures Signer not registered to vote or not registered in 13 th Congressional District Number of Invalid Signatures other fatal defects 23 Subtotal * *(398 if allowed) SUBTOTAL if this category is included ,552 III. Circulators who Signatures in were not registered to 0 * this category vote at the time of are invalid *(367 if allowed) circulation 1,220 TOTAL (This includes total signatures in Categories I, II and III) ,000 SHEFFIELD APPEAL: The Secretary of State declines to address Sheffield s appeal, as he is not a person feeling aggrieved possessing appeal rights within the meaning of MCL (6). The determination by the Wayne County Clerk was favorable to Sheffield. As a result, he was not aggrieved by the clerk s decision. Kocenda v. Archdiocese of Detroit, 204 Mich App 659, 666, 516 NW2d 132 (1994). Nonetheless, Sheffield s appeal asks the Secretary of State to discount signatures appearing on sheets that were previously invalidated by the Wayne County Clerk due to the circulators failure to comply with the voter registration requirement of MCL c(3), for the additional reason that these circulators failed to provide their true address, misrepresented the fact that they were registered to vote, or both, in violation of MCL c(11)(b) ( An individual shall not make a false statement in a certificate on a petition. ). When filing his challenge to Conyers nominating petition, Sheffield did not ask the Wayne County Clerk to reject these signatures on the additional grounds alleged here. Therefore, he cannot be aggrieved by the Clerk s failure to take this new argument into account when rendering her final determination. 23 See Footnote 1. 8

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