Barrow Contests Duggan's Eligibility as Write-In Candidate: Legal Analysis Please....

**corktownyuppie** · July-01-13, 11:03 AM

http://deadlinedetroit.com/articles/...e#.UdGnzjTVCSo

Barrow states:

As you are aware, contained in Judge Popke's order in Barrow v. City of Detroit and Mike Duggan for Mayor Committee which was affirmed by the Michigan Court of Appeals, Mr. Duggan was barred from the August 6, 2013 ballot. The order also clearly stated, in plain language, that Mr. Duggan is ineligible to be a candidate in the August 6th primary election.

In the Barrow case, both the Third Circuit Court and the Michigan Court of Appeals admonished your office and the Commission for interpreting plain language rules outside of their clear and intended meaning, and this instance, once again, presents an opportunity for your office to conduct its ministerial duties properly and in accordance with a plain reading of the law.

Ok, obviously, I can't imagine that any ruling would apply to Duggan's eligibility as a write-in candidate, but I'm open to legal argument that he isn't.

Any comment?

**Eber Brock Ward** · July-01-13, 11:08 AM

My understanding is that Duggan will be "filing for office" when he submits the required "Declaration of Intent" to run as a write in candidate, which can can do up to the second Friday preceding the election.

Essentially, his earlier filing to be on the ballot was voided, and he has to "re-file" as a write-in.

Tough for Barrow to even make this argument, let alone win it.

**p69rrh51** · July-01-13, 11:09 AM

My question is why is Barrow so afraid of Duggan?

**corktownyuppie** · July-01-13, 11:12 AM

Originally Posted by Eber Brock Ward

My understanding is that Duggan will be "filing for office" when he submits the required "Declaration of Intent" to run as a write in candidate, which can can do up to the second Friday preceding the election.

Essentially, his earlier filing to be on the ballot was voided, and he has to "re-file" as a write-in.

Tough for Barrow to even make this argument, let alone win it.

Well, I think it's totally absurd to make the argument. If you're afraid of a write-in candidate in an election, you've got bigger problems. Barrow isn't arguing any issues with the filing deadline. He's saying that the court ruling and subsequent MCOA rulings make him totally ineligible at all for the primary.

On Barrow's Facebook page, he admits that Duggan is eligible as a write-in for the general election. Just not for the primary. Will a court uphold? Did the court "intend" to disqualify Duggan outright for the primary election? Or just to have his name on the ballot?

**brizee** · July-01-13, 11:13 AM

Originally Posted by p69rrh51

My question is why is Barrow so afraid of Duggan?

Benny and Duggan were the workhorses in this race, and he was able to knock one out, leaving second place to the field.

Duggan could still potentially come in as a solid second in the primary.

The shame of losing a forth race, especially to a short, fat, white, writein candidate is probably just a little too much for Barrows ego to tolerate.

Which is why I suggest he start the five stages of grief now and get it over with.

**downtownguy** · July-01-13, 11:38 AM

Originally Posted by brizee

Which is why I suggest he start the five stages of grief now and get it over with.

Seems like he already is in the denial stage.

**downtownguy** · July-01-13, 11:41 AM

Anybody know how residency comes into play for a write-in candidate? Since we've all argued three sides of the Duggan issue, I don't mean to imply he's not eligible now. But, hypothetically, what if he wasn't a resident yet? Is there any language in the charter to address that? Would you have to be a resident for one year prior to filing the Declaration of Intent? Or is there another date that applies?

**p69rrh51** · July-01-13, 11:46 AM

Originally Posted by brizee

Benny and Duggan were the workhorses in this race, and he was able to knock one out, leaving second place to the field.

Duggan could still potentially come in as a solid second in the primary.

The shame of losing a forth race, especially to a short, fat, white, writein candidate is probably just a little too much for Barrows ego to tolerate.

Which is why I suggest he start the five stages of grief now and get it over with.

What does short and fat have to do with anything? I am a short overweight white guy and I find that very offensive!

**rb336** · July-01-13, 11:48 AM

Originally Posted by Eber Brock Ward

My understanding is that Duggan will be "filing for office" when he submits the required "Declaration of Intent" to run as a write in candidate, which can can do up to the second Friday preceding the election.

Essentially, his earlier filing to be on the ballot was voided, and he has to "re-file" as a write-in.

Tough for Barrow to even make this argument, let alone win it.

The fact that other candidates are joining Barrow in complaining about this makes it pretty clear to me that they think he will beat them in the primary, even as a write-in. Without Duggan, Benny is, unfortunately, a shoe-in to become the next mayor

**Zug** · July-01-13, 11:59 AM

I really, really hate saying Barrow may have a point [[I am a Duggan supporter...though not a hardcore one). But the order did say that Duggan is ineligible to be a candidate for Mayor of the City of Detroit in the August 6, 2013 primary election. To the best of my knowledge, there was no distinction between "candidate" and "write-in candidate." [[Is there a legal distinction between these?) However, filing as a write-in isn't technically being a candidate, is it? I thought it was more like "if I get enough votes, I intend to accept the decision [[be it to go on the primary ballot, or to take the office)." If I am wrong, someone can correct me.

**corktownyuppie** · July-01-13, 12:00 PM

My bet is that Barrow files suit, claiming that Judge Popke stated in plain language that Duggan was ineligible for candidacy on the ballot. Duggan argues that Popke overreached in stating his total ineligibility for candidacy, and that any ineligibility was limited only to his name appearing on the ballot.

Pokpke's ruling and subsequent MCOA upholding nullifies his filing first filing. Meaning that the controlling filing date for his write-in eligibility is his 2nd filing, which meets the definition of residency by the charter.

You dizzy yet?

**Lowell** · July-01-13, 12:12 PM

Duggan has no one to blame but Duggan himself. I predict he will get thrown off and have to put his tail between his legs and sidle off again.

It's Benny Napoleon's to lose from here on out. He probably would have won anyway barring any skeletons coming out of his closets.

Duggan should never have gotten back in. He will be a distraction that will sow discontent with whoever wins making the difficult job of governing Detroit that much more work.

**jcole** · July-01-13, 12:35 PM

Wouldn't it be a little unconstitutional to tell people they can't write in the candidate of their choice on their ballot?

**ElbertHanks** · July-01-13, 01:32 PM

Originally Posted by jcole

Wouldn't it be a little unconstitutional to tell people they can't write in the candidate of their choice on their ballot?

I don't see anyone saying that and really meaning it. It's really a question of whether write-in votes would count. IMO Barrow is jumping the gun and probably has no standing to challenge anything regarding a potential write-in campaign. But by raising questions ahead of time you sew confusion and cost Duggan some votes. This is about politics not law.

What happens with write-in votes should get decided post-election. But I would only expect it to be decided by a Court if the vote count shows Duggan has a statistical chance. Courts tend to exercise judicial restraint when their input isn't necessary to resolving an issue.

**Eber Brock Ward** · July-01-13, 01:33 PM

Originally Posted by corktownyuppie

My bet is that Barrow files suit, claiming that Judge Popke stated in plain language that Duggan was ineligible for candidacy on the ballot. Duggan argues that Popke overreached in stating his total ineligibility for candidacy, and that any ineligibility was limited only to his name appearing on the ballot.

Pokpke's ruling and subsequent MCOA upholding nullifies his filing first filing. Meaning that the controlling filing date for his write-in eligibility is his 2nd filing, which meets the definition of residency by the charter.

You dizzy yet?

This is almost certainly correct, and Barrow's challenge this time is more along the lines of a typical Tom Barrow/Robert Davis laughfest. From the COA opinion [[http://www.freep.com/assets/freep/pdf/C4207094618.PDF):

The interests of the people in adopting the charter must be balanced with the interest of voters to have their choice of candidates. In this instance, the former need not give way to the latter where Duggan asserts that he may be a write-in candidate under state law, citing MCL 168.737a,[1] and there is no constitutional right to vote for an individual who did not meet the eligibility requirements to run for office.

[1] MCL 168.737a[[1) provides in pertinent part: “The write-in candidate shall file the declaration of intent to be a write-in candidate with the filing official for that elective office on or before 4 p.m. on the second Friday immediately before the election.” Section 3-106 of the charter allows for state law to apply to the filing for office by candidates except as otherwise provided in the charter. Thus, the voters remain free to “cast their votes effectively.” Williams v Rhodes, 393 US 23, 31; 89 S Ct 5; 21 L Ed 2d 24 [[1968).

State law spells out the process and requirements. The declaration of intent/filing date for a write-in candidate is, like I just about wrote above, "before 4 p.m. on the second Friday immediately before the election."

Duggan will have been a resident for at least a year at the time of this [[later) "filing for office."

**Honky Tonk** · July-01-13, 02:39 PM

Originally Posted by Eber Brock Ward

This is almost certainly correct, and Barrow's challenge this time is more along the lines of a typical Tom Barrow/Robert Davis laughfest. From the COA opinion [[http://www.freep.com/assets/freep/pdf/C4207094618.PDF):

State law spells out the process and requirements. The declaration of intent/filing date for a write-in candidate is, like I just about wrote above, "before 4 p.m. on the second Friday immediately before the election."

Duggan will have been a resident for at least a year at the time of this [[later) "filing for office."

Somebody please CC him with a copy and create a pop-up "Reminder".

**rb336** · July-01-13, 02:44 PM

Originally Posted by Lowell

Duggan has no one to blame but Duggan himself. I predict he will get thrown off and have to put his tail between his legs and sidle off again.

It's Benny Napoleon's to lose from here on out. He probably would have won anyway barring any skeletons coming out of his closets.

Duggan should never have gotten back in. He will be a distraction that will sow discontent with whoever wins making the difficult job of governing Detroit that much more work.

There is always that discontent following an election, and if Duggan doesn't get onto the general election ballot, BN will win it hands down. I just see no one I would WANT to vote for if I were a Detroit resident. What a weak field

**trotwood** · July-01-13, 02:51 PM

Originally Posted by brizee

Benny and Duggan were the workhorses in this race, and he was able to knock one out, leaving second place to the field.

Duggan could still potentially come in as a solid second in the primary.

The shame of losing a forth race, especially to a short, fat, white, writein candidate is probably just a little too much for Barrows ego to tolerate.

Which is why I suggest he start the five stages of grief now and get it over with.

LMAO!!!Too funny!

**sumas** · July-01-13, 04:03 PM

I am interested to see what happens with Barrows new appeal. I obviously am a Duggan supporter but if this s... doesn't fly, stuff will, in 3 to 5 yrs. I can support a long range plan too. Hope I live that long!

Barrow is kind of like a mud puppy/dabber. They exist all along the Detroit river, ugly little salamander type creatures which are rarely seen, they leave signs behind of their presence in the mud, that look like piles of shit. No use but ugly and annoying.

**Zug** · July-01-13, 05:32 PM

I just can't see how the judge can legally disqualify someone even from being a write-in...either the judge wrote something unintended or was really reaching beyond the bounds of what should have been determined. He's past his year-long residency date...filing early months ago to be listed on the ballot shouldn't affect the ability to file as a write-in now.

Unfortunately, as others have said, Barrow wants to create confusion and hurt Duggan. For a guy claiming to want to do the best for the city, he's really determined to not give Detroiters a choice...

**Detroitdave** · July-01-13, 05:43 PM

Barrow has it out for Duggan if it's not clear to anyone this makes it clear.
This guy hates Duggan , he can say ANYTHING he wants about following the law , but anyone with a 3rd grade education can see what's going on here.

**Meddle** · July-01-13, 06:47 PM

I've seen a lot of reference to it, but has either Barrow or Napolean ever said outright they are opposed to a white Mayor and will actively try to prevent it from happening?

**Zacha341** · July-01-13, 07:37 PM

Yes, the blank space IS ON THE BALLOT for just such an option. Even for the presidential election.

Originally Posted by jcole

Wouldn't it be a little unconstitutional to tell people they can't write in the candidate of their choice on their ballot?

**corktownyuppie** · July-01-13, 07:41 PM

There's a certain percentage of people who will support Barrow no matter what. There's a certain percentage of people who will support Duggan no matter what. Where the question is going to come is with the swing voters...and I have to believe that the longer Barrow runs with this, it just brings more and more attention and publicity to Duggan at no cost to him.

And for the swing voter, I have to believe it's starting to look more desperate on Barrow's part than Duggan's. I mean, if you're really this afraid of a write-in candidate, what does that say about you and your campaign?

And, frankly, given the uphill battle any write-in candidacy would be, I'm surprised that the other candidates aren't just yelling, "Let him in! We ain't afraid of no ghost!"

Doubling my entendre,
CTY

**Zacha341** · July-01-13, 07:48 PM

If Duggan remains in earshot of the media and Detroit votors that is a problem for Barrow et al. Duggan [[if he has it in him) can potentially bring up foot-to-the-fire issues and controversial corners of politics as only a spoiler or odd man out can.

The standing at the podium front runners, ala the inked-at-the press ballot participants never will!

And even if one of them wins someone may recall the issues Duggan brings up. Maybe.