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It was just an ordinary day at township hall. You were going about your duties as township official when suddenly the new deputy clerk hands you a notice from the county clerk. A recall petition has been filed and it seeks to recall – you!

As a preliminary point, do not panic. Michigan electors have the power to recall any elected official (except for judges) and do so from time to time. Just because a recall petition has been filed does not mean it will be successful. Nor does it mean that you are without the ability to challenge it, both prior to and after circulation.

The purpose of this E-letter is to provide you with the tools you can use to handle a prospective recall: an overview of the process and the ways to challenge it. While there are slightly different requirements depending on the office of the person being recalled, this E-letter will present the recall process for a township official.

(1) The Recall Process

Recalls proceed in three stages: (1) initial petition review and factual sufficiency threshold; (2) petition circulation and canvass; and (3) election.

(A) Initial Petition Review and Factual Sufficiency Threshold

Recalls are initiated by the filing of a recall petition with the county clerk. Such petition must pertain only to a single official, MCL 168.958a; be printed; meet specific formatting requirements; and state factually and clearly the reason(s) for the recall. MCL 168.952(1). The stated reasons must have occurred during the public official’s current term of office. Id. A petition cannot be filed for a township official in the first or last six months of his or her term. MCL 168.952b.

If the petition meets the single-subject, printing, formatting, and timing thresholds, it will be forwarded to the county election commission to assess whether it factually and clearly states the reasons for the recall.  Such assessment should occur at a public meeting 10 to 20 days after the county clerk’s receipt of the petition. MCL 168.952(3). Notice that the petition has been filed, the filing date, the stated reasons therefore, and the date, time and place of the meeting must be provided to the subject official within three days of the petition’s receipt. MCL 168.952(4).

The Michigan Election Law requires the county election commission to hold its public meeting on the petition’s clarity and factual sufficiency. If it fails to do so within the allotted timeframe, the petition will automatically be determined to be sufficient. MCL 168.952(3). In such situation, the public official can appeal the determination to the circuit court. MCL 168.952(6). Such appeal must occur within 10 days of the determination and stays the sponsor’s ability to circulate the petition until forty days or the circuit court’s resolution of the case, whichever is sooner. Id.

Should the county election commission hold its required meeting, the public official has the ability to contest the factual basis or clarity of the petition. See MCL 168.952(5). If the county election commission determines any single factual basis for the recall to be invalid, the entire petition can be denied. MCL 168.952(3). (Do note that a petition sponsor can submit multiple petitions, each containing a different reason for recall. See Barnes v Cty of Lake Election Comm’n, unpublished per curiam opinion of Ct. of Appeals, December 21, 2023). However, if deemed sufficient, the petition is approved for circulation.

(B) Circulation and Canvass

If the recall petition passes the initial review process, then it can be circulated for signatures. A recall election will only be held if sufficient signatures of registered voters in the township are obtained, MCL 168.955, and the petition sheets have been properly completed. See MCL 168.954. A circulator must obtain a number of signatures of registered electors in the township equal to not less than 25% of the number of votes cast for candidates for governor at the last election in the township. MCL 169.955. Once circulation is complete, the sheets must be presented to the county clerk for canvassing. MCL 168.960(1). Once presented for canvassing, no additional signatures can be obtained or sheets submitted. MCL 168.961(1). The county clerk presents the filer with a receipt containing the number of signatures claimed by the filer, the number of petition sheets filed, and the date of filing. Id. The public official is required to be notified of the filing by the next business day. MCL 168.961a.

The county clerk’s review of the petitions must occur within 7 days of filing. MCL 168.961(2). During his or her review, the county clerk will assess if the petition is in the proper form and determine the number of signatures. Id. The county clerk does not have to count signatures on a petition if any of the following apply:

• Improper execution of the certificate of circulator;
• Improper completion of the petition heading;
• The reasons for recall are different than those reviewed and approved by the county election commission (or circuit court, if applicable)
• Signatures were obtained before the petition was approved as factually sufficient and clear.
• Signatures were obtained over 180 days prior to submission of the petition.

MCL 168.961(2)(a)-(d).

Once the number of signatures has been determined, the county clerk can forward the petitions to the township clerk to determine the validity of the signatures. To do so, the township clerk utilizes the QVF or master card to check the signers’ signatures and registration status. Signatures can be invalidated based upon registration status (i.e. the signer is not a registered voter or was not registered to vote in the township upon the day of signing), and nonconformance with the QVF or master card.  MCL 168.961(5)-(7).

Having been provided the opportunity to review the petition signatures, the public official has the ability to challenge their validity. MCL 168.961a. Such challenge must occur within 30 days of the petition filing and requires the county clerk to review the township clerk’s determination of the signature. MCL 168.961a(3). If a sufficient number of signatures have been obtained, then the county clerk issues a final determination on the petition and an election is called on the recall. MCL 168.963.

(C) Recall Election

A recall election must take place no less than 95 days after the recall petition has been filed. MCL 168.963(3). The Michigan Election Law requires that it either occur at the next May regular election or next November regular election, whichever is sooner. MCL 168.963(3). At such time, the township electors are granted the opportunity to select either the public official subject to recall or a challenger, who has either submitted a sufficient nominating petition or paid a $100.00 fee to be placed on the ballot. MCL 168.972(1). The candidate who receives the highest number of votes serves for the remainder of the public official’s term. MCL 168.975.

(2) Ways to Challenge a Recall Petition

As noted above, the Michigan Election Law provides the targeted public official with multiple opportunities to challenge a recall petition: first at the initial review stage and then post-circulation.

The strongest line of defense to a recall petition arises from the initial review stage. Formulating a clear and factually sufficient petition is difficult. Targeted public officials can and should take advantage of the sponsor’s stated language and use it against them. The sponsor is required to list the reasons for recall in such a way that the targeted public official can identify the reasons for recall. Broad, vague language, such as “Supervisor Fahey failed to follow his duties” or “Clerk Stocker refused to accept petitions” or “Treasurer Patterson failed to make necessary payments” is unclear and open to challenge. Additionally, language that misstates the law (such as “Clerk Stocker failed to certify the requisite ballot question language by the 18^th Tuesday before the election”) misleads electors and is factually deficient.

Because of this, targeted public officials should utilize the meeting process to point out these deficiencies. An effective way to do so is to submit a memorandum to the county election commissioners, which points out the deficiencies in the petition language and any applicable legal reasoning behind it. In addition, the official reserves the ability to make any additional argument at the meeting itself. These acts not only put the facts in front of the county election commission, but also serve to create a record that a circuit court can use to review the determination on appeal.

Determination that the petition is factually sufficient and clear does not guarantee that the recall election will go forward. A public official retains the ability to challenge the number of signatures obtained, as well as the formatting of the petition. Do note that it is very difficult to overcome a township clerk’s determination that a signature is valid. Clerks reviewing voter’s signatures under Michigan law have broad discretion in canvassing signatures. Therefore, a post-circulation challenge of signatures is a high threshold to meet and often unsuccessful.

With that said, the targeted public official retains the ability to challenge the form of the petition itself. To do so, the public official could petition the circuit court for a writ of mandamus, seeking an order for the county election commission to invalidate signatures based upon an improper circulator’s certificate or improper formatting or even stale signatures (whichever is applicable.) This is a potential course of action, as if any of those bases are found to be improper, the entire sheet of signatures must be invalidated.

Note that mandamus actions generally require immediate action, as a court will often decline to address such situations after the applicable ballot has been printed and election preparations have occurred. As such, the public official (and its retained counsel) should be ready to hit the ground running if the petition is determined to have sufficient signatures and the election is to move forward.

Post-election remedies are also available through quo warranto proceedings arising from fraud or other election irregularities. However, such relief is rare and far between.

(3) General Guidance

Finally, a public official is only recalled from office if he or she does not win the election. From a practical, not legal standpoint, a strong campaign and support base may be the ultimate difference between recall and retaining one’s elected position.

Conclusion

While the potential for recall can be stressful, it can be managed and it can be mitigated.

A petition sponsor bears the heavy burden of justifying the recall. The recall cannot occur until three significant events take place: petition approval, a sufficient number of signatures retained, and a successful election. Each event is contingent on the previous one and each has a defense. Why not utilize them?

By: Hannah Stocker

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.