Michigan Election Law Blog
Judge Kathleen Feeney, a sitting 17th Circuit Judge (Kent County), recently won her lawsuit to be given the incumbency designation for the upcoming November election. Additionally, she will be listed separately on the ballot. Judge Feeney is seeking reelection to the bench where she has sat since her initial appointment in 2000.
The dispute arose after the Bureau of Elections (“BOE”) denied her request for the incumbency designation because she failed to timely file her affidavit of candidacy. Judge Feeney did, however, obtain the requisite number of signatures on nominating petitions to appear on the ballot.
The court found the state constitution requires each incumbent judge who is a candidate for the same office to be granted a designation of that office, printed below his or her name on the ballot. Michigan election law requires incumbent judges to be listed separately on the ballot from nonincumbents. The BOE argued Judge Feeney lost her incumbency status by failing to file the affidavit of candidacy. In doing so, the BOE relied on the section 424a of Michigan Election Law, which states:
The secretary of state shall issue an office designation of incumbent position for any judgeship for which the incumbent judge is eligible to seek reelection. If an incumbent judge does not file an affidavit of candidacy by the deadline, the secretary of state shall notify all candidates for that office that a nonincumbent position exists.”[1]
The court rejected this argument. It held that the language in section 424a does not “strip[ ] [Judge Feeney] of her constitutional – and unqualified – right to an incumbency designation.”[2] The court further reasoned that the affidavit was not the exclusive means of ballot-access for a judge and a circuit court judge may become a candidate by (1) filing the affidavit of candidacy, or (2) by filing the appropriate number of signatures on a nominating petition. Under the plain language of the constitution and the statute, Judge Feeney is entitled to an incumbency designation because she is an incumbent that is seeking election to the same seat as a qualified candidate.
This ruling makes clear that judges will retain incumbent status so long as they are eligible candidates for the same seat they currently hold, even if they fail to file their affidavit of candidacy. The practical effect of this ruling is Judge Feeney will face a much easier election in November. Instead of running in a contested race as a nonincumbent, she will be listed separately as the sole candidate for one open position. Maureen Gottlieb, Jenny Johnsen Sarber, Scott Noto, and Stephen Willison will compete for the two nonincumbent positions.
[1] MCL 168.424a(6) (emphasis added).
[2] Kathleen A. Feeney v. Jonathan Brater, et al., No. 20-000143-MZ (Mich. Ct. Cl., August 24, 2020).
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