Rick P. highlights this story from the Detroit News, which explains that Cornel West will be kept off the ballot. It includes a PDF of his “Affidavit of Identity,” which Bureau of Elections claims fails at least four elements of being properly notarized.
But I was surprised to see, as the Washington Post and others have reported, the purported legal hook. Michigan appears to have an unusual interpretation of the statute to ensure it applies to West.
When filing a nominating petition, qualifying petition, filing fee, or affidavit of candidacy for a federal, county, state, city, township, village, metropolitan district, or school district office in any election, a candidate shall file with the officer with whom the petitions, fee, or affidavit is filed 2 copies of an affidavit of identity. A candidate nominated for a federal, state, county, city, township, or village office at a political party convention or caucus shall file an affidavit of identity within 1 business day after being nominated with the secretary of state. The affidavit of identity filing requirement does not apply to a candidate nominated for the office of President of the United States or Vice President of the United States.
The third sentence of subsection (1) of the statute expressly exempts presidential candidates from the Affidavit of Identity requirement. This makes sense, because the affidavit requires, among other things compliance with Michigan campaign finance law (which wouldn’t make sense for federal candidates). The affidavit form doesn’t even make sense for an out-of-stater to complete, as West’s notary had to cross off the portion that said “county of commission” to say “State of Colorado.”
But here’s what Michigan’s Director of Elections had to say:
Michigan Election Law requires candidates filing nominating petitions to submit an affidavit of identity to be certified for elections. Candidates nominated for the office of President and Vice President are not required to file an affidavit of identity, but candidates filing to run without party affiliation by submitting petition signatures are required to submit an affidavit of identity.
I don’t read the statute to require that at all. The statute provides several ways to be nominated as a candidate–by petition, by filing fee, or by nominating convention. The third sentence is best read, “The affidavit of identity filing requirement does not apply to a candidate nominated for the office of President of the United States or Vice President of the United States [by any of these means].” For some reason, the Directory of Elections reads the statute as, “The affidavit of identity filing requirement does not apply to a candidate nominated for the office of President of the United States or Vice President of the United States [at a political party convention or caucus].” The word “nominated” in the third sentence is referring to the office, as in “nominated for,” not a particular means.
My interpretation is the same as the Michigan Court of Appeals last year in a ballot access dispute involving Donald Trump: “Yet, the Legislature has made plain that those seeking to run for the office of President of the United States are not required to file an affidavit of identity. MCL 168.558(1) (“The affidavit of identity filing requirement does not apply to a candidate nominated for the office of President of the United States or Vice President of the United States”).” That is, there is no distinguish across the means by which one secures the nomination for president, only that one is pursuing that office.
Of course, a separate question is why West filed the Affidavit of Identity at all if it didn’t apply to him. Minor party candidates can be overly cautious and complete all possible paperwork for fear of rejection (of course, here it backfired!). Or they may lack the legal team to track down with precision the fifty states’ ballot access rules. This form, for what it’s worth, doesn’t offer any suggestion that presidential candidates shouldn’t complete it.
I’ll be interested to see if there’s an appeal and how the legal process plays out, but I’m doubtful the elections board has the right interpretation of law here.
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