Borregard Off Ballot in County Board Race

In the District 2 race for Washtenaw County board of commissioners, Democrat Eric Borregard will be removed from the ballot in District 2, leaving Republican incumbent Dan Smith unchallenged by any partisan candidates in the primary and general elections.

The decision came after the state Bureau of Elections indicated late Friday afternoon that a determination made by county clerk Larry Kestenbaum earlier in the week was inappropriate. Ed Golembiewski, chief deputy county clerk and elections director, told The Chronicle on Saturday that Borregard had been apprised of the situation, and will be officially informed in writing on Monday, when his name will be removed from the list of candidates on the county’s election website.

Borregard, a Dexter resident, had originally filed to run in District 1, which is the current district in which he resides. However, because of redistricting that takes effect for the upcoming election, his home will be located in the new District 2. Shortly after the 4 p.m. filing deadline on Tuesday, May 15, the county clerk’s office was alerted to this error by Kent Martinez-Kratz, a Democrat who’s running in District 1 against incumbent Republican Rob Turner. Acting to correct what he deemed a clerical error, Kestenbaum, a Democrat, approved an amendment to Borregard’s paperwork to allow him to appear on the District 2 ballot.

On Friday afternoon at 2 p.m., Kestenbaum told The Chronicle that he had talked with the county’s corporation counsel [Curtis Hedger] earlier in the week, as well as to staff in the state Bureau of Elections, and that he was comfortable that the change was within his authority to make. He said it was important not to create barriers to running for office. “There’s no trickery here,” he said.

Later that afternoon, Secretary of State spokesman Fred Woodhams told The Chronicle that staff were reviewing the situation and would potentially weigh on in it early next week. The Bureau of Elections is a division of the office of Secretary of State, a position held by Republican Ruth Johnson.

But just a few minutes before 5 p.m. on Friday, an official from the Bureau of Elections contacted the county clerk’s office, according to Golembiewski. The state’s view is that it was not appropriate to accept changes to the filing after the 4 p.m. deadline. As a result, Borregard’s name will not appear on the ballot. Kestenbaum left town Friday afternoon to attend an out-of-state funeral over the weekend and could not be reached. Golembiewski said that Kestenbaum had previously indicated he would abide by the state Bureau of Elections decision.

Borregard, who ran for county commissioner in 2010 but was defeated in the Democratic primary, has the option of challenging the decision in court. He could also choose to run as an independent in the Nov. 6 general election – the filing deadline for candidates who are not affiliated with a political party is July 19 at 4 p.m.

In another county board race, two Ypsilanti Township candidates who had previously filed to run for the commissioner seat in District 5 – Rick Roe and Michael White – have withdrawn from that Aug. 7 primary race. The deadline to withdraw was 4 p.m. Friday, May 18. That leaves incumbent Democrat Rolland Sizemore Jr. unchallenged in the primary.

For a list of county candidates in the Aug. 7 primary election, see Chronicle coverage: “Last Minute Filings: Washtenaw County Races.”

District 2 Ballot

Eric Borregard filed his affidavit to become a Democratic candidate for the Washtenaw County board of commissioners on March 8, 2012. He has run for office several times in the past, most recently in 2010 for the District 1 county board seat. In that race, he lost in the three-way August primary to Adam Zemke, earning 15.06% of the vote compared to 69.98% for Zemke and 14.69% for the other Democratic candidate, Reid McCarthy. Zemke was subsequently defeated by Republican Rob Turner in the general election.

When candidates file their paperwork to run for office, the county clerk’s staff checks to confirm the accuracy of information submitted by candidates by using the Michigan Qualified Voter File, a database maintained by the state. Initially, county clerk Larry Kestenbaum told The Chronicle that the day after Borregard filed for the 2012 election, the clerk’s staff checked the QVF and found that it listed Borregard as a resident of District 1. Kestenbaum explained this by saying that the state had not yet updated the QVF to reflect the new county districts.

But on Friday night, Ed Golembiewski, chief deputy county clerk and elections director, told The Chronicle that the state disputed that claim and that the QVF had been updated by the time that Borregard had filed in March. Golembiewski said he checked the county’s records again on Friday night and found that, in fact, the QVF had been updated at the time of Borregard’s original filing. It now appears that the candidate filed to run in the incorrect district, and the county clerk’s staff didn’t catch the error when reviewing Borregard’s paperwork.

The error came to the attention of the clerk’s staff a few minutes after the 4 p.m. filing deadline on Tuesday, May 15, when Kent Martinez-Kratz, the only other Democrat running in District 1, contacted the clerk’s office. At that point, Kestenbaum decided to offer Borregard the opportunity to amend his affidavit to reflect the correct district – District 2. Borregard submitted that amendment at 5:22 p.m. on May 15, more than an hour after the filing deadline.

Dan Smith, who was first elected in 2010 for a term beginning in January 2011, is unopposed in the Republican primary. And other than Borregard, no other Democratic candidates filed in District 2. Kestenbaum reported that Smith had inquired about the timeline of events regarding Borregard’s filing, and on Thursday, May 17 the county clerk’s staff prepared a written timeline at Smith’s request. [.pdf of timeline from clerk's office]

In an interview with The Chronicle early Friday afternoon, May 18, Kestenbaum said that he had consulted with the county’s corporation counsel and staff at the state Bureau of Elections, and “as far as I’m concerned, it’s settled.” Borregard filed in a timely matter, and filed in the district he believed was correct – and the clerk’s staff had confirmed that information, Kestenbaum said. He said it wasn’t the candidate’s fault that the QVF hadn’t been updated. [At the time of his conversation with The Chronicle, Kestenbaum asserted that the QVF had not been up to date.]

Kestenbaum said his general philosophy is to err on the side of letting people run for office so that voters can decide, and not create barriers to getting on the ballot. He noted that there was a special election on May 8 based on the current districts for the county board, while at the same time candidates were filing for races in the new districts. [Democrat Felicia Brabec won that May 8 election against Republican Richard Conn – a special election prompted by last year's resignation of former commissioner Kristin Judge.]

Regardless, Kestenbaum said, his office should have checked the candidates’ addresses against a map of the new county board districts, but they didn’t. Borregard relied on confirmation by the clerk’s office that his filing was accurate, Kestenbaum said.

[By way of background, Kestenbaum – a former county commissioner who represented one of Ann Arbor's districts – chaired the county apportionment commission, which developed and approved the county board redistricting plan in May of 2011. Other members of the apportionment commission were county treasurer Catherine McClary; county prosecuting attorney Brian Mackie; Cleveland Chandler, chair of the Washtenaw County Democratic Party; and Mark Boonstra, then-chair of the Washtenaw County Republican Committee. See Chronicle coverage: "County Board Loses 2 Seats in Redistricting."]

Redistricting occurs every 10 years, in connection with the U.S. Census. So it would be rare for confusion about the district boundaries to arise in connection with candidate filings. Kestenbaum characterized it as a clerical error, and did not recall encountering any similar cases for this type of race.

Before the state weighed in, Kestenbaum had said that if Smith was aggrieved by the decision to include Borregard on the District 2 ballot, he had the option of filing a lawsuit in the 22nd Circuit Court. Now, Borregard would have that same option. Kestenbaum was uncertain whether there is a deadline by which such a filing would need to occur. Golembiewski noted that the ballots will be approved by the county board of election commissioners, which meets on June 11.

Kestenbaum, as county clerk, also serves on the board of election commissioners. Other members are the county treasurer (McClary) and Donald Shelton, chief judge of the 22nd Circuit Court. Kestenbaum and McClary were elected clerk and treasurer as Democrats, and are both running for re-election this year. Shelton was elected judge on a non-partisan ballot, but in the past has run for office as a Democrat. This group is also responsible for ruling on the clarity of ballot language for recall petitions, for example.

Ballots for the Aug. 7 primary elections will begin to be created as early as next week. The county contracts with Government Business Systems (GBS) to do its ballot programming.

Borregard also has the option to run as an independent in the Nov. 6 general election – the filing deadline for candidates who are not affiliated with a political party is July 19 at 4 p.m.

When asked about the partisan implications of this situation, Kestenbaum said he would have done the exact same thing if Borregard had been a Republican. “In fact, I wish it were a Republican,” he added, so that the partisan question would be irrelevant. He said he detests political considerations being a factor in what goes on the ballot, citing his disagreement with a recent decision by the state Board of State Canvassers as an example. That board denied approving petitions to put a repeal of the state’s emergency manager law on the ballot because the petitions weren’t circulated with the font size required by law. That decision is being appealed.

In a phone conversation with The Chronicle on Friday afternoon before the state weighed in, Smith had said he wasn’t prepared to make a statement on the issue. He had planned to talk with people about it over the weekend at the Republican state convention in Detroit – Smith is a delegate from Precinct 3 in Northfield Township.

Update: Late Sunday night, May 20, Dan Smith emailed this statement to The Chronicle: “Mr. Kestenbaum has jeopardized the transparency and integrity of the Clerk’s office; undermining the hard work of the dedicated public servants under his supervision. However, a detailed accounting at this time would do little to advance the concerns of those in the 2nd district. My focus remains on the residents of Washtenaw County: providing for their public safety needs, being accountable for their tax dollars, and ensuring the long-term financial stability of their government.”