Nick Krieger (@nckrieger):
Attorneys for the Michigan Republican Party continue to assert that the Board of State Canvassers should decide whether Melissa Gilbert may withdraw as a candidate for Congress in Michigan's 8th district. It's a wrongheaded argument.
In May, Gilbert announced that neck and head injuries she sustained in 2012 would prevent her from continuing her campaign. Under the Michigan election law, a candidate for Congress may withdraw after having been nominated only for certain enumerated reasons, including that he or she has "become physically unfit." MCL 168.138.
Gilbert sent a letter (along with medical documentation of her injuries) to Director of Elections Chris Thomas, requesting to formally withdraw from the race. Thomas approved Gilbert's request, observing that it is up to an individual candidate to determine whether he or she has become physically unfit within the meaning of the statute. Attorneys for the Republican Party challenged Thomas's conclusion, arguing that the Board of State Canvassers should review the medical evidence and independently determine whether Gilbert is truly unfit to run. On Monday, however, the Board of State Canvassers refused to intervene in the matter, declining to rule on Gilbert's fitness or her request to withdraw.
This did not deter GOP lawyers, however, who continue to argue that the Board of State Canvassers must investigate Gilbert's health and examine her fitness as a candidate.
I wonder if these lawyers have actually read the Michigan election law. I understand that the statute does not define the term "physically unfit" or specify who must determine whether a candidate has become unfit to run. But there is simply no reasonable argument under which the Board of State Canvassers would be the proper body to make that determination.
The Board of State Canvassers has no general power to review and reverse decisions of the Director of Elections. Nor does it have the authority to broadly opine on questions of Michigan election law. While the Board of State Canvassers is a constitutionally created body, its powers are defined and limited by statute. No Michigan statute gives the Board the authority to interpret and apply MCL 168.138.
So, who does have the power to interpret MCL 168.138 and determine whether a congressional candidate has "become physically unfit" within the meaning of the law? Assuming for the sake of argument that it's not a determination for the candidate herself (I think it might be, and apparently Chris Thomas does too), the power must necessarily belong to the Secretary of State or the Director of Elections -- not the Board of State Canvassers. The Secretary of State is "the chief election officer of the state," MCL 168.21, and may issue instructions and promulgate rules concerning the conduct of Michigan elections, MCL 168.31(1)(a). The Director of Elections is appointed by the Secretary of State, and has the power to perform the duties of the Secretary of State "with respect to the supervision and administration of the election laws." MCL 168.32(1). It is clear that the Director of Elections, acting on behalf of the Secretary of State, would be the appropriate official to make the decision.
The Republicans have lost this battle; it's time to move on. They should worry about more pressing problems, like trying to rein in their unhinged presidential candidate.