Clerk challenger loses in court
Thursday, September 23, 2004
By Nancy Stier
Muskegon CHRONICLE

A Muskegon County Circuit judge today upheld Muskegon Township Clerk Jim Nielsen's primary victory and denied challenger Kris Tabler's attempt to get her name on the Nov. 2 ballot.

"I find the (Muskegon County) Board of Canvassers did not violate the law," said Circuit Judge James M. Graves Jr. He denied Tabler's claim that the canvassers board lacked legal authority when it corrected its mathematical errors Friday and made Nielsen the winner of the primary contest.

Graves said Tabler has the right to appeal his decision if she chooses to do so today or Friday in the Michigan Court of Appeals in Grand Rapids. Tabler said immediately after Graves issued his order that she didn't know yet whether to pursue an appeal.

The judge said he had researched the matter for two evenings and could find no law or court decision that deals specifically with the situation which occurred in the township clerk's race. But the "preponderance" of statutes and cases he reviewed persuaded him that Nielsen's victory should be upheld.

"I am not infallible," Graves said. "There's no way a court can rule down the middle on an issue like this."

Tabler filed her lawsuit Tuesday in Muskegon County Circuit Court after mistakes found in the way results of the Aug. 3 primary were counted caused the winner of the race to change twice. Nielsen regained his initial position as victor when the board of canvassers discovered mathematical errors it made in reading recount tally sheets and corrected them Friday.

Tabler had been declared victorious in early September when the recount she requested was first completed. She wasn't satisfied that justice was done when Friday's action reversed results a second time and put Nielsen back in the lead.

Tabler's lawsuit, filed by Muskegon attorney James Waters against the canvassers board, maintained no law or court decision allows Friday's action in which Nielsen's initial position as winner of the primary was restored. County attorneys insist law does permit correction of blatant mathematical errors and Graves agreed this morning with that position.

Tabler unsuccessfully maintained the deadline for finalizing results of the recount was Sept. 10 and that changes couldn't legally be made after that date because no appeal was filed.

Errors in the way the canvassers' board tabulated results weren't discovered until Sept. 15 during a meeting in the county clerk's office. Attending were Clerk Karen Buie, canvassers' board Chairman Thomas Higgins, Deputy Clerk Kim Grimm, Nielsen and the president of the firm providing the voting machines. The lawsuit called the group an "unauthorized committee" that recalculated the tabulation sheets without rechecking to see whether the new totals matched the number of resealed ballots. Grimm reportedly discovered the tabulation errors.

Buie said the group wasn't a "committee" and made no decision.

"The public has free access to this office," Buie said. "Anyone can come in and ask questions about the election process. That's what we're here for," she said of Nielsen's Sept. 15 meeting with her.

When the board of canvassers met Friday, it acknowledged the errors and adjusted vote totals in a 3-0 vote, with Flo Shriver abstaining. Canvassers board member Anne Nelson then explained that after nine hours of recounting ballots, she inadvertently misread three boxes on recount tally sheets. That mistake threw the count off by five votes per candidate.

New corrected figures gave Nielsen an eight-vote victory margin, 807 to Tabler's 799. Jerry Young, the third Democratic candidate, received 253 votes.

On the evening of the primary, Nielsen was declared the winner by five votes. Initial results from the recount gave Tabler a two-vote lead over Nielsen.

Tabler's lawsuit maintained the court should void Friday's action and put her name on the November ballot.

The office of Muskegon County Corporate Counsel filed an answer insisting the board "was compelled to correct errors it committed in order to uphold the intent of all the voters, the majority of whom voted to elect Mr. Nielsen as the Democratic candidate."

Graves agreed with county attorneys, saying although mistakes were made by the canvassers board the only apparent errors were mathematical and those appear to all have been corrected. The new figures make Nielsen the choice of the majority of voters and the canvassers board sought advice from the Michigan Bureau of Elections before correcting the mistakes.

"It is a very high standard that has to be met before the court will set aside the will of the majority," Graves said. There are cases in which procedural errors made in conducting elections are so blatant that voters are disenfranchised, but he said he doesn't believe this is one of them.