MICHIGAN SUPREME COURT THROWS OUT ELECTION FRAUD CASE

By DEBRA HAIGHT

BCR Correspondent

The 2014 election fraud case against Benton Harbor activist Rev. Edward Pinkney has been thrown out by the Michigan Supreme Court. In a ruling last week, the state’s highest court said Pinkney was not properly charged and that the statute he was convicted on did not set forth a “substantive offense.”

Pinkney was charged with five counts of election forgery in 2014 in connection

with petitions he gathered asking for the recall of then Benton Harbor Mayor James Hightower. The charges were filed after Berrien County officials concluded that some of dates on petitions had been altered.

A Berrien County Trial Court jury ended up convicting Pinkney of five counts of felony election forgery while acquitting him of six counts of making a false statement in a certificate of recall petition. Pinkney ended up being sentenced to 30 to 10 years in prison as a habitual offender. He is currently out of prison and on parole.

In last week’s ruling, the Michigan Supreme Court ruled that the statute Pinkney was convicted of violating is a penalty section and sent it back to the trial court. “We hold that section 937, by its plain language, does not set for a substantive offense,” the judges ruled.

“As a result, defendant was not properly charged under (section) 937 with the substantive offense of election-law forgery,” they said. “Therefore, his convictions must be vacated and the charges dismissed. We reverse the Court of Appeals’ holding to the contrary and remand to the trial court for further proceedings not inconsistent with this opinion.”

The judges noted in their 28-page opinion that the their ruling was unusual and rare. “As noted at the outset, we recognize that our conclusion that § 937 is an inoperative penalty provision is an unusual one, and it is not one that we reach lightly,” they said.

“To be clear, a statute should only be deemed inoperative after the most careful consideration of alternative interpretations and rigorous application of the interpretative tools at our disposal … This finding has historically been—and will continue to be—exceedingly rare.”

Last week, Berrien County Prosecutor Michael Sepic called for the legislature to fix the “hole” the Supreme Court found in the election law legislation. “The hole left in the Election Code by prior amendments, permits one to forge recall or petition documents without recourse,” he said.

“It is my belief that the Legislature did not intend this result (nor do I believe the citizens of Michigan find this result acceptable) and thus, I implore the Legislature to fill this gap by the passage of amendments to the Election Code specifically prohibiting such conduct,” he added.

He noted the Supreme Court’s acknowledgement that their ruling was both unusual and rare. “The Supreme Court said that rendering a statute as having no meaning, as it did in this case, is not only unusual but ‘exceedingly rare’,” he said.

“Yesterday, May 1, 2018, the Michigan Supreme Court ruled the statute under which Edward Pinkney was convicted in 2014 was not a substantive law section but rather simply a penalty section,” he said.

He pointed out that many of Michigan’s statutory codes have sections that prohibit certain conduct with a penalty provision at the end.  In the case of the Michigan Election Code, the legislature has amended it numerous times over the years.

“The patchwork amendments by the Legislature removed the substantive sections to which the penalty section referred,” he said. “The penalty section referred to forgery of election documents, however, did not set forth with particularity the details normally found in a substantive statute.”

Prior to last week’s Michigan Supreme Court ruling, Sepic said lower courts including the Michigan Court of Appeals and the Berrien County Trial Court in this case had ruled that the election law section cited in the prosecution was “substantive law.”

“It should also be noted that the court did not in any way disturb the finding of the jury that Pinkney changed the signature dates on the recall petitions so as to qualify additional needed names to his petitions,” he said.

As for Rev. Pinkney’s status, Sepic said he expects Berrien County Trial Judge Sterling Schrock, the judge who presided over the trial, to either dismiss the case or schedule a hearing. Sepic said Pinkney will not be tried again in connection with the 2014 case and will likely be released from parole pending an order from Schrock.

In a speech in California in February, Pinkney spoke about his experiences being put on trial and then in prison. “They claimed there were five signatures altered out of 700, which wouldn’t have made a difference, but they cancelled the election and charged me with election fraud,” he said as quoted in the People’s Tribune.

Pinkney urged people to come together. “It don’t matter if you are Black, white, brown, red yellow, you have to learn to work together, you have to start organizing and educating and start mobilizing to change the way this system has got us fighting one another,” he said. “They have us so divided up we don’t know which way to go.”