50% Plus One
3:03 pm
Mon April 8, 2013

Disputed Macomb Election to be Resolved April 26

Judge Rodney Clark decided Monday (April 8) to give the City of Macomb extra time to gather more evidence as it tries to defend the ruling made in the February 26 election between Steve Wailand and Kay Hill.

The hearing has been continued until April 26, 9:00am, at the McDonoough County Courthouse. Clark said he would make a ruling on the case on that day.

The delay won’t impact the matter of who is seated to the position because aldermen are not sworn in until the city council’s first meeting in May.

In the meantime, the April 9 run-off election between Wailand and Hill will proceed. The results will be sealed. If Clark rules in favor of Wailand, the April 9 results will be tossed out. If the ruling favors the city, the ballots will be unsealed and counted to determine who will serve as alderman for the next four years.

Steve Wailand and his legal counsel Diane Cohen
Credit Rich Egger

Wailand received 17 votes in the February election to 16 for Hill. But County Clerk Gretchen DeJaynes ruled neither candidate met a threshold of 50% of the vote plus one and that there should be a run-off election.

DeJaynes has said she simply administered the election by the rules provided to her by the city. City code states the candidate with the majority of votes shall be declared elected, but it does not spell out what is meant by “majority.”

During testimony Monday, City Clerk Melanie Falk said 50% plus one has been the standard for as long as she has worked for the city. She started working in the clerk’s office in 1986.

But Falk also acknowledged the 50% plus one rule is not written anywhere in city code, the term “majority” is not defined in the city code, and the city has never had a two candidate election advance to a supplemental (run-off) election.

In her testimony, DeJaynes said she had always been told by the city to apply the 50% plus one standard. She could not recall a situation similar to what happened in the contest between Wailand and Hill.

Judge Clark questioned why the city has not put into writing its interpretation of the word “majority.”

Judge Clark also questioned City Attorney Kristen Petrie about a hypothetical city election in which two candidates run. One receives a single vote, the other receives none. According to the city’s argument, neither candidate would be declared the winner, even though one of them received 100%.

Clark wondered whether the city’s interpretation of “majority” would lead to the possibility of an illogical result. Petrie said she did not agree.

In granting the city more time to prepare its case, Clark said he wanted to see more than what the city has presented so far. He said he would like to see minutes of a meeting in which the 50% plus one rule was discussed.

Also Monday, Judge Clark rejected an attempt to have Wailand disqualified from serving as alderman. The city and county allege he does not meet residency requirements, but Clark said the issue of Wailand’s eligibility was not the matter before the court at this time – the issue being contended has to do with what is meant by “majority.” Clark said Wailand’s residency can be challenged at another time.