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Despite being certified last week, the election for mayor of Hamtramck may be far from over.
City Council member Muhith Mahmood, the candidate who lost the Nov. 5 mayoral election by just six votes, is suing both the City of Hamtramck and the Wayne County Board of Canvassers to have more than three dozen uncounted votes included in the final total. The case has the potential to reverse the outcome of the election, a victory by engineer Adam Alharbi.
Due to what election officials have said was human error, 37 absentee ballots in Hamtramck were separated from the others and not counted on election night. When the ballots were discovered — opened, but still in their envelopes — in the city clerk’s office the following day, they were immediately sealed and taken to the county elections department.
But Hamtramck Clerk Rana Faraj later said three non-election officials had walked into the clerk’s sealed office on election night before the ballots were discovered, effectively breaking the chain of custody for those ballots and raising questions about their security. The Wayne County Board of Canvassers ultimately deadlocked on whether to count the ballots, resulting in their exclusion from the official results.
Not counting those ballots is “unconstitutional disenfranchisement,” Mahmood’s attorney, Mark Brewer, wrote in the lawsuit filed last week in the Third Judicial Circuit of Michigan, arguing that either the ballots should be counted or the 37 voters should be allowed to cast new ballots. The lawsuit is also filed on behalf of the 37 voters, whose names have not been made public.
Michigan election law requires absentee ballots to be tabulated, wrote Brewer, a former chair of the Michigan Democratic Party (the Hamtramck mayoral election, however, is nonpartisan). To bolster his other proposed remedy, Brewer cited cases in Hawaii and North Dakota in which judges allowed voters to cast new ballots after their original ballots were challenged. According to Brewer, and Votebeat’s initial review of Michigan case law, it does not appear that Michigan has ever let voters recast ballots after an election.
“The vote margin in the Hamtramck mayor’s election is currently 6, far less than the 37 votes not tabulated,” the lawsuit noted. “Thus, not only are the constitutional rights of those 37 voters affected but those 37 votes could determine the outcome of the mayoral election thereby affecting every resident of Hamtramck.”
The goal, Brewer told Votebeat, is to ensure that all votes are counted — even if that means his client still doesn’t win the election.
“It’s all the principle here,” he said in an interview on Monday. “My client agrees that every vote should be counted, no matter what the ultimate outcome is. We’ll let the chips fall where they may.”
Hamtramck City Attorney Odey Meroueh didn’t immediately respond to a request for comment Monday. Wayne County canvassers also did not immediately respond to requests. Nabih Ayad, the attorney for Alharbi, Hamtramck’s mayor-elect, did not respond to Votebeat but told the Detroit Free Press he opposed counting the votes.
In its canvassing meeting the week before Thanksgiving, the Wayne County Board of Canvassers debated extensively on whether to count the 37 ballots in question. Republican members Lisa Capatina and Toni Sellars expressed concern over the broken chain of custody, while Democratic members Richard Pruess and Edward Keelean said they felt that the ballots should be counted and that further investigation was warranted.
Because the ballots had not been included in the unofficial tally, at least three of the four canvassers would have needed to vote to count them in order for them to be included.
The lawsuit asks for immediate consideration, but it is not clear when the case will be heard or resolved. Hamtramck’s new mayor is scheduled to take office Jan. 1.
Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at hharding@votebeat.org.
