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State rejects challenge to Marlinga's eligibility to run for U.S. House


The Michigan Secretary of State's office has rejected a Republican challenge to the eligibility of retired Macomb County Circuit Judge Carl Marlinga as a candidate for U.S. House. 

The challenge, filed last month, had argued that Marlinga, a Democrat, is not eligible because the Michigan constitution prohibits judges from running for non-judicial office for a year after leaving the bench. 

Marlinga, 75, of Sterling Heights stepped down from the bench Feb. 25 and is now running for the Democratic nomination for U.S. House in Michigan's new 10th District that covers parts of Macomb and Oakland counties.

Jonathan Brater, director of elections for the state, wrote Wednesday to GOP official Barbara VanSyckel saying he determined that Marlinga should not be disqualified from the ballot because the provision of the Michigan constitution that VanSyckel cited does not apply to candidates for federal office. 

Brater pointed to a 1942 opinion by then-Michigan GOP Attorney General Herbert Rushton, which found that the cooling-off period for judges applies to candidacies for state office and "did not intend to increase, diminish or change the qualifications of either senators or representatives in Congress, because the Constitution of the United States contains no such restrictions." 

Marlinga attorney Mark Brewer had cited the Rushton opinion in his legal response to the challenge earlier this month. Rushton's opinion "cleared the way" for Wayne County Circuit Court Judge Homer Ferguson to seek the GOP nomination for U.S. Senate, which he won, Brewer said. He went on to serve two terms in the Senate. 

Brater also rejected a second challenge to Marlinga's affidavit of identity filed with his election paperwork, which alleged that he had outstanding campaign finance statements, reports, filing fees or fines, which Brater said he did not. 

VanSyckel has said she is Marlinga's neighbor in Sterling Heights and the vice chair of the Michigan 10th Congressional District Republicans. She could choose to appeal Brater's determination in court or ask the Board of State Canvassers to act when it meets next week.

“The opinion is the Democrat Secretary of State’s staff recommendation at this point," said a source familiar with Republicans’ legal strategy. "We don’t know what action the Board of Canvassers may take at their meeting next week, and/or if this staff opinion — which disregards clear Michigan law — will be challenged in court.”

Marlinga is running in a Democratic field that includes Sterling Heights Councilman Henry Yanez; Warren City Councilwoman Angela Rogensues; Huwaida Arraf, a civil rights attorney in Macomb Township; and Rhonda Powell, the former director of Macomb County Health and Community Services.

Republican businessman John James, who ran unsuccessfully for the U.S. Senate twice, also is running in the 10th, which is expected to be a competitive district.

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Marlinga has said that the cooling-off period doesn't apply to his situation because it conflicts with a 1995 ruling by the U.S. Supreme Court in United States Term Limits v. Thornton. The high court held that states may not impose congressional qualifications in addition to those spelled out in the U.S. Constitution.

Marlinga has also highlighted the example of Oakland County Circuit Judge Alice Gilbert who resigned in May 1992 to run in the August 1992 Republican primary for the U.S. House in the 11th District. She lost to Joe Knollenberg and later returned to the bench. 

"It was a totally flaky challenge to begin with," Marlinga said Wednesday. "The other side was trying to make something out of nothing." 

The Secretary of State's office on Tuesday also sent notice to the campaign of Faiz Aslam, who had filed to run for U.S. House in the new 6th District, that Aslam was disqualified for failing to check the box on the affidavit of identity confirming a candidate is a U.S. citizen, according to SOS spokeswoman Tracy Wimmer.

 mburke@detroitnews.com