On Thursday, October 20, 2022, Attorney General Dana Nessel announced that embattled Southfield City Clerk Sherikia Hawkins resigned from office after pleading no contest to a felony count of misconduct in office.
During the 2018 general election in Southfield, election officials discovered that 193 absentee ballots were mistakenly put into the ballot container without running them through the vote tabulator first. This resulted in the number of votes in the tabulator counter being 193 votes less than the number of absentee ballots in the now-sealed ballot container. Instead of correcting the mistake, Ms. Hawkins was accused of removing the 193 names from the list of returned absentee ballots. The deletion was discovered when the ballot container was opened and the votes were counted.
The Michigan Attorney General’s Office charged Sherikia Hawkins with several felonies related to forgery, altering public records and violating Michigan’s Election Law. After a preliminary examination in district court, the judge bound over for trial in the Oakland County Circuit Court the following six charges:
- Falsifying election records contrary to MCL 168.932(c).
- Falsely making, altering, forging or counterfeiting a public record contrary to MCL 750.248.
- Misconduct in office contrary to MCL 750.505.
- Using a computer to falsify election records contrary to MCL 752.796.
- Using a computer to false make, alter, forge or counterfeit a public record contrary to MCL 752.796.
- Using a computer to commit misconduct in office contrary to MCL 752.796.
The defense team filed a motion to quash the bindover of the charges from district court, and the circuit court judge granted the motion dismissing all but two of the charges (misconduct in office and using a computer to commit misconduct in office). The Michigan attorney general appealed to the Michigan Court of Appeals seeking reinstatement of all the charges. The defendant also moved in the appellate court to dismiss the remaining two counts. On January 20, 2022, the Michigan Court of Appeals released their opinion in People v Hawkins, __ Mich App __; __ NW2d __ (2022)(Docket No. 357068) reversing the circuit court’s order and reinstating all charges against Ms. Hawkins.
Regarding the falsification of election records count in violation of MCL 168.932(c), the Court of Appeals determined that probable cause was established at the preliminary exam to sustain this charge for trial:
- “The record reflects that the prosecution presented evidence at the preliminary examination that, while conducting the canvas of the 2018 general election in Southfield, the Board discovered several discrepancies and evidence that not all AV ballots were counted at the Southfield AVCBs on Election Day. After Election Day, someone with the username “[email protected]” changed 193 voter records in the QVF to indicate that either no AV ballot had been received from such voters, or for the AV ballots received, such ballots lacked a signature by Election Day. Defendant’s first name is Sherikia, and 74900 refers to the Secretary of State’s designation for Southfield. The district court could reasonably infer from this evidence that defendant willfully acted to change the QVF. While the number of AV ballots indicated as received on the QVF report sent to the Board on Election Day at the close of polls matched the number of ballots physically counted by the Board, the number of AV ballots indicated as received on the changed QVF report that defendant submitted to the Board failed to match the number of ballots physically counted by the Board, and the total number of AV ballots indicated as received on the revised QVF report equaled less than that indicated on the original QVF report.” Slip op. at 9-10.
- “The record indicates that evidence established that: (1) defendant served as the Southfield clerk, (2) defendant had custody of election records which must be made, filed, or preserved under the election law, (3) defendant willfully falsified or fraudulently altered the QVF after the election to falsely report regarding AV ballots that were in fact received and valid. Accordingly, the district court properly exercised its discretion by binding defendant over for trial on Count 1.” Slip op. at 10.
The Court of Appeals also determined that the circuit court erred in quashing the falsification of public record count in violation of MCL 750.248(1), determining that the record supported the district court’s bindover decision:
- “MCL 750.248(1) proscribes forgery as follows: A person who falsely makes, alters, forges, or counterfeits a public record . . . with intent to injure or defraud another person is guilty of a felony[.] The elements of the crime of forgery are: (1) an act which results in the false making or alteration of an instrument (which makes an instrument appear to be what it is not); and (2) a concurrent intent to defraud or injure. The key is that the writing itself is a lie.” Slip op. at 15-16 [Internal citations deleted].
- “The evidence shows that the defendant changed the Q.V.F. after the election to falsely reflect that certain absentee ballots were rejected as having no signature and then ran a new list of people who voted during the election. This new list was a forged document that was published to the board of canvassers. The list of voters is a required part of the poll book and is reviewed as an attestation that it is to be received as part of the legal proof of the identities of individuals that voted by absentee ballot during the election. Therefore, the Court finds probable cause that the crime of forgery of a public record occurred and probable cause that the defendant most likely committed the offense.” Slip op. at 16.
Since the underlying offenses were restored, the felony counts of using a computer to falsify election records and using a computer to falsify public records were restored as the Court of Appeals found that the bindover of these additional charges was supported by the record. Regarding the defendant’s motion to dismiss the count of misconduct in office, Ms. Hawkins’ lawyers argued that she could not be charged because the elements are the same as the charges of violating Michigan’s Election law. The Court of Appeals disagreed:
- “At common law, misconduct in office was defined as “corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.” An officer could be convicted of misconduct in office (1) for committing any act which is itself wrongful, malfeasance, (2) for committing a lawful act in a wrongful manner, misfeasance, or (3) for failing to perform any act that the duties of the office require of the officer, nonfeasance.” Slip op. at 18. [Internal citations deleted].
- “MCL 168.931(1)(h) does not foreclose the prosecution of a defendant for misconduct in office because the elements of the offenses are different. First, misconduct in office requires proof that the defendant acted while a public officer. Perkins, 468 Mich at 457. By contrast, MCL 168.931(1)(h) may be violated by any person with “a duty imposed upon that person by” the Michigan Election Law. Second, and relatedly, MCL 168.931(1)(h) prohibits the breach of a duty owed under the Michigan Election Law, while misconduct in office may be premised on a breach of any duty owed as a result of one’s status as a public officer. Therefore, the elements of misconduct in office differ from the elements required to prove a violation of MCL 168.931(1)(h). Therefore, a misconduct in office charge under MCL 750.505 is not foreclosed by an Election Law charge under MCL 168.931(1)(h).9 Accordingly, defendant was not entitled to dismissal of the charge of misconduct in office. Correspondingly, defendant was also not entitled to dismissal of the use of a computer charge related to the misconduct in office offense.” Slip op. at 19.
The matter was remanded back to the Oakland County Circuit Court for trial. However, shortly before the jury trial was to take place, Ms. Hawkins worked out a plea bargain with the Attorney General’s Office where she would plead no contest to one count of misconduct in office and, in exchange, the other five charges against her would be dismissed. As a result of the plea, Ms. Hawkins is convicted of a felony punishable by up to 5 years in prison and/or a fine or a fine of not more than $10,000. She is scheduled to be sentenced on December 8, 2022.
If you have further questions about Michigan’s election law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.