CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/27/2023 1

Valid Recall Signatures 

Davenport v. County of Genesee 

(Arthur J. Tarnow, E.D. Mich. 2:10-cv-13503) 

When it was determined that a petition to recall the mayor of Flint, 

Michigan, did not have enough valid signatures to qualify for a recall election, the recall campaign filed an action in state court challenging how signatures were invalidated. The county removed the 

action to federal court, which denied a preliminary injunction fifteen days after the case was removed. 

Subject: Recall elections. Topics: Getting on the ballot; case 

assignment. 

On August 31, 2010, the Committee to Recall Dayne Walling, the mayor of 

Flint, Michigan, learned that it had not submitted enough valid signatures to 

place the recall of Mayor Walling on the November 2 ballot.1

 That day, the 

Committee filed an action in Genesee County’s circuit court seeking to place 

the recall on the ballot.2

 Because the complaint included federal constitutional claims, the county removed the action to federal court in Detroit on September 2.3

 The committee moved on September 3 for a preliminary injunction.4

The court assigned the case to Eastern District of Michigan Judge Sean F. 

Cox, but he was out of town, so Judge Arthur J. Tarnow handled preliminary 

matters.5 Judge Tarnow handled all emergency cases the same: he waited until the other side was served before he conducted a proceeding.6

 A law clerk 

or case manager typically communicated with the parties to set up the first 

proceeding.7

Judge Tarnow set a hearing on the injunction motion for September 9.8

He also held hearings on September 10 and 14.9 On September 17, Judge 

1. Davenport v. Genesee County, 737 F. Supp. 2d 809, 811 (E.D. Mich. 2010) (noting that 

of over 14,000 signatures submitted 7,484 were determined to be valid, which was fewer than 

the 8,004 required); see Michael Cooper, Angry Voters Shout “Recall” at City Halls, N.Y. 

Times, Sept. 23, 2010, at A1 (reporting that the recall effort began after the mayor “laid off 

police officers and firefighters to try to make ends meet in a city with an unemployment rate 

of more than 25 percent”). 

2. Davenport, 737 F. Supp. 2d at 810–11. 

3. Notice of Removal, Davenport v. County of Genesee, No. 2:10-cv-13503 (E.D. Mich. 

Sept. 2, 2010), D.E. 1; Davenport, 737 F. Supp. 2d at 810–11. 

4. Preliminary-Injunction Motion, Davenport, No. 2:10-cv-13503 (E.D. Mich. Sept. 3, 

2010), D.E. 5; Davenport, 737 F. Supp. 2d at 810. 

5. Docket Sheet, Davenport, No. 2:10-cv-13503 (E.D. Mich. Sept. 2, 2010); Interview with 

Hon. Arthur J. Tarnow, Oct. 3, 2012. 

Tim Reagan interviewed Judge Tarnow for this report by telephone. Judge Tarnow died 

on January 21, 2022. Federal Judicial Center Biographical Directory of Article III Federal 

Judges, www.fjc.gov/history/judges. 

6. Interview with Hon. Arthur J. Tarnow, Oct. 3, 2012. 

7. Id. 

8. Notice, Davenport, No. 2:10-cv-13503 (E.D. Mich. Sept. 7, 2010), D.E. 9.
Valid Recall Signatures 

2 Federal Judicial Center 10/27/2023 

Tarnow determined that, although “there may have been some errors by Defendants in removing valid signatures, Plaintiffs have not met their burden in 

showing that the issuance of a preliminary injunction in this case is warranted.”10

Defendants are not required to use the best method of signature review. 

Human error is sometimes part of the process. Deference must be given to 

the local clerks. Even if the Clerk had wrongfully interpreted or misapplied 

the law, her actions would not rise to a Fourteenth Amendment violation, 

which could only be established with a showing of discrimination on her 

part.11

The case was dismissed voluntarily on December 16.12

9. Docket Sheet, supra note 5. 

10. Davenport v. Genesee County, 737 F. Supp. 2d 809, 815 (E.D. Mich. 2010); see

Cooper, supra note 1 (reporting that after Judge Tarnow’s ruling “the mayor posted the news 

on his blog: ‘Flint’s recall fever has broken’”). 

11. Davenport, 737 F. Supp. 2d at 814. 

12. Stipulated Order, Davenport, No. 2:10-cv-13503 (E.D. Mich. Dec. 16, 2010), D.E. 30 

(signed by Judge Cox).