Michigan Supreme Court

“ As things appear to stand, then, unless the Legislature can be convinced to review the matter, individuals alleging fraud in an election can obtain review, if at all, in a quo warranto action only when executive officials decline to initiate the action, only by leave of the court, and, mostly likely, only after it is too late to matter. ”

“ Considering jurisprudentially significant constitutional claims is our core responsibility. The fact that the claims arise in a high-profile case or one that may have national implications is no reason for us to shy away from our duty to decide them. As I have discussed at some length here (and in Costantino) , our election contest laws are underdeveloped and unclear. That murkiness may explain why the petitioners here (and parties in related cases like Costantino) have had such difficulty navigating them. ”

“ Given the nature of the writ of quo warranto, it is simply not a proper vehicle for receiving any audit-related relief. As noted, mandamus might be, at least to the extent that petitioners seek to compel the Secretary of State to perform a clear legal duty. But that would not extend to this Court’s performing said audit; nowhere in the law is it this Court’s legal duty to perform any audit. ”

“ For our part, there is no need for a special master to investigate anything if it is not in service of a cause of action that the petitioners enjoy. As noted, during the vote-counting process, the question of fraud is not one that the canvassing boards can investigate; after the vote-counting is complete, the issue is one that must be raised in either a quo warranto proceeding or, as apparently is the case here, before the Legislature itself. ”

“ And as I pointed out in Costantino, Article 2, § 4 was passed at a time when audits were increasingly viewed as a tool to measure the accuracy of election results so that recounts and other procedures could be employed if the audit uncovered problems. Costantino, ___ Mich at ___; slip order at 6.
Whatever the answer may be, the importance of the issue cannot be denied. Indeed, few topics so closely affect the maintenance of our democratic principles. As noted above, our laws governing election contests are underdeveloped in the context of the election of presidential electors. ”

“ But I write separately to highlight the lack of clarity in our law regarding the procedure to adjudicate claims of fraud in the election of presidential electors. [10]
The case before the Court is no small matter. Election disputes pose a unique test of a representative democracy’s ability to reflect the will of the people when it matters most. ”

“ Although we have no absolutely definitive answers for these questions, it appears very much that petitioners are erroneously seeking to make the investigation of fraud a part of the canvassing process, and doing so by invoking statutes (MCL 168.479, MCL 168.878) that do not purport to give the judiciary the jurisdiction they ask us to exercise, which is all the more a problem given that MCL 168.846 appears to make the Legislature the exclusive arbiter of who is the proper winner of a presidential election. ”

“ Nor does their prayer for relief ask that we order the Secretary of State to perform an audit of this election under Const 1963, art 2, § 4 (1) (h) . Indeed, it is not entirely clear exactly what the nature of petitioners’ complaint even is; while MCR 2.111 (B) (1) requires that a complaint lay out each “cause of action,” the complaint recites several vague counts (“Due Process,” “Equal Protection,” and “Article II, section 1, clause 2”) that are not recognized causes of action themselves. The only recognized cause of action is Count Four, which asks for “Mandamus and Quo Warranto.” ”

“ A “past event cannot be prevented by injunction.” Rood v Detroit, 256 Mich 547, 548 (1932) . Even had that not happened, however, it does not appear that the law contemplates any role for the courts in this process. As noted by Justice Viviano, the ordinary process by which a Michigan election result can be challenged is via quo warranto proceedings. We have said
that you may go to the ballots, if not beyond them, in search of proof of the due election of either the person holding, or the person claiming the office. ”

“ Petitioners request, among other things, appointment of a special master to investigate their claims of election irregularities and fraud and to “independently review the election procedures employed at the TCF Center and throughout the State,” [8] presumably pursuant to Const 1963, art 2, § 4 (1) (h) —which was among the provisions added to the Michigan Constitution by Proposal 3 and which guarantees to “ [e] very citizen of the United States who is an elector qualified to vote in Michigan ... ”

“ The gist of petitioners’ complaint is that they are unsatisfied with the recent decision of the Board of State Canvassers to declare a winner in the election for presidential electors in Michigan. But this Court has no apparent jurisdiction to review this decision. As noted, the canvassing process is not the time to allege that an election was marred with fraud. Petitioners allege that sections of the Michigan Election Law, like MCL 168.479 and MCL 168.878, allow for decisions of the Board of State Canvassers to be challenged by a mandamus action in the Michigan Supreme Court. ”

“ I believe it is incumbent upon the Court, in these circumstances, to provide guidance so that, no matter the outcome, the people are able to understand and exercise their constitutional rights in an effective and meaningful manner. ”

“ These jurisdictional problems seemingly put to rest petitioners’ allegations about how absentee ballots were handled in this election. They ask that we “segregate any ballots counted or certified inconsistent with Michigan Election Law” and, in particular, “any ballots attributable to the Secretary of State’s absentee ballot scheme”—a reference to the Secretary of State’s decision to send out unsolicited absentee ballot applications to voters. ”

“ I believe this confusion is reflected in the fact that Justices Viviano and Zahra focus on the constitutional right to an audit that the petitioners do not actually ask for in their prayer for relief. Rather, the prayer for relief asks for a variety of essentially interim steps—taking control of ballots, segregating ballots the petitioners believe were unlawful, enjoining officials from taking action predicated on the vote counts—but does not ask for any actual electoral outcome to be changed. ”

“ Our statutes and court rule do not specify when these actions can be brought, but traditionally they required the defendant to have assumed office; thus one commentator has concluded that our framework “effectively preclude [s] election contests ... .” Discouraging Election Contests, 47 U Rich L Rev at 1028; see also Procedural Fairness, 88 Ind L J at 11. [16] With respect to presidential electors, whose office exists for only a short period, it is not at all clear how a quo warranto action could timely form the basis for an effective challenge. ”

“ Petitioners further ask that we enjoin actions that have already occurred (the certification of the winners of this election) , that we retroactively invalidate absentee ballots whose issuance they did not challenge in advance of the election, and that we preserve evidence for the Legislature to review that it either can gather for itself or that it has not asked us to assist in preserving. ”

“ The statute encourages states to adopt procedures to try election contests involving presidential electors. Id. at 585. As it currently stands, the results of any determination made under these procedures will be binding on Congress if the determination comes at least six days before the electors meet to vote. 3 USC 5.
Why is the history relevant now? Surely, one might think, after the passage of nearly 150 years our state has adopted efficient procedures to address election disputes, especially when the presidency is at stake. In many states, this is true. ”

“ Next, there is a problem of jurisdiction. There has, admittedly, never been litigation like this before in Michigan, so we have no precedents we can draw upon as a definitive resolution. However, the face of petitioners’ complaint strongly suggests there is a jurisdictional problem. ”

“ Original actions should, therefore, be afforded very close review, particularly when they raise matters under Michigan election law.
Here, petitioners have presented a significant constitutional question pertaining to the process and scope of the constitutional right to an election audit—a right explicitly placed in our Constitution by the people themselves, in whom “ [a] ll political power is inherent ... ”

“ Const 1963, art 4, § 16, as well as the plenary authority that state legislatures have over the selection of presidential electors under federal law, see US Const, art II, § 1, cl 2; 3 USC 2. [2] As Justice Viviano observes, the language of MCL 168.846 was formerly in the Michigan Constitution of 1850. When it was, we observed that it
does not permit the regularity of elections to the more important public offices to be tried by the courts. ”

“ Under these proceedings, the court can determine the “right of the defendant to hold the office.” MCL 600.4505. But these actions usually must be brought by the attorney general—only if she refuses can a private citizen seek leave of court to make the claim. ”