Angelic Johnson v. Secretary of State ( 2020 )

Order Michigan Supreme Court
Lansing, Michigan
December 9, 2020 Bridget M. McCormack,
Chief Justice
162286 & (3)(5)(6)(9)(10) David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
ANGELIC JOHNSON and LINDA LEE Richard H. Bernstein
TARVER, Elizabeth T. Clement
Petitioners, Megan K. Cavanagh,
Justices
v SC: 162286
SECRETARY OF STATE, CHAIRPERSON OF
THE BOARD OF STATE CANVASSERS,
BOARD OF STATE CANVASSERS, and
GOVERNOR,
Respondents.
_________________________________________/
On order of the Court, the motions for immediate consideration are GRANTED.
The petition for extraordinary writs and declaratory relief is considered, and it is
DENIED, because the Court is not persuaded that it can or should grant the requested
relief. The motions to intervene are DENIED as moot.
CLEMENT, J. (concurring).
I concur in the Court’s order denying the relief sought in this complaint. Indeed, I
do so in large part due to the legal authority cited by Justice VIVIANO in dissent. It is
undeniable that the legal authority in this area has not been the subject of much litigation,
and therefore there is little caselaw on point. However, there are many seemingly
apparent answers—many of which are discussed at some length by Justice VIVIANO—
and when these answers are combined with the defects in petitioners’ presentation of
their case, I do not think it is an appropriate exercise of this Court’s discretion to prolong
the uncertainty over the legal status of this election’s outcome. This Court routinely
chooses not to hear cases which raise interesting and unsettled legal questions in the
abstract when we conclude the case would be a poor practical vehicle for addressing
those questions—which is my view of this case and these questions. Moreover, I believe
it would be irresponsible to continue holding out the possibility of a judicial solution to a
dispute that it appears must be resolved politically.
I think it is important at the outset to have a basic understanding of how elections
in Michigan work. On Election Day, votes are cast. Once Election Day is over, the votes
in each race are then counted at the precinct level. See MCL 168.801 (“Immediately on
closing the polls, the board of inspectors of election in each precinct shall proceed to
canvass the vote.”). Those results are then forwarded to the county. See MCL 168.809.
The results are then canvassed by the board of county canvassers, see MCL 168.822(1),
which declares the winners of county and local races, MCL 168.826(1), while tabulating
2
the results of elections for various statewide and other races within that county and
forwarding those results to the Board of State Canvassers, MCL 168.824(1) and 168.828.
The Board of State Canvassers then canvasses the figures from around the state, MCL
168.842(1), tabulating the figures and declaring the winners of the various races that the
Board of State Canvassers must manage, MCL 168.844 and 168.845. Once the
canvassing is finished, the county clerk (for county and local offices) and the Secretary of
State (for higher offices) issues a certificate of election to the named winners. MCL
168.826(2) and 168.845.
At no point in this process is it even proper for these individuals to investigate
fraud, illegally cast votes, or the like. “[I]t is the settled law of this State that canvassing
boards are bound by the return, and cannot go behind it, especially for the purpose of
determining frauds in the election. Their duties are purely ministerial and clerical.”
McQuade v Furgason, 91 Mich 438, 440 (1892). After a certificate of election is issued,
it is possible to challenge whether it was issued to the right individual. Usually this is
done via a court action seeking what is called a writ of “quo warranto.” See MCL
600.4501 et seq. There are debates at the margins about exactly how this process might
work—as noted by Justice VIVIANO, there is some dispute about who has standing to
maintain an action for quo warranto and whether it can commence before an allegedly
wrongful officeholder takes office—but this is the basic outline: the votes are counted, a
certificate of election is issued, and then we debate whether said certificate was issued to
the wrong individual. This is because of the limited authority of the canvassing board to
simply tally votes cast.
The duties of these [canvassing] boards are simply ministerial: their
whole duty consists in ascertaining who are elected, and in authenticating
and preserving the evidence of such election. It surely cannot be
maintained that their omissions or mistakes are to have a controlling
influence upon the election itself. It is true that their certificate is the
authority upon which the person who receives it enters upon the office, and
it is to him prima facie evidence of his title thereto; but it is only prima
facie evidence. [People ex rel Attorney General v Van Cleve, 1 Mich 362,
366 (1850).]
It is in this context that I believe we must read petitioners’ complaint. At no point
does their complaint ask that we declare that a particular slate of presidential electors was
duly elected. 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.” These
3
certainly are recognized causes of action at common law, although they are distinct
causes of action that are addressed to different problems. “[T]o obtain a writ of
mandamus, the plaintiff must have a clear legal right to the performance of the specific
duty sought to be compelled and the defendants must have a clear legal duty to perform
the same.” State Bd of Ed v Houghton Lake Community Sch, 430 Mich 658, 666 (1988).
Quo warranto, by contrast, is “the only way to try titles to office finally and
conclusively . . . .” Lindquist v Lindholm, 258 Mich 152, 154 (1932). Combining them
makes it unclear what petitioners are asking this Court to do—command a public officer
to perform a legal duty (and if so, which officer, and what duty?), or test title to office?1 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. This only begins the problems with this
proceeding.
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. 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. But
these sections appear to be inapplicable—MCL 168.479 is in the chapter on initiative and
referendum, where the responsibilities of the Board of State Canvassers are far more
involved than merely tabulating votes, and MCL 168.878 is in the chapter on recounts,
which is also not implicated here. Even if either statute were applicable here, there is no
theory that the petitioners have put forward suggesting that the Board of State Canvassers
failed to perform a legal duty it was obliged to perform. Instead, as noted by Justice
VIVIANO, in this context the role of the canvassing board is ministerial, with no function
other than to tabulate the votes cast and determine which candidate (or candidates)
received the most votes. To the extent that petitioners are trying to revisit the
determination of the Board of State Canvassers, it appears they cannot, at least absent the
unlikely scenario of the board simply having performed its computations incorrectly,
which is not alleged here.
1
Notably, none of the named defendants are alleged to be usurpers to any office, which
indicates that plaintiffs have not satisfied the pleading requirements for a quo warranto
action under MCL 600.4505(1).
4
Petitioners also ask that we enjoin respondents “from finally certifying the election
results and declaring winners of the 2020 general election . . . .” As an initial matter, this
would seem to be moot—it has been widely reported that this already has occurred. 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.
And this is as it should be. In a republican government, where the exercise
of official power is but a derivative from the people, through the medium of
the ballot box, it would be a monstrous doctrine that would subject the
public will and the public voice, thus expressed, to be defeated by either the
ignorance or the corruption of any board of canvassers. [Van Cleve, 1 Mich
at 365-366.]
However, when the Board of State Canvassers must declare the winner of an election—as
it must with presidential electors, MCL 168.46—the Legislature has, in MCL 168.846,
apparently suppressed quo warranto proceedings and reserved to itself the prerogative of
determining who the winner is. Such an arrangement is consistent with how disputes
over elections to the United States Congress and the Michigan Legislature are resolved,
see US Const, art I, § 5, cl 1; 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. It has provided that in all cases,
where . . . the result of elections is to be determined by the Board of State
Canvassers, there shall be no judicial inquiry beyond their decision. . . .
This provision was doubtless suggested by the serious difficulties
2
One could fairly question whether it is constitutional for MCL 168.846 to reserve to the
Legislature the prerogative to settle disputes over elections to offices required by the
Michigan Constitution—a Legislature inclined to abuse this power could conceivably
nullify an election that the Michigan Constitution requires to be held. But the Michigan
Constitution does not require that presidential electors be themselves popularly elected,
and reserving final decision-making authority in the Legislature as to that specific office
is consistent with federal constitutional and statutory law.
5
which would attend inquiries into contested elections, where the ballots of a
great number of election precincts would require to be counted and
inspected; and probably, also, to discourage the needless litigation of the
right to the higher public offices at the instance of disappointed candidates
where the public interest does not appear to require it. A legislative body
can exercise a discretion in such cases, and could not be compelled to enter
upon such an inquiry except upon a preliminary showing which the courts
are not at liberty to require. [People ex rel Royce v Goodwin, 22 Mich 496,
501-502 (1871).]
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. Whatever the legality of this decision on the Secretary of State’s part, it does not
appear that the courts are the proper forum for challenging the validity of any votes cast
in the race for presidential electors (as well as some other offices). For those offices
where it might be challengeable, the proper means would be a quo warranto action. That
said, I would note that laches may apply here—the time to challenge this scheme may
have been before the applications were mailed out (or at least before the absentee ballots
were cast), rather than waiting to see the election outcome and then challenging it if
unpalatable.
These jurisdictional concerns are not the only problem with this petition.
Petitioners’ prayer for relief does not ask that we direct the Secretary of State to conduct
an audit of this election, although their briefing does invoke the right to an audit under
Const 1963, art 2, § 4(1)(h)—added to our Constitution two years ago as part of Proposal
18-3. To the extent that the petitioners are trying to get a writ of mandamus against the
Secretary of State to perform an immediate audit under the constitutional language, 3 I
3
Justice VIVIANO says I am “mistaken in suggesting that petitioners here have not asked
for an audit,” because petitioners’ complaint declares several times that the respondents
“owe citizens an audit of election results that is meaningful and fair and to safeguard
against election abuses.” In my view, asserting what citizens are owed is a far cry from
demanding actual relief—particularly in light of the conceptual confusion that pervades
this petition. The fact that Justice VIVIANO must patch together what the petitioners are
apparently after by combining the petition’s allegations with its prayer for relief and the
accompanying brief goes to show how weakly it is presented. Moreover, as noted by
Justice VIVIANO, petitioners’ brief asks us to “enter an order requiring that the Michigan
Legislature convene a joint convention to analyze and audit the election returns” or that
this Court “should oversee an independent audit.” Given the nature of the writ of quo
warranto, it is simply not a proper vehicle for receiving any audit-related relief. As
6
would note at the outset that they have apparently made a procedural misstep. Although
the Michigan Constitution gives this Court jurisdiction over mandamus actions, see Const
1963, art 6, § 4 (stating that “the supreme court shall have . . . power to issue, hear and
determine prerogative and remedial writs”), we have provided by rule that such actions
must begin in either the Court of Appeals or the Court of Claims, MCR 3.305(A)(1).
“Reasons of policy dictate that such complaints be directed to the first tribunal within the
structure of Michigan’s one court of justice having competence to hear and act upon
them.” People v Flint Muni Judge, 383 Mich 429, 432 (1970). This is why the court rule
for original actions in our Court refers only to proceedings for superintending control,
which extends to either the lower courts or certain other judicial entities, MCR
7.306(A)(1) and (2), not the executive branch. We have indicated a willingness to
disregard such errors in the past, see, e.g., McNally v Wayne Co Bd of Canvassers, 316
Mich 551, 555-556 (1947), but petitioners’ audit-related arguments begin in a bad
position.
More importantly, there is no apparent purpose to which the audit sought by the
petitioners can be put in light of the above-mentioned jurisdictional limits on the
judiciary’s ability to revisit the outcome of this election. Given the apparent inability of
canvassing boards to investigate fraud, there is a fundamental disconnect between
petitioners’ allegations of fraud and their request for an audit. Justice ZAHRA “would
have ordered an immediate evidentiary hearing before a special master for the purpose of
ferreting out whether there is any substance to the very serious-but-as-yet-unchallenged
allegations of irregularities and outright violations of Michigan Election Law that
petitioners assert took place before the vote was certified . . . .” But such an evidentiary
hearing is unnecessary—in any event, those boards of canvassers had no authority to
perform (or at least act on) such a factual investigation. Moreover, the boards have
certified the results and certificates of election have been issued; it is difficult to see how
any judicial proceeding could undo that process. I fail to see how those certification
choices can be taken back any more than the Governor can take back a pardon once
issued. Cf. Makowski v Governor, 495 Mich 465 (2014). This is not to say that
certificates of election cannot be challenged; rather, it is to say that an election contest
needs to take the form of a challenge to the certificate of election, rather than a challenge
to the ministerial certification process.
There is also reason to believe that the right to an audit does not extend to
changing the outcome of an election. The statute that implements the right to an audit
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. The same can also be said of the Legislature, which is in addition not even a
named defendant in this action, so it is hard to imagine how we would order the
Legislature to do anything even if that were not an assault on the separation of powers.
7
makes clear that it “is not a recount and does not change any certified election results.”
MCL 168.31a(2). While one might argue that the statute does not completely vindicate
the petitioners’ constitutional “right to have the results of statewide elections audited,”
Const 1963, art 2, § 4(1)(h), it seems important to note that the Constitution provides that
the audit shall be performed “in such a manner as prescribed by law,” id. There is a
somewhat confusing internal contradiction in the constitutional text, as the audit right is
the only one said to be “as prescribed by law,” but all of the rights in § 4(1) are said to be
“self-executing.” However, I see nothing to be gained in judicial exploration of this
tension and examination of the scope of the audit right conveyed in § 4(1)(h) if there is
no purpose to which the results could be applied. Moreover, deferring to the audit right
as it is expressed in MCL 168.31a(2) would be consistent with the outcome of the
remainder of the cases that have come to us which implicate Proposal 18-3. While this
Court has denied leave in each of these cases and thus has taken no institutional position,
see MCR 7.301(E), the consistent result has been to unsettle the least amount of the
Michigan Election Law as possible when provisions of it are challenged under Proposal
18-3. We have thus left in place the statutory deadline of 8 p.m. on Election Day for
absentee ballots to be received and counted as well as certain statutory voter registration
requirements, and denied a prior challenge seeking an audit outside the boundaries of
MCL 168.31a. See League of Women Voters v Secretary of State, ___ Mich ___ (2020)
(Docket No. 161671), denying lv from ___ Mich App ___ (2020), recon den ___ Mich
___ (2020); Promote the Vote v Secretary of State, ___ Mich ___ (2020) (Docket No.
161740), denying lv from ___ Mich App ___ (2020); Priorities USA v Secretary of State,
___ Mich ___ (2020) (Docket No. 161753), denying lv from ___ Mich App ___ (2020);
Costantino v Detroit, ___ Mich ___ (2020) (Docket No. 162245). As I have been the
only member of the Court in the majority on all of these cases and the instant case, I
cannot speak for my colleagues, but for my own part I can say that a desire to unsettle as
little of the Michigan Election Law as possible has animated my approach to these cases.
Petitioners’ remaining requests in their prayer for relief put them in the curious
position of volunteers in defense of the Legislature’s needs. Thus, they ask that we “take
immediate custody and control of all ballots, ballot boxes, poll books, and other indicia of
the Election . . . to prevent further irregularities, and to ensure that the Michigan
Legislature and this Court have a chance to perform a constitutionally sound audit of
lawful votes.” But if the Legislature needs to seize records, it has some authority to do
so, see MCL 4.541, and if it needs judicial assistance in this regard, it is free to ask us.
They similarly ask that we “appoint a special master or committee from both chambers of
the Michigan Legislature to investigate all claims of mistake, irregularity, and fraud at the
TCF Center . . . .” But the separation of powers makes it unthinkable that we would
direct the Legislature to convene a committee to investigate anything—that branch’s
choice to investigate is its own.4 For our part, there is no need for a special master to
4
Justice VIVIANO suggests the possibility that the “results of an audit could be used by
petitioners to convince the Legislature to take up the matter and to prevail in that venue,”
8
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.
If the scope of the constitutional right to an audit that animates Justices ZAHRA’s
and VIVIANO’s dissenting statements were squarely presented and likely to be dispositive,
I would be open to hearing this case. But the scope of that right is not very well
presented (as noted, it does not appear in petitioners’ prayer for relief), it does not appear
to be dispositive, and petitioners’ complaint is marred by further problems besides these.
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. Petitioners also
gesture toward an audit right which MCL 168.31a indicates is too circumscribed to give
them the outcome they seek, and even if MCL 168.31a is narrower than the constitutional
audit right of Const 1963, art 2, § 4(1)(h), it remains the case that MCL 168.846
apparently makes the Legislature the arbiter of this dispute to the exclusion of the
judiciary. 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. I simply do not believe this is a compelling case
to hear.
In short, even if this petition can be construed as requesting an audit, what it
requests is beyond the bounds of MCL 168.31a; and even if petitioners received said
audit, it appears that it could not be used to revisit the canvassing process, because MCL
168.846 apparently reserves to the Legislature rather than the judiciary the final say on
who Michigan’s presidential electors are. For us to scrutinize these admittedly
unresolved questions further, we must do so on the strength of a petition we may not have
jurisdiction to entertain and within the four corners of which it is not clear what actual
cause of action it is pleading, what relief it is seeking, or on what theory it believes it is
owed relief from the named defendants. In light of these myriad difficulties—only some
of which implicate the apparent merits of the legal issues the petitioners attempt to
but their success or failure before the Legislature is a political rather than a legal
question. Nobody asserts that the right created by Const 1963, art 2, § 4(1)(h) entitles the
petitioners to information on the schedule they prefer to try and persuade the Legislature
to take action.
9
present to us—I consider it imprudent to hear this matter, a conclusion only amplified by
my view that it is irresponsible to continue holding out the possibility of a judicial
solution to a political dispute that needs to be resolved with finality. Petitioners’
complaint casts more heat than light on the legal questions it gestures toward, and would
not help us in providing a definitive interpretation of the law in this area. I therefore
concur with our order denying petitioners relief.
ZAHRA, J. (dissenting).
Just two years ago, through the exercise of direct democracy and the constitutional
initiative process, the people of Michigan amended our Constitution to expand greatly
how Michigan residents may exercise their right to vote. Among the additions to the
Michigan Constitution effected by what was then known as Ballot Proposal 2018-3
(Proposal 3) were provisions that: (i) require the Secretary of State automatically to
register to vote all Michigan residents conducting certain business with the Secretary of
State, unless the resident specifically declines registration; (ii) allow same-day
registration with proof of Michigan residency; and (iii) permit no-reason absentee voting.
Critics of Proposal 3 argued that these changes would increase opportunities for voter
fraud and weaken the integrity of the electoral process, thereby placing in doubt the
accuracy and integrity of Michigan’s election returns.5 Proponents responded that
Proposal C would promote and ensure the accuracy and integrity of elections by
constitutionally guaranteeing the right to audit the results.6
In the wake of the very next election cycle to follow the adoption of these
sweeping election reforms of 2018, petitioners filed an original action in this Court under
Const 1963, art 6, § 4 and MCL 600.217(3) “seeking extraordinary writs of mandamus,
prohibition, and declaratory and injunctive relief.” In support of their claims, petitioners
invoke MCL 168.479, which specifies that “any person who feels aggrieved by any
determination made by the board of state canvassers may have the determination
reviewed by mandamus or other appropriate remedy in the supreme court.” 7 Petitioners
5
See Mack, Michigan Approves Proposal 3’s Election Reforms, MLive (updated January
29, 2019)

(accessed December 8, 2020) [https://perma.cc/A8Z9-B46G].
6
Id.
7
Justice CLEMENT’s statement concurring in the Court’s order argues that MCL
168.479(1) does not confer jurisdiction in this Court to hear petitioners’ challenge
because it is located in the chapter on initiatives and referenda. But the plain language of
MCL 168.479(1) is broad: “[A]ny person who feels aggrieved by any determination
made by the board of state canvassers may have the determination reviewed by
mandamus or other appropriate remedy in the supreme court” (emphasis added).
10
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 . . . [t]he right to have the results of
statewide elections audited, in such manner as prescribed by law, to ensure the accuracy
and integrity of elections.”
Based on the pleadings alone, a majority of the Court today denies petitioners’
requested relief through a short form order of denial that concludes the majority “is not
persuaded that it can or should grant the requested relief.” I dissent from the summary
dismissal of petitioners’ action, without ordering immediate oral argument and additional
briefing. As pointed out in the statements of my colleagues, there are threshold questions
that must be answered before addressing the substantive merits of petitioners’ claims.
But rather than summarily dismissing this action because procedural questions exist, I
would have ordered immediate oral argument and briefing to address these threshold
questions, as well as the meaning and scope of implementation of Const 1963, art 2,
§ 4(1)(h).
The matter before us is an original action asking the Court to invoke the power of
mandamus, superintending control, and other extraordinary writs to provide declaratory
relief. As such, this matter should be distinguished from a typical application seeking
leave to appeal from the Court of Appeals. Original actions are limited to a small class of
cases particularly described in Const 1963, art 6, § 4. 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
Moreover, it would be strange to suggest that MCL 168.479(1) applies only to initiatives
and referenda, as precisely that sort of limiting language is found not in MCL 168.479(1)
but, rather, MCL 168.479(2), which provides in relevant part that any person who “feels
aggrieved by any determination made by the board of state canvassers regarding the
sufficiency or insufficiency of an initiative petition . . . .” (emphasis added). Therefore,
on the basis of the statutory text, I am not nearly as confident as Justice CLEMENT that
MCL 168.479(1) does not confer jurisdiction in this Court to hear petitioners’ challenge.
But to the extent we have questions about the Court’s jurisdiction, I would explore them
at oral argument.
8
Petition for Extraordinary Writs & Declaratory Relief, p 53.
11
inherent . . . .” Const 1963, art 1, § 1. Not only that, but Const 1963, art 2, § 4(1)(h) has
remarkable resonance for the precise controversy now before this Court because, even
when viewed in hindsight, it seems unlikely that the people of Michigan could have
crafted language that would more directly address this circumstance than they have
already done in ratifying this very provision. Accordingly, I believe we owe it to the
people of Michigan to fully and completely review the claims asserted by petitioners.
For this reason, I would have immediately ordered oral arguments and briefing to assess,
as expeditiously as was practicable, whether petitioners are properly before this Court
and, if so, both provide guidance as to the meaning and scope of the right to an audit
under Const 1963, art 2, § 4(1)(h), and determine whether petitioners are entitled to any
of the other relief they seek.
MARKMAN, J., joins the statement of ZAHRA, J.
VIVIANO, J. (dissenting).
For the second time in recent weeks, individuals involved in last month’s election
have asked this Court to order an audit of the election results under Const 1963, art 2, § 4.
See Costantino v Detroit, ___ Mich ___ (2020) (Docket No 162245). As in that case,
petitioners here allege that election officials engaged in fraudulent and improper conduct
in administering the election. In support of these claims, petitioners have submitted
hundreds of pages of affidavits and expert reports detailing the alleged improprieties.
Here, as in Costantino, I would grant leave to appeal so we can determine the nature and
scope of the constitutional right to an election audit.9 After all, “[i]t is emphatically the
province and duty of the judicial department to say what the law is.” Marbury v
Madison, 5 US (1 Cranch) 137, 177 (1803). 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. See Foley, Ballot Battles: The History of Disputed Elections in the United States
(New York: Oxford University Press, 2016), pp 17-18. But it is a test our country has
survived, one way or another, since its inception. The Founding Fathers faced their share
of contested elections, as have subsequent generations. See generally id.
9
Because of the time constraints imposed by federal law on the appointment of and
balloting by federal electors, I would hear and decide this case on an expedited basis so
that, if we accept petitioners’ interpretation of the constitutional right to an election audit,
they will be able to exercise that right in a timely and meaningful manner.
10
I do not address whether a claim of fraud could be adjudicated or investigated in the
context of a recount.
12
But in the context of presidential elections, all these episodes pale in comparison
to the contest of 1876, which resulted in challenges and changes that helped set the stage
for the present dispute.11 As with the current case, many of the ballot-counting contests
in 1876 focused on the work of canvassing boards and the function of courts; they also
involved the role of Congress itself, which created an electoral commission to adjudicate
the dispute and help Congress select a victor. See Nagle, How Not to Count Votes, 104
Colum L Rev 1732 (2004) (reviewing books on the 1876 election); see also Ewing,
History and Law of the Hayes-Tilden Contest Before the Electoral Commission: The
Florida Case, 1876-77 (Washington, DC: Cobden Publishing Co, 1910), pp 148-153
(discussing the litigation in Florida courts over the role of canvassing boards).
Among the modes for challenging the election in 1876 (and in the earlier election
of 1872, among others) were lawsuits brought to obtain a writ of quo warranto. See
Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56
Fla L Rev 541, 573 (2004). With no common-law action available to directly contest an
election, Bickerstaff, Counts, Recounts, and Election Contests: Lessons from the Florida
Presidential Election, 29 Fla St U L Rev 425, 431 (2002), the archaic writ of quo
warranto became the tool in England and in this country to dispute an ostensibly
successful candidate’s right to office. Conscientious Congressman’s Guide, 56 Fla L Rev
at 570-571.12 A quo warranto proceeding was instituted to “try titles to office” based on
claims that the officeholder had wrongfully intruded into or usurped the office. See
Gildemeister v Lindsay, 212 Mich 299, 303 (1920) (citation and quotation marks
omitted); see also Cooley, Constitutional Limitations (5th ed), p 788 (“[T]he proper
proceeding in which to try [challenges to election results] in the courts is by quo
warranto, when no special statutory tribunal is created for the purpose.”).
The problem, as the elections in the 1870s revealed, was that quo warranto actions
were ill-suited to keep pace with the Electoral College: in the two presidential elections
of that decade, none of the proceedings “even had their trial phase completed before the
electors balloted.” Conscientious Congressman’s Guide, 56 Fla L Rev at 573. In
response, Congress passed the Electoral Count Act in 1887. Id. at 542, 583. The statute
encourages states to adopt procedures to try election contests involving presidential
11
As Justice COOLEY wrote of the 1876 election, “the country is thoroughly warned, that
in any close election the falsification of the result is not so difficult that unscrupulous
men are not likely to contemplate it,” and the practice of relying on state determinations
of the vote “makes the remedy exceedingly uncertain, if dishonest men, who have control
of the State machinery of elections, shall venture to employ it to defeat the will of the
people.” Cooley, The Method of Electing the President, 5 Int’l Rev 198, 201 (1878).
12
Quo warranto challenges date back to the middle ages. See Sutherland, Quo Warranto
Proceedings in the Reign of Edward I, 1278-1294 (Oxford: Clarendon Press, 1963), pp 1-
6 (noting the king’s extensive use of quo warranto in the thirteenth century).
13
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. In almost all,
postelection contests for legislative seats are ultimately decided by the legislatures
themselves, although some states have provided for preliminary determinations by the
courts or independent commissions. See Douglas, Procedural Fairness in Election
Contests, 88 Ind L J 1, 5-8, 24-29 (2013); see also Berdy v Buffa, 504 Mich 876, 877-879
(2019) (noting that such provisions are commonplace and holding that they only apply to
postelection contests of a challenged election result).13 For disputed gubernatorial
elections, a plurality of states have enacted legislation allowing the losing candidate to
contest the election in court, either at the trial or appellate court level; others place the
decision in the hands of the legislature or a nonjudicial tribunal. Procedural Fairness, 88
Ind L J at 9-20. Although only about 20 states have specific provisions for presidential-
election disputes, parties often can bring these challenges under the state’s general
election-contest statutes. Id. at 29-34.14
Unfortunately, while the vast majority of states have adopted legislation creating a
mechanism for the summary or expedited resolution of election contests, Michigan has
not. Cf. Wyo Stat Ann 22-17-103 (requiring election contests to be expedited); NJ Stat
Ann 19:29-5 (requiring summary proceedings); Neb Rev Stat 32-1110 (requiring
summary proceedings with a hearing not later than 15 days after the “matter is at issue”).
Indeed, as the controversies arising out of the 2020 general election have shown, there is
rampant confusion in our state concerning the proper mechanism for contesting elections
in general, and presidential elections in particular, on the basis of fraud. Much of the
litigation so far this year has focused on the decisions of the canvassing boards. But
“[w]e have long indicated that canvassing boards’ role is ministerial and does not involve
investigating fraud.” Costantino, ___ Mich at ___; slip order at 6-7 (VIVIANO, J.,
dissenting) (collecting sources). There is simply no statutory framework for the boards to
adjudicate fraud. And, strikingly, the Legislature has not, in any other statute, expressly
provided a mechanism for determining disputes specific to presidential electors as
envisioned in the Electoral Count Act.
13
The same is true of contests in congressional elections. See US Const, art 1, § 5.
14
The American Law Institute has recently issued model frameworks for states to
consider adopting in order to comprehensively regulate both election disputes in general
and presidential-election disputes in particular. American Law Institute, Principles of the
Law, Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting
Disputes (2019), Parts II and III.
14
And thus, we remain one of the only states without any clear framework to enable
and regulate election contests. See Procedural Fairness, 88 Ind L J at 10; Douglas,
Discouraging Election Contests, 47 U Rich L Rev 1015, 1028 (2013).15 Instead, our state
has various elements that do not quite add up to a coherent system. As noted, our
Legislature has codified the ancient writ of quo warranto. See MCL 600.4501 et seq. and
MCR 3.306; see also MCL 168.861 (“For fraudulent or illegal voting, or tampering with
the ballots or ballot boxes before a recount by the board of county canvassers, the remedy
by quo warranto shall remain in full force, together with any other remedies now
existing.”). 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. MCL 600.4501. And our caselaw has suggested that to prevail in the action, the
plaintiff must present evidence that he or she is entitled to the office. See Marian v
Beard, 259 Mich 183, 187 (1932) (“The [quo warranto] suit by a citizen, on leave of
court, is a private action, and, therefore, the plaintiff must allege in the information the
facts which give him the right to sue. Such allegations necessarily include
the . . . showing of title in plaintiff.”) (citations and comma omitted); Barrow v Detroit
Mayor, 290 Mich App 530, 543 (2010) (noting caselaw). 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. Nonetheless, we have stated that “ ‘[t]he only way to try titles to office finally
and conclusively is by quo warranto.’ ” Sempliner v FitzGerald, 300 Mich 537, 544-545
(1942), quoting Frey v Michie, 68 Mich 323, 327 (1888).
15
See also Developments in the Law, Postelection Remedies, 88 Harv L Rev 1298, 1303
n 22 (1975) (noting that, at the time, Michigan was one of “[f]our states [that] do not
generally provide for election contests, but do make available the writ of quo warranto”);
Nat’l Conference of State Legislatures, After the Voting Ends: The Steps to Complete an
Election (October 28, 2020) (“Forty-four states have statutes pertaining to election
contests. The states lacking such statutes are . . . Michigan . . . .”)
(last accessed Dec 8, 2020) [https://perma.cc/5RQ7-
UGR9].
16
The lead opinion in In re Servaas, 484 Mich 634, 643 n 15 (2009) (opinion of
WEAVER, J.), suggested that quo warranto actions could be launched without regard to
whether the defendant was currently in office. But as the dissenters cogently observed,
quo warranto historically applied only “to claims that a public official is currently
exercising invalid title to office.” Id. at 664 (MARKMAN, J., dissenting).
15
Despite the apparent exclusiveness of the quo warranto proceeding, MCL 168.846
provides that “[w]hen the determination of the board of state canvassers is contested, the
legislature in joint convention shall decide which person is elected.” This statute contains
language that previously appeared in our 1850 Constitution as Article 8, § 5.17 Under
that constitutional provision, we held that the Legislature had “discretion” and that we
could not require our coordinate branch to act. People ex rel Royce v Goodwin, 22 Mich
496, 502 (1871); see also Dingeman v Bd of State Canvassers, 198 Mich 135, 137 (1917)
(“The legislature, bound by no hard and fast rule, may or may not, in its discretion,
entertain contests.”). We further explained that the rationale for taking these disputes out
of the courts was the “serious difficulties which would attend inquiries into contested
elections, where the ballots of a great number of election precincts would require to be
counted and inspected . . . .” Goodwin, 22 Mich at 501; see also Dingeman, 198 Mich at
137 (“The determination of the legislature is a finality, and private parties, ambitious to
fill these offices, or litigious in character, cannot compel action by the legislature or go
17
The statute and constitutional provision have interesting histories. As described by one
law professor from the period, Const 1850, art 8, § 5 ended the prevailing practice of
having “all contests concerning elections to office . . . decided by the courts.” Wells,
Reilly-Jennison: An Address to the People on the Recent Judicial Contest, Detroit Free
Press (March 27, 1883), p 4; see also University of Michigan, Michigan Law, William P.
Wells, Faculty, 1874-1891
(accessed Dec 7, 2020) [https://perma.cc/V2PS-Z8ET]. But
with the passage of this new constitutional section in 1850, “the power to decide election
contests was taken away from the courts, in respect to the State officers named, and such
other officers as the Legislature, by subsequent statutes, might add to the list.” Wells,
Reilly-Jennison, p 4. This constitutional provision was carried over in the 1908
Constitution, see Const 1908, art 16, § 4. For some unknown reason, in 1917 the
Legislature enacted the same substantive rule in statutory form. 1917 PA 201, chap XIX,
§ 12. It has remained there since and is now codified at MCL 168.846. See 1925 PA
351, part 4, chap XVI, § 11; 1954 PA 116, § 846. In the meantime, the voters amended
the constitutional provision in 1935 so that the Legislature could prescribe rules by which
the Board of State Canvassers would oversee election contests. See Ballot Proposal No.
1, 1935, amending Const 1908, art 16, § 4 (“In all cases of tie vote or contested election
for any state office, except a member of the legislature, any recount or other
determination thereof may be conducted by the board of state canvassers under such laws
as the legislature may prescribe.”). At the convention that produced our current
Constitution, the constitutional provision was considered to be “legislative in character”
and thus was excluded altogether from the constitutional text. 1 Official Record,
Constitutional Convention 1961, p 846 (Exclusion Report 2016). The convention
committee that recommended the exclusion noted that statutes already governed this
issue and the Legislature had authority over this area. Id.
16
elsewhere and secure delay in carrying out the recorded will of the electorate.”). As a
result, in Goodwin, which involved a petition for a writ of quo warranto, we stated that
this constitutional language “does not permit the regularity of elections to the more
important public offices to be tried by the courts.” Goodwin, 22 Mich at 501. This rule
has been followed in numerous cases, including in elections for the judiciary—but it has
not been cited or discussed by this Court or the Court of Appeals in many decades.18 But
the Senate’s rules currently provide for these contests. Senate Rule 1.202(d) (February
12, 2019).19
The plain language of MCL 168.846, and the caselaw interpreting that language
from our earlier constitutions, would appear to apply to contested presidential elections.
And, since it is arguable whether quo warranto applies before a defendant assumes office,
MCL 168.846 may offer the only route for contesting a presidential election before it
becomes final.20 But the statute does not provide for any definite or detailed procedures
to determine election contests, as the Electoral Count Act appears to contemplate. 3 USC
5. Compare, e.g., Cal Election Code 16400 and 16401 (providing for contests of “any
18
See Vance v St Clair Co Bd of Canvassers, 95 Mich 462, 466 (1893) (“Contests
respecting the title to that office [i.e., the circuit judgeship] must be made before the
Legislature. That body finally determines the very matters which the board of canvassers
in the present case propose to pass upon.”); Dingeman, 198 Mich at 136, 139 (“It is, and
must be, conceded that the Constitution has vested in the legislature sitting in joint
convention the power of finally determining the question who was elected to the office of
circuit judge. . . . Running through all these cases is the rule, to my mind clear and
distinct, that wherever by the organic law, whether Federal, State, or municipal, a tribunal
is created to finally determine the right to an office, that tribunal is exclusive, and there,
and there only, may the right to the office be tested. By the organic law of this State the
legislature, sitting in joint convention, is made such tribunal as to the office here
involved.”); see also McLeod v Kelly, 304 Mich 120, 126-127 (1942) (applying
Dingeman); Behrendt v Bd of State Canvassers, 269 Mich 247, 248 (1934) (same);
Wilson v Atwood, 270 Mich 317 (1935) (rejecting petition for leave to file quo warranto
action regarding the office of Secretary of State when, under the constitutional provision
in effect at the time, the Legislature did not properly meet in joint convention to hear the
election contest).
19
Although I did not locate any reference to this procedure in the Standing Rules of the
House of Representatives or the Joint Rules of the House and Senate.
20
The petitioners here have, in fact, recently filed a petition with the Legislature to obtain
an election audit and other relief. See Feather, CW7 News, Voters Petition Michigan
Legislature to Audit Election Results, Call SOS Under Oath,
(accessed December 7, 2020)
[https://perma.cc/PL2G-M3RV].
17
election” and requiring it to be brought within 10 days “[i]n cases involving presidential
electors”); Del Code Ann, tit 15, § 5921 (requiring “[a]ny person intending to contest the
election of any one declared by the Governor to have been chosen an elector of President
and Vice President” to file a declaration within 10 days of the Governor’s proclamation).
And it is discretionary with the Legislature—they can take up the matter or not.
Dingeman, 198 Mich at 137; compare Ark Code Ann 7-5-806(c) (requiring the
Legislature to vote on whether “the prayers shall be granted” in various contested
elections concerning executive offices). 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.
This backdrop makes the current case all the more important, as it involves a new
tool for detecting fraud in elections. The voters in 2018 enacted sweeping changes to our
election system. One of the new concepts introduced was an election audit. Article 2,
§ 4(1)(h) provides to “[e]very citizen of the United States who is an elector qualified to
vote in Michigan . . . [t]he right to have the results of statewide elections audited, in such
a manner as prescribed by law, to ensure the accuracy and integrity of elections.” Id.
“The provision is self-executing, meaning that the people can enforce this right even
without legislation enabling them to do so . . . .” Costantino, ___ Mich at ___; slip order
at 4 (VIVIANO, J., dissenting), citing Wolverine Golf Club v Secretary of State, 384 Mich
461, 466 (1971). The Legislature has provided for these audits in MCL 168.31a, “which
prescribes the minimum requirements for statewide audits and requires the Secretary of
State to issue procedures for election audits under Article 2, § 4.” Costantino, ___ Mich
at ___; slip order at 4 (VIVIANO, J., dissenting).
Petitioners here, like the plaintiffs in Costantino, seek to use this new right to
obtain an audit of the election results.21 With that audit in hand, they apparently hope to
21
Justice CLEMENT is mistaken in suggesting that petitioners here have not asked for an
audit under Const 1963, art 2, § 4. In each of their claims for relief, petitioners state that
“Respondents owe citizens an audit of election results that is meaningful and fair and to
safeguard against election abuses.” They claim to be aggrieved because the Board of
State Canvassers certified the election “without conducting an audit . . . .” Their prayer
for relief asks us to collect the ballots and election materials so that “the Michigan
Legislature and this Court [will] have a chance to perform a constitutionally sound audit
of lawful votes[.]” If there was any lingering doubt, the petitioners’ brief here makes it
clear, presenting as a numbered issue of “whether the nature and scope of article 2, § 4
requires a meaningful audit before Michigan’s electors may be seated.” For good
measure, the brief asks the Court to “enter an order requiring that the Michigan
Legislature convene a joint convention to analyze and audit the election returns . . . .”
See also id. (“This Court should oversee an independent audit—or require the Michigan
18
find further support for their challenge to the election. As my dissent in Costantino
explained, the nature of the right granted in Article 4, § 4(1)(h) is an important issue this
Court should resolve. A full resolution involves answering many questions, such as
whether MCL 168.31a “accommodates the full sweep of the Article 2, § 4 right to an
audit or whether it imposes improper limitations on that right” and whether the party
seeking an audit must make some showing of entitlement, such as by presenting evidence
of fraud. Costantino, ___ Mich at ___; slip order at 4-5.
But the core question this case and Costantino have presented is whether the
petitioners are entitled to an audit in time for it to make any difference in their election
challenges. In other words, is this right a means “to facilitate challenges to election
results, or does it simply allow for a postmortem perspective on how the election was
handled?” Id. at ___; slip order at 5. This gets to the heart of the struggle with these
election disputes. The path for citizens of our state to raise serious claims of election
wrongdoing, implicating the heart of our democratic institutions, is unclear and
underdeveloped. This void in our law might suggest that the audit right in Article 2, § 4
was not intended to support election challenges. On the other hand, the very fact that the
mechanisms for election challenges are so opaque might be a reason why the right to an
audit is so critical. Moreover, to the extent the current system puts decisions in the hands
of the Legislature, MCL 168.846, a timely audit might be essential for parties to convince
the Legislature to entertain an election contest. 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. This uncertainty—particularly the lack of any laws
that clearly govern the determination of presidential-election contests, although MCL
168.846 arguably applies—jeopardizes our ability to take advantage of the safe harbor in
3 USC 5, i.e., Congress’s guarantee to respect the state’s determination of election
disputes over electors. For this reason, and perhaps even more importantly to provide our
citizens with a coherent, fair, and efficient mechanism for adjudicating claims of fraud in
the election of presidential electors, I respectfully urge the Legislature to consider
enacting legislation creating such a mechanism.
Legislature to take back this constitutional function . . . .”). Short of a magical
incantation, it seems to me that petitioners have done all they can to put the issue directly
before the Court.
19
By closing the courthouse door on these petitioners, the Court today denies them
any ability to have their claims fully considered by the judiciary.22 That is because
petitioners, rightly thinking that time is short, have filed this case as an original action in
this Court. As a result, they have received no decision below and now will go without
any answer. I believe it is incumbent upon the Court, in these circumstances, to provide
22
Justice CLEMENT declares it “irresponsible” for us even to consider the issues
presented by this case. Ante at 1, 9. I would beg to differ. 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. Justice CLEMENT appears to agree that the law is
unsettled: her concurrence repeatedly hedges on every significant question in the case,
and she ultimately concludes that she has “no absolutely definitive answers for” them.
Ante at 8. So we have real work to do in this case to clarify the law in this area—work
that only this Court can do.
In addition, despite claiming she has not reached any “definitive answers,” Justice
CLEMENT’s reasons for voting to deny are premised on certain conclusions regarding the
nature of the right to an audit and other issues in the case. For example, she says “there is
no apparent purpose to which the audit sought by the petitioners can be put in light of the
above-mentioned jurisdictional limits on the judiciary’s ability to revisit the outcome of
this election.” Ante at 6. This suggests that the audit right has no role to play in election
contests because such contests cannot come before the courts. And because she believes
the matter is for the Legislature, she sees no need to resolve the “tension” she perceives
in the text of Article 2, § 4. Ante at 7. Of course, this conclusion overlooks the
possibility that the results of an audit could be used by petitioners to convince the
Legislature to take up the matter and to prevail in that venue. Baked into the
concurrence’s rationales, then, are determinations about the scope and nature of the audit
right, this Court’s jurisdiction, and the respective roles of the courts and Legislature—all
of which are questions at the heart of the case and any of which is significant enough, in
my opinion, to merit a full opinion from this Court. Thus, in professing not to answer
any question in this case, Justice CLEMENT assumes the answer to a number of them. I
would instead take direct aim at resolving these issues, but only after hearing the case.
20
guidance so that, no matter the outcome, the people are able to understand and exercise
their constitutional rights in an effective and meaningful manner.23 Accordingly, I
dissent.
MARKMAN, J., joins the statement of VIVIANO, J.
23
In hearing the case, I would consider all matters necessary to reach a resolution,
including whether this Court has jurisdiction to hear this original action or provide any or
all of the relief requested. Because the Court has declined to hear this case, I, of course,
reach no final conclusions on any of the issues addressed above.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 9, 2020
t1209
Clerk