Johnson v. Sec'y of State

• Court: Michigan Supreme Court
• Citation: Johnson v. Sec'y of State, 951 N.W.2d 310(Mem) (Mich. 2020)
• Decision Date: 09 December 2020
• Docket Number: SC: 162286
• Parties: Angelic JOHNSON and Linda Lee Tarver, Petitioners, v. SECRETARY OF STATE, Chairperson of the Board of State Canvassers, Board of State Canvassers, and Governor, Respondents.

951 N.W.2d 310 (Mem)

Angelic JOHNSON and Linda Lee Tarver, Petitioners,

v.SECRETARY OF STATE, Chairperson of the Board of State Canvassers, Board of State Canvassers, and Governor, Respondents.

SC: 162286

Supreme Court of Michigan.

December 9, 2020

Order

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 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, 51 N.W. 1073 (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 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, 425 N.W.2d 80 (1988). Quo warranto, by contrast, is "the only way to try titles to office finally and conclusively ...." Lindquist v. Lindholm , 258 Mich. 152, 154, 241 N.W. 922 (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.

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, 240 N.W. 41 (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...