League of Women Voters of Mich. v. Sec'y of State

• Decision Date: 14 July 2020
• Docket Number: No. 353654,353654
• Citation: 959 N.W.2d 1,333 Mich.App. 1
• Parties: LEAGUE OF WOMEN VOTERS OF MICHIGAN, Deborah Bunkley, Elizabeth Cushman, and Susan Smith, Plaintiffs, v. SECRETARY OF STATE, Defendant.
• Court: Court of Appeal of Michigan — District of US

333 Mich.App. 1

959 N.W.2d 1

LEAGUE OF WOMEN VOTERS OF MICHIGAN, Deborah Bunkley, Elizabeth Cushman, and Susan Smith, Plaintiffs,

v.SECRETARY OF STATE, Defendant.

No. 353654

Court of Appeals of Michigan.

Submitted June 18, 2020, at Lansing.

Decided July 14, 2020, 9:00 a.m.

Arnold & Porter Kaye Scholer LLP (by R. Stanton Jones, Elisabeth S. Theodore, Daniel F. Jacobson, Kolya D. Glick, and Samuel F. Callahan ), the American Civil Liberties Union (by Theresa J. Lee and Dale E. Ho), Goodman Acker, PC, Southfield (by Mark Brewer ), and the American Civil Liberties Union Fund of Michigan (by Daniel S. Korobkin and Sharon Dolente, Bloomfield Hills) for the League of Women Voters of Michigan.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Secretary of State.

Before: Sawyer, P.J., and Gleicher and Riordan, JJ.

Sawyer, P.J. Plaintiffs filed this complaint for mandamus seeking an order of this Court directing defendant to implement certain procedures regarding the processing of absent-voter ballots. After reviewing the parties’ briefs and hearing oral argument, we are not persuaded that plaintiffs are entitled to relief, and we deny the writ for mandamus.

Plaintiff League of Women Voters of Michigan is a statewide organization with an interest in voting rights. The individual plaintiffs¹ are League members and registered voters residing in Michigan. Defendant, the Secretary of State, is "the chief election officer of the state" with "supervisory control over local election officials in the performance of their duties under the provisions of" the Michigan Election Law, MCL 168.1 et seq. MCL 168.21. Defendant must "[a]dvise and direct local election officials as to the proper methods of conducting elections." MCL 168.31(1)(b).

In November 2018, Michigan voters approved Proposal 3, which granted all Michigan voters the constitutional right to vote by absent-voter ballot without stating a reason.² That right was incorporated into Const. 1963, art. 2, § 4, which addresses the place and manner of elections. Const. 1963, art. 2, § 4, as amended, states, in relevant part, as follows:

(1) Every citizen of the United States who is an elector qualified to vote in Michigan shall have the following rights:

(a) The right, once registered, to vote a secret ballot in all elections.

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(g) The right, once registered, to vote an absent voter ballot without giving a reason, during the forty (40) days before an election, and the right to choose whether the absent voter ballot is applied for, received and submitted in person or by mail. During that time, election officials authorized to issue absent voter ballots shall be available in at least one (1) location to issue and receive absent voter ballots during the election officials’ regularly scheduled business hours and for at least eight (8) hours during the Saturday and/or Sunday immediately prior to the election. Those election officials shall have the authority to make absent voter ballots available for voting in person at additional times and places beyond what is required herein.

* * *

All rights set forth in this subsection shall be self-executing. This subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes.

Nothing contained in this subsection shall prevent the legislature from expanding voters’ rights beyond what is provided herein. This subsection and any portion hereof shall be severable. If any portion of this subsection is held invalid or unenforceable as to any person or circumstance, that invalidity or unenforceability shall not affect the validity, enforceability, or application of any other portion of this subsection.

(2) Except as otherwise provided in this constitution or in the constitution or laws of the United States the legislature shall enact laws to regulate the time, place and manner of all nominations and elections, to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.

In light of the voters’ approval of Proposal 3 and the amendment of Const. 1963, art. 2, § 4, the Michigan Legislature enacted 2018 PA 603, which amended certain provisions of the Michigan Election Law.³ Plaintiffs, however, contend that some of the Election Law's absent-voter provisions have not been amended to conform with Const. 1963, art. 2, § 4, as amended. Plaintiffs filed a three-count complaint for mandamus, challenging the statutory requirement that absent-voter ballots be received by 8:00 p.m. on election day and the statutory requirement that voters pay the postage to return an absent-voter ballot. Plaintiffs also allege that the received-by deadline violates the Purity of Elections Clause set forth in Const. 1963, art. 2, § 4, the Freedom of Speech and Assembly Clauses set forth in Const. 1963, art. 1, §§ 3 and 5, the Equal Protection Clause set forth in Const. 1963, art. 1, § 2, and the Right to Vote Clause set forth in Const. 1963, art. 2, § 4 (1)(a). Further, plaintiffs allege that some city and township clerks fail to adhere to the requirement set forth in MCL 168.761(1) that the clerk "immediately" upon receipt of an absent-voter application mail an absent-voter ballot to the voter and that they fail to adhere to the requirement set forth in Const. 1963, art. 2, § 4 (1)(g) guaranteeing voters the right to vote by absent-voter ballot in the 40 days before an election.

"[M]andamus is the proper remedy for a party seeking to compel election officials to carry out their duties." Citizens Protecting Michigan's Constitution v. Secretary of State , 324 Mich. App. 561, 583, 922 N.W.2d 404 (2018), aff'd 503 Mich. 42, 921 N.W.2d 247 (2018). "To obtain the extraordinary remedy of a writ of mandamus, the plaintiff must show that (1) the plaintiff has a clear, legal right to performance of the specific duty sought, (2) the defendant has a clear legal duty to perform, (3) the act is ministerial, and (4) no other adequate legal or equitable remedy exists that might achieve the same result." Rental Props. Owners Ass'n of Kent Co. v. Kent Co. Treasurer , 308 Mich. App. 498, 518, 866 N.W.2d 817 (2014). "A clear legal right is a right clearly founded in, or granted by, law; a right which is inferable as a matter of law from uncontroverted facts regardless of the difficulty of the legal question to be decided." Attorney General v. Bd. Of State Canvassers , 318 Mich. App. 242, 249, 896 N.W.2d 485 (2016) (quotation marks and citation omitted). "A ministerial act is one in which the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment." Berry v. Garrett , 316 Mich. App. 37, 42, 890 N.W.2d 882 (2016) (quotation marks and citation omitted). A writ of mandamus is inappropriate if the act sought to be performed involves judgment or the exercise of discretion.

Hanlin v. Saugatuck Twp. , 299 Mich. App. 233, 248, 829 N.W.2d 335 (2013). The plaintiff has the burden of demonstrating entitlement "to the extraordinary remedy of a writ of mandamus." Citizens Protecting Michigan's Constitution , 324 Mich. App. at 584, 922 N.W.2d 404.

The most significant issue presented in this case is Count I of plaintiffs’ complaint: whether the statutory requirement that absent-voter ballots be received by the local election clerk by 8:00 p.m. on election day violates Const. 1963, art. 2, § 4. We conclude that it does not. But before analyzing this question, we must address plaintiffs’ position that defendant has conceded that the "received by" rule is unconstitutional. We read defendant's brief as agreeing with plaintiffs that the received-by-election-day requirement does violate Const. 1963, art. 2, § 4, but with some reservations. After advancing a construction of Proposal 3 that largely agrees with plaintiffs’ position on this point, defendant then states:

The larger issue, and arguably the highest hurdle to this construction of § 4(1)(g), is the absence of language regarding when an [absent-voter] ballot voted by mail by election day must be received by an election official in order to be counted. This silence could be viewed as evidence that the construction advanced above is faulty. The better interpretation, however, is that the drafters left space within the Constitution in which the Legislature can act through supplemental legislation. But the Legislature has not yet done so, and the only recourse at this time is to consult existing statutory provisions for guidance.

Moreover, at oral argument, defendant's attorney certainly seemed to agree with plaintiffs that the received-by-election-day requirement violates the Constitution as amended by Proposal 3. But we do not view the concession by defendant as resolving the issue.

We recognize the ability, indeed the desirability, of parties in a lawsuit to resolve their differences among themselves without the unnecessary intervention of the courts. But it is one thing for parties in a particular action to reach an agreement that only affects those parties in that action. It is yet another thing to allow parties to reach an agreement that would affect the entire state by means of an agreement as to the proper interpretation of a statute or the Constitution that will be applied generally. This, ultimately, is the province of the courts. Indeed, as Chief Justice Marshall wrote long ago in Marbury v. Madison , 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed. 60 (1803), "It is emphatically the province and duty of the judicial department to say what the law is. ... If two laws conflict with each other, the courts must decide on the operation of each."

Chief Justice Marshall expounded on this in further detail:

The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or

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