STATE OF MICHIGAN IN THE COURT OF APPEALS ATTORNEY … · consideration of the objections. (See Ex....
Transcript of STATE OF MICHIGAN IN THE COURT OF APPEALS ATTORNEY … · consideration of the objections. (See Ex....
STATE OF MICHIGAN IN THE COURT OF APPEALS
ATTORNEY GENERAL BILL SCHUETTE ON BEHALF OF THE PEOPLE OF THE STATE OF MICHIGAN, Plaintiff, v BOARD OF STATE CANVASSERS; CHRIS THOMAS, DIRECTOR OF ELECTIONS, Defendants. /
Court of Appeals No. 335947
DEFENDANT BOARD OF STATE CANVASSERS’ BRIEF IN RESPONSE TO COMPLAINT FOR MANDAMUS
Aaron D. Lindstrom (P72916) Solicitor General Counsel of Record Denise C. Barton (P41535) Heather S. Meingast (P55439) Erik A. Grill (P64713) Adam Fracassi (P79546) Assistant Attorneys General Attorneys for Defendants Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, Michigan 48909 517.373.6434
Dated: December 5, 2016
The appeal involves a ruling that a provision of the Constitution, a statute, rule or regulation, or other State governmental action is invalid.
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TABLE OF CONTENTS
Page Index of Authorities ....................................................................................................... ii
Statement of Jurisdiction ............................................................................................. iv
Counter-Statement of Question Presented ................................................................... v
Introduction ................................................................................................................... 1
Counter-Statement of Facts and Proceedings .............................................................. 2
Argument ....................................................................................................................... 6
I. Mandamus relief is not clearly warranted under the circumstances of this case. .............................................................................................................. 6
A. Standards for granting mandamus relief. ............................................... 6
B. Analysis .................................................................................................... 7
1. Overview of the Board of State Canvassers’ duties. .................... 7
2. Count I – Mandamus Prohibiting Recount ................................. 10
3. Count II – Mandamus Ordering Compliance with MCL 168.882(3) ..................................................................................... 13
4. Count III – Mandamus Requiring the Board to complete any Recount and Certify Electors by December 13, 2016 .......... 14
5. Count IV – Mandamus Ordering any Recount to Proceed Electronically ............................................................................... 16
Conclusion and Relief Requested ................................................................................ 17
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INDEX OF AUTHORITIES
Page
Cases
Automobile Club of Mich Committee for Lower Rates Now v Secretary of State (On Remand), 195 Mich App 613 (1992) ................................................................... 6
Bormuth v Johnson, et al., United States District Court for the Eastern District No. 16-13166 ............................................................................................... 13
Bush v Palm Beach Co Canvassing Bd, 531 US 70 (2000) ........................................ 15
Citizens Protecting Michigan's Constitution v Sec'y of State, 280 Mich App 273 (2008) ................................................................................................................... 6
Delly v Bureau of State Lottery, 183 Mich App 258 (1990) ........................................ 16
Kennedy v Board of State Canvassers, 127 Mich App 493 (1983) .............................. 11
People v Carines, 460 Mich 750 (1999) ....................................................................... 12
Strickland v Washington, 466 US 668 (1984) ............................................................. 12
Teasel v Dep’t of Mental Health, 419 Mich 390 (1984) .............................................. 16
Trump v Michigan Board of State Canvassers, et al., Michigan Court of Appeals No. 335958, and Michigan Supreme Court No. 154868 ............................. 5
Tuggle v Dep't of State Police, 269 Mich App 657 (2005) ............................................. 6
White-Bey v Dept of Corrections, 239 Mich App 221 (1999) ........................................................................................... 7
White-Bey v Dept of Corrections, 239 Mich App 221 (1999) ......................................... 7
Wolverine Golf Club v Secretary of State, 24 Mich App 711 (1970) ............................. 6
Statutes
MCL 168.1 ...................................................................................................................... 2
MCL 168.22(2) ............................................................................................................... 7
MCL 168.22d .................................................................................................................. 7
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MCL 168.46 .................................................................................................................. 14
MCL 168.841 ............................................................................................................ 7, 14
MCL 168.868(3) ............................................................................................................. 8
MCL 168.871(4) ....................................................................................................... 9, 16
MCL 168.875 ................................................................................................................ 10
MCL 168.879(1) ....................................................................................................... 4, 11
MCL 168.882 ........................................................................................................ passim
MCL 168.889 .................................................................................................................. 8
MCL 168.890 .................................................................................................................. 9
MCL 168.891 .................................................................................................................. 9
MCL 168.892 .................................................................................................................. 9
Constitutional Provisions
Const 1963, art 2, § 7 ..................................................................................................... 7
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STATEMENT OF JURISDICTION
This Court has original jurisdiction to entertain an action for “mandamus
against a state officer.” MCL 600.4401; MCR 3.305(A)(1); MCR 7.203(C)(2). The
members of the Board of State Canvassers are state officers. Jurisdiction is proper
in the Court of Appeals.
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COUNTER-STATEMENT OF QUESTION PRESENTED
1. A writ of mandamus may only issue when the requesting party demonstrates that it has a clear legal right to performance of the specific duty sought, and where the defendant has the clear legal duty to perform the act requested. Is mandamus relief warranted under the circumstances of this case?
Plaintiff’s answer: Yes.
Defendant’s answer: No.
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INTRODUCTION
Plaintiff Attorney General Bill Schuette filed the instant complaint
requesting issuance of mandamus relief against Defendant State Board of
Canvassers.1 For the reasons set forth below, mandamus relief is not clearly
warranted under the circumstances of this case.2
1 Defendant Thomas will be filing a separate response in opposition to Plaintiff’s complaint. 2 Defendant State Board of Canvassers does not object to the motion for immediate consideration filed by Plaintiff.
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COUNTER-STATEMENT OF FACTS AND PROCEEDINGS
On November 28, 2016, the Board of State Canvassers (Board) certified the
November 8, 2016 general election results, which included the results for the
presidential race.3 Republican candidate Donald Trump received the highest
number of votes (2,279,543), and Democrat candidate Hillary Clinton received the
second-highest (2,268,839). Green Party candidate Jill Stein came in fourth place,
receiving 51,463 votes out of almost 4.8 million votes cast. Because certification of
the election results starts the clock ticking for the filing of any request to recount a
race, the Board also moved to “authorize the staff of the Bureau of Elections to
represent the Board in any recount of votes cast at the November 8, 2016 general
election.” (Ex. 1, 11/28/16, Trans p 40). With respect to recounts, Defendant
Director of Elections Christopher Thomas stated that the longstanding policy of the
Board was to conduct recounts by a hand count, but that the Board could revisit
that issue. (Id., pp 39-40).
Two days later, on November 30, 2016, Dr. Stein filed a petition for recount
with the Board, requesting a statewide recount and further asking that any recount
be done by hand. The filing to the recount petition triggers certain requirements
under Michigan Election Law, MCL 168.1 et seq. Notice of the recount had to be
given to the other presidential candidates within 48 hours of the filing, MCL
168.882(1), and those candidates had 7 days within which to file a counter petition
or objections to the recount petition, MCL 168.882(2)-(3). Also, Defendant Director
3 The results are available on the Department of State’s website at http://miboecfr.nictusa.com/election/results/2016GEN_CENR.html.
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of Elections Christopher Thomas and the Bureau of Elections began preparing for
the conducting of the recount.
On December 1, 2016, an objection to Dr. Stein’s recount petition was timely
filed on behalf of Mr. Donald Trump. (Ex. 2, Objections). The objections raised
three arguments in opposition to the petition: (1) that Dr. Stein was not an
aggrieved candidate for purposes of filing the petition, (2) that a recount could not
be completed before the requirements of federal law regarding the counting of the
electoral votes became operative, and (3) that Dr. Stein’s petition was not properly
sworn under Massachusetts law. (Id.) The filing of the objections halted the
recount process until the objections were ruled on by the Board. MCL 168.882.
Late the same day, Dr. Stein filed a response to Mr. Trump’s objections. (Ex.
3, Response). She asserted that she was an “aggrieved” candidate as that law has
been interpreted in Michigan; that the argument the recount could not be timely
completed was speculative and not a proper objection to the form of the petition;
and that her petition was properly sworn. (Id.)
On December 2, 2016, at 9:30 a.m., the Board met to rule on the objections as
required by law. But before the Board convened, the Board and Director Thomas
were served with the instant complaint for mandamus and with a bypass
application to the Michigan Supreme Court.4 The Board recessed for a brief time to
review the lawsuits, reconvened, and then moved to go into closed session to discuss
4 The Board and Director Thomas were also served with another complaint for mandamus filed in the Ingham Circuit Court by a political action committee. See Ziegler v Board of State Canvassers, et al., Circuit Court No. 16-901-CZ (Jamo, J.).
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the litigation with their undersigned counsel. The Board reconvened and turned to
consideration of the objections. (See Ex. 6, 12/02/2016 Transcript).
Attorneys for Mr. Trump argued their objections to the Board, and the
attorney for Dr. Stein argued in opposition to the objections. At the conclusion of
the attorneys’ arguments, Board Member Shinkle moved that the Board approve
the objection to the petition that it did not comply with the law because Dr. Stein
did not sufficiently allege or identify how she was aggrieved by the results of the
election. Board Member Pero added she considered the petition deficient in that it
did not allege the nature of the fraud or mistake believed to have occurred in
canvass as required by MCL 168.879(1)(f).5 Board Member Matuzak expressed her
opinion that the petition’s language complied with the law in that it was not
required to set forth specific allegations of fraud or mistake. The motion failed on a
2-2 vote. The Board thereafter heard testimony from several citizens, including a
clerk who discussed issues relating to the use of hand counts and machine counts
for conducting a recount. Subsequently, Member Shinkle moved that the Board
conduct the recount by a machine count instead of a hand count. The motion failed
on a 2-2 vote. After additional comments from Mr. Trump’s and Dr. Stein’s
attorneys, Member Shinkle moved that the Board stop the recount process when it
becomes evident that it is mathematically impossible for Dr. Stein to prevail. That
5 This section provides that the petition must “set[ ] forth as nearly as possible the nature and character of the fraud or mistakes alleged and the counties, cities, or townships and the precincts in which the exist.” MCL 168.879(1)(f).
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motion failed as well on a 2-2 vote. Shortly thereafter, the Board recessed the
meeting.
Because no objection to Dr. Stein’s petition was sustained, the recount may
proceed. But the law provides that the recount may not begin until two business
days have elapsed since the Board’s determination of the objections. MCL
168.882(3). Absent judicial intervention, the recount will begin Wednesday,
December 7, 2016.
After the meeting, Defendants were served with another complaint for
mandamus in the Michigan Court of Appeals and with a bypass application in the
Michigan Supreme Court on behalf of Mr. Trump, which lawsuit raises arguments
similar to the objections filed with Board of State Canvassers. See Trump v
Michigan Board of State Canvassers, et al., Michigan Court of Appeals No. 335958,
and Michigan Supreme Court No. 154868. As in this case, the Defendants have
been ordered to respond to that complaint by noon on Monday, December 5, 2016.
After the close of business on Friday, December 2, Dr. Stein filed a complaint
in the United States District for the Eastern District of Michigan, Stein, et al. v
Thomas, et al., 16-cv-14233 (Goldsmith, J.). That lawsuit asks the federal court to
declare that portion of MCL 168.882(3) imposing a two-business-day waiting period
for the commencement of the recount process unconstitutional as applied to Dr.
Stein’s recount. Dr. Stein later filed an ex parte motion for temporary restraining
order requesting that the federal court order the immediate commencement of the
recount process. An all-day hearing was held Sunday, December 4, 2016, at the
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close of which the court took the matter under advisement and after midnight
entered a temporary restraining order requiring the recount to commence by noon
on December 5 until further order. (Ex. 4, Order).
ARGUMENT
I. Mandamus relief is not clearly warranted under the circumstances of this case.
A. Standards for granting mandamus relief.
Although courts have held that mandamus is the appropriate remedy for a
party seeking to compel action by election officials, see, e.g., Wolverine Golf Club v
Secretary of State, 24 Mich App 711 (1970), aff’d 384 Mich 461 (1971); Automobile
Club of Mich Committee for Lower Rates Now v Secretary of State (On Remand), 195
Mich App 613 (1992), including proceedings6 under the recount chapter of
Michigan’s Election Laws, a writ of mandamus remains an extraordinary remedy
and will only be issued where: “(1) the party seeking the writ has a clear legal right
to performance of the specific duty sought, (2) the defendant has the clear legal duty
to perform the act requested, (3) the act is ministerial, and (4) no other remedy
exists that might achieve the same result.” Citizens Protecting Michigan’s
Constitution v Sec’y of State, 280 Mich App 273, 284 (2008), citing Tuggle v Dep’t of
State Police, 269 Mich App 657, 668 (2005).
The specific act sought to be compelled must be of a ministerial nature, which
is prescribed and defined by law with such precision and certainty as to leave
6 MCL 168.878.
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nothing to the exercise of discretion or judgment. Citizens Protecting Michigan’s
Constitution, 280 Mich App at 286. “The burden of showing entitlement to the
extraordinary remedy of a writ of mandamus is on the plaintiff.” White-Bey v Dept
of Corrections, 239 Mich App 221, 223 (1999).
B. Analysis
The Board had a legal duty to rule on the objections submitted by Mr. Trump
to Dr. Stein’s recount petition. The Board did so. As a result, mandamus relief is
not clearly warranted here.
1. Overview of the Board of State Canvassers’ duties.
The Board is a constitutional board created by article 2, § 7, of Michigan’s
1963 Constitution, and its duties and responsibilities are established by law. See
MCL 168.22(2). It is composed of four members – 2 Republicans and 2 Democrats –
appointed by the Governor with the advice and consent of the Senate. MCL
168.22(3). The Director of Elections serves “as a nonmember secretary” of the
Board. MCL 168.32. “Three members of the board of state canvassers constitute a
quorum of the board. However, an action of the board of state canvassers shall only
be effective upon concurrence of at least 1 member of each major political party
appointed to the board.” MCL 168.22d.
Relevant here, the Board has the following duties with respect to recounts.
Under MCL 168.882(3) the Board must receive and address any objections
submitted with respect to a recount petition:
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On or before 4 p.m. of the seventh day after a recount petition has been filed . . . an opposing candidate may file objections to the recount petition with the board of state canvassers. The opposing candidate shall set forth his or her objections to the recount petition in writing. Upon receipt of an objection under this subsection, the board of state canvassers shall notify the petitioner and the objecting candidate of the date of the hearing of the board of state canvassers to consider the objections. The board of state canvassers shall allow the recount petitioner and the objecting candidate to present oral or written, or both, arguments on the objections raised to the recount petition at the hearing. Not later than 5 business days following the hearing, the board of state canvassers shall rule on the objections raised to the recount petition. The board of state canvassers shall not begin a recount unless 2 or more business days have elapsed since the board ruled on the objections under this subsection, if applicable.7
The Board also must investigate the facts alleged in a recount petition and
cause the recount to occur:
The board of state canvassers, at as early a date as possible after the receipt of such petition and the deposit required, shall investigate the facts set forth in said petition and cause a recount of the votes cast in the several precincts included in the petition. [MCL 168.883.]8
Under MCL 168.889, the Board directs, supervises, and controls the recount:
All recounts provided for in sections 878 et seq. of this act shall be conducted in the several counties wherein the votes to be counted were cast by the respective boards of county canvassers in each of the several counties, subject to the direction, supervision and control of the said board of state canvassers. The said board of state canvassers shall prescribe the time and the place in each county where the recount of any votes shall be conducted, which recount shall be in public. Said board shall provide each board of county canvassers with such rules and regulations as in the opinion of the said board of state canvassers shall be necessary to conduct such recount in a fair, impartial and uniform manner in the said several counties. . . . [Emphasis added.]
7 Subsection 882(3) was added by 1995 PA 261. A similar section was added to the provision regarding county boards of canvassers. See MCL 168.868(3). 8 County boards of canvassers have similar duties to investigate recount petitions. See MCL 168.869 and 168.870.
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Board members need not be present at a recount; the Board may designate
other state officers and individuals to direct, supervise, and control the recount, and
those individuals have the same authority as the Board to enforce and carry out the
Board’s rules and regulations. MCL 168.890.
Generally, the manner of a recount conducted by the Board must be in the
same manner as that provided for with respect to recounts conducted by county
boards of canvassers. MCL 168.891. Relevant here, MCL 168.871 gives discretion
to the Board to determine the method of recounting:
(4) A board of canvassers conducting a recount pursuant to this chapter may conduct a recount by the following means:
(a) A manual tally of the ballots.
(b) A tabulation of the ballots on a computer using a software application designed to specifically count only the office or ballot question subject to the recount.
(c) A tabulation of the ballots on a computer using the same software application used in the precinct on election day.
(d) Any combination of methods in subdivision (a), (b), or (c), as determined appropriate by the board of canvassers. [MCL 168.871(4).]
Finally, when the recount is complete, the Board must compile and certify the
result:
Whenever a recount in any county shall be completed, it shall be the duty of the county boards of canvassers to return forthwith the results of such recount to the board of state canvassers, which board shall compile said returns and certify the result. The returns made by the said boards of county canvassers of any recount shall be deemed to be correct, anything in the previous return of any board of election inspectors or any county canvassing board to the contrary notwithstanding. . . . [MCL 168.892.]
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Here, the recount regarding Dr. Stein’s petition must be completed by “not
later than the thirtieth day immediately following the last day for filing counter
petitions or the first day that recounts may lawfully begin.” MCL 168.875. The last
day for filing a counter petition is December 7, 2016, see MCL 168.882(2), which at
this time is also the day the recount may begin barring any delay, see MCL
168.882(3). Thirty days from December 7, 2016, is January 6, 2017.9
2. Count I – Mandamus Prohibiting Recount
In Count I of his complaint, Plaintiff asserts that the Board had “a clear legal
duty to deny Stein’s request for a recount because she is not an ‘aggrieved’ party as
a matter of law and she fails to satisfy the statutory prerequisite for a recount.”
(Complaint, ¶ 14). Plaintiffs asks this Court to “order the [Board] to deny Stein’s
recount. . . .” (Id., ¶ 17). But the only clear affirmative legal duties the Board
appears to have with respect to the petition itself is to rule on “objections” made to
the “recount petition,” MCL 168.882(3), and to “investigate the facts set forth in said
petition,” MCL 168.883. Here, the Board met and considered the objections to the
recount petition, and none were sustained since the Board did not approve any
objection by an effective vote.
Plaintiff really argues that the Board should have ruled in a particular way –
finding that Dr. Stein was not an “aggrieved” candidate for purposes of MCL
9 Coincidentally, January 6, 2017, is the day that Congress must convene to count the electoral votes of all the States for president. See 3 USC § 15.
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168.879(1)(b) because there is no possibility that a recount will change the results of
the election in Dr. Stein’s favor. Subsection 879(1)(b) provides that:
(1) A candidate voted for at a primary or election for an office may petition for a recount of the votes if all of the following requirements are met:
* * * (b) The petition alleges that the candidate is aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by the inspectors, or by a board of county canvassers or the board of state canvassers. . . . [MCL 168.879(1)(b) (emphasis added).]
Dr. Stein’s petition alleges that she is aggrieved:
I and the undersigned members of my slate of electors, individually and collectively, are aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election, and/or the returns made by the inspectors, and/or by the Board of County Canvassers, and/or by the Board of State Canvassers.
Michigan’s election law does not define the term “aggrieved” for purposes of
subsection 879(1)(b). This section was liberally interpreted by this Court in
Kennedy v Board of State Canvassers, 127 Mich App 493 (1983), which decision was
provided to the Board for review.
While individual members of the board had differing views on what the term
“aggrieved” means (much like dissenting members of a court might have different
views), the board as an entity concluded that Ms. Stein is an aggrieved individual
for purposes of the recount statute. This is consistent with the plain meaning of the
word “aggrieved” as one who is “suffering from an infringement or denial of legal
rights.” Merriam-Webster.com. This definition is not expressly limited, as Plaintiff
asserts, to the denial of legal rights that affect the outcome of a proceeding; its plain
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meaning could be read to cover any denial of a right, without regard to whether it is
outcome determinative or not. Indeed, many areas of the law recognize that there
is a distinction between whether one has been aggrieved (i.e., has suffered a denial
of a legal right) and whether that denial was outcome determinative. For one
example, criminal defendants have a right to counsel, and the familiar Sixth
Amendment test of Strickland v Washington, 466 US 668 (1984), examines (1)
whether the right to competent representation has been denied (the “deficient
performance” prong) and (2) whether that denial of the right would be likely to
change the outcome of the proceedings (the “prejudice” prong). Id. at 687; see also
id. at 694 (explaining that prejudice requires showing “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different”). Strickland thus analyzes separately (1) whether one has been
aggrieved and (2) whether that injury will change the outcome of the proceedings.
This example shows that one can be aggrieved in a way that does not change the
outcome; one can satisfy Strickland’s first prong, but fail the second. As another
example, plain-error analysis also recognizes that a party might be aggrieved in a
way that does not change the outcome of the proceedings. E.g., People v Carines,
460 Mich 750, 763 (1999) (recognizing that a party might have suffered from a legal
error by the court, but also requiring “that the error affected the outcome of the
lower court proceedings” to warrant relief under the plain-error standard). In short,
it is not sufficiently clear under Michigan law which of these two possible meanings
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of “aggrieved” is correct—i.e., any denial of a right or only an outcome-determinative
denial of a right—to satisfy the standard of mandamus relief.
Also, the Board was apprised that in the past recount petitions have been
rejected where a candidate did not seek to recount enough precincts to actually
affect the outcome of the election. (Ex. 2, Objections, p 5).10 Here, Dr. Stein has
sought a statewide recount. In the absence of additional statutory guidance and on-
point precedent from our courts, it is unclear what duty the Board had to look
behind Dr. Stein’s allegation that she was “aggrieved” and to further interpret the
meaning of that word as proposed by Plaintiff. Under these circumstances,
mandamus relief generally will not lie.
3. Count II – Mandamus Ordering Compliance with MCL 168.882(3)
In Count II of his complaint, Plaintiff requests that this Court order the
Board to comply with MCL 168.882(3), which requires a delay of two business days
before starting any recount after objections have been ruled upon by the Board.
(Complaint, ¶¶ 18-21). This request for relief is moot for two reasons. First, the
Board was complying with this requirement and barring any judicial intervention
by the federal court, the recount would have commenced on December 7, 2016,
which is two business days after the December 2, 2016 meeting at which the Board
10 This reasoning was recently rejected by a federal district court magistrate judge in a non-final report and recommendation in the case of Bormuth v Johnson, et al., United States District Court for the Eastern District No. 16-13166 (Edmunds, Nancy G.).
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heard the objections. And second, as of 12:03 a.m. today, the Board has been
enjoined to commence the recount proceedings by noon today.
4. Count III – Mandamus Requiring the Board to complete any Recount and Certify Electors by December 13, 2016
In Count III of his complaint, Plaintiff requests that this Court order the
Board to complete any recount and certify electors by December 13, 2016.
(Complaint, ¶¶ 22-26). Plaintiff further requests that this Court “order that if, at
any point in the recount process, the number of votes that Stein requires to win
Michigan’s electoral votes exceeds the number of ballots left to be counted, the
recount must end immediately.” Id., ¶ 27.
As noted above, on November 28, 2016, the Board fulfilled its duty of
canvassing and certifying the results of the November 8, 2016 general election
under MCL 168.841 and 168.842. Under MCL 168.46, “[a]s soon as practicable”
after the Board’s certification, the Governor must certify to the United States
Secretary of State the names and addresses of the electors of the State chosen as
electors for president and vice president. MCL 168.46. This process has been
completed. Michigan’s certified slate of electors was transmitted to the appropriate
official in Washington, D.C. on December 2, 2016. (Ex. 5, cover letter & certificate).
These electors will meet on December 19, 2016, to cast their electoral votes for their
candidates. See MCL 168.47 & 3 USC 7 (“[E]lectors of President and Vice President
of each State shall meet and give their votes on the first Monday after the second
Wednesday in December next following their appointment at such place in each
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State as the legislature of such State shall direct.”). The official votes of Michigan’s
electors will then be sent to Congress for counting along with the electoral votes of
the other States, and an official declaration of the winner of president and vice
president. 3 USC 15.
Accordingly, Michigan is in no danger of not having its electoral votes
counted by Congress on January 6, 2016. The December 13, 2016 date noted by
Plaintiff is a deadline created by federal law under 3 USC 5 for the determination of
any challenge to the appointment of a state’s electors. The section creates a “safe
harbor” for a state’s resolution of a challenge to its electors if the final
determination is “made at least six days prior to said time of meeting of the
electors,” which is December 19, 2016, as noted above. Id. See also Bush v Palm
Beach Co Canvassing Bd, 531 US 70, 77 (2000). If the six-day conditional deadline
is not met, Congress does not have to accept the state’s determination as
“conclusive” when it meets to count the electoral votes on January 6. Id. at 77-78.
Thus, Michigan is not, by law, required to finish any recount by December 13, 2016,
but if it does not do so by the 13th, and the results of the election somehow change,
which is unlikely by all reports, Congress is not statutorily required to accept this
determination and any revised slate of electors as “conclusive” when it convenes on
January 6.
However, in the temporary restraining order issued by the federal court early
today, it enjoined the Board to act to “ensure” that the recount be completed by
December 13, 2016. (See Ex. 4, TRO, p. 8).
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5. Count IV – Mandamus Ordering any Recount to Proceed Electronically
In Count IV of his complaint, Plaintiff requests that this Court order the
Board to conduct the recount electronically, rather than by a hand count.
(Complaint, ¶ 29). Plaintiff recognizes that the Board has discretion to choose
which method to use to conduct the recount under MCL 168.871(4), but asserts that
this “discretion is cabined by the Legislature’s mandate that Michigan’s electors
participate fully in the federal electoral process. The Board has no discretion to
jeopardize Michigan’s votes in the Electoral College.” Id.
When the recount commences next week it is currently set to be conducted by
a hand count. As discussed at the December 2, 2016 meeting, this is the traditional
practice of the Board. Two members of the Board did move to change the method to
a machine or electronic count, but that motion did not prevail, and MCL 168.871(4)
authorizes the board to choose, in its discretion, among four different recount
options. Where an action is discretionary, mandamus generally will not lie. See
e.g., Teasel v Dep’t of Mental Health, 419 Mich 390, 409-410 (1984); Delly v Bureau
of State Lottery, 183 Mich App 258 (1990). Moreover, as explained above, the Board
has fulfilled its duties and presently there is no threat to the electoral process.
Because the Board has discretion to determine which method to use, and it
exercised that discretion, mandamus relief is not appropriate.
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17
CONCLUSION AND RELIEF REQUESTED
For the reasons set forth above, Defendant Board of State Canvassers
requests that this Court deny Plaintiff’’ complaint for mandamus relief.
Respectfully submitted, Aaron D. Lindstrom (P72916) Solicitor General Counsel of Record s/Denise C. Barton Denise C. Barton (P41535) Heather S. Meingast (P55439) Erik A. Grill (P64713) Adam Fracassi (P79546) Assistant Attorneys General Attorneys for Defendants Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, Michigan 48909 517.373.6434
Dated: December 5, 2016
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