STATE OF MICHIGAN IN THE COURT OF APPEALS

DONALD J. TRUMP, Plaintiff, v BOARD OF STATE CANVASSERS, and CHRISTOPHER THOMAS, DIRECTOR OF ELECTIONS, in his official capacity, Defendants. /

Court of Appeals No. 335958

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.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

i

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 ................................................................... 10 

a.  Requirement that candidate be aggrieved. ...................... 10 

b.  The recount petition’s jurat. ............................................. 14 

c.  Electoral College and December 13, 2016 deadline. ........ 15 

d.  Machine count versus hand count. ................................... 17 

3.  Counts II and II for injunctive relief........................................... 18 

Conclusion and Relief Requested ................................................................................ 19 

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

ii

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

Bush v Palm Beach Co Canvassing Bd, 531 US 70 (2000) ........................................ 16

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) ........................................ 17

Kennedy v Board of State Canvassers, 127 Mich App 493 (1983) .............................. 11

People v Carines, 460 Mich 750 (1999) ....................................................................... 13

Stein, et al. v Thomas, et al., 16-cv-14233 (Goldsmith, J.) ........................................... 5

Strickland v Washington, 466 US 668 (1984) ............................................................. 12

Teasel v Dep’t of Mental Health, 419 Mich 390 (1984) ............................................... 17

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

Wolverine Golf Club v Secretary of State, 24 Mich App 711 (1970) ............................. 6

Ziegler v Board of State Canvassers, et al., Circuit Court No. 16-901-CZ (Jamo, J.) .................................................................................................................... 3

Statutes

MCL 168.1 ...................................................................................................................... 2

MCL 168.22d .................................................................................................................. 7

MCL 168.32 .................................................................................................................... 7

MCL 168.46 .................................................................................................................. 15

MCL 168.47 ............................................................................................................ 15, 16

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

iii

MCL 168.841 ............................................................................................................ 7, 15

MCL 168.868(3) ............................................................................................................. 8

MCL 168.871 .................................................................................................................. 9

MCL 168.875 ................................................................................................................ 10

MCL 168.879 ........................................................................................................ passim

MCL 168.882 ........................................................................................................ passim

MCL 168.882(1) ....................................................................................................... 2, 10

MCL 168.883 ............................................................................................................ 8, 10

MCL 168.890 .................................................................................................................. 9

MCL 168.891 .................................................................................................................. 9

MCL 169.871(4) ........................................................................................................... 17

MCL 55.261 .................................................................................................................. 14

MCL 565.262 ................................................................................................................ 14

MCL 600.4401 ................................................................................................................ v

MCL 600.6419(1)(a) ........................................................................................... v, 17, 18

Constitutional Provisions

Const 1963, art 2, § 7 ..................................................................................................... 7

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

iv

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 with respect to Plaintiff’s request for mandamus relief in

Count I. To the extent Plaintiff requests declaratory relief and/or injunctive relief

in Counts II and III, such claims may only be brought against state entities and

officers in the Court of Claims. See MCL 600.6419(1)(a). Thus, this Court does not

have jurisdiction over those claims, and they must be dismissed.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

v

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.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

1

INTRODUCTION

Plaintiff Donald J. Trump filed the instant complaint requesting issuance of

mandamus, declaratory, and injunctive relief against Defendants State Board of

Canvassers and Director of Elections Christopher Thomas.1 For the reasons set

forth below, mandamus relief is not clearly warranted under the circumstances of

this case, and this Court does not have jurisdiction over any claims for declaratory

and injunctive relief.

1 Defendant Thomas will be filing a separate response in opposition to Plaintiff’s complaint.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

2

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.2 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 Dr. 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 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

2 The results are available on the Department of State’s website at http://miboecfr.nictusa.com/election/results/2016GEN_CENR.html.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

3

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. However, before the Board convened it and Director Thomas were

served with a complaint for mandamus and bypass application to the Michigan

Supreme Court by the Attorney General.3 The Board recessed for a brief time to

review the lawsuits, reconvened, and then moved to go into closed session to discuss

3 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.).

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

4

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 that 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).4 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

4 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).

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

5

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. However, 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 would begin Wednesday,

December 7, 2016.

After the meeting, the State Defendants were served with the instant

complaint for mandamus in the Michigan Court of Appeals and a bypass application

in the Michigan Supreme Court on behalf of Mr. Trump, which lawsuit raises

arguments similar to the objections filed with the Board.5 As in the Attorney

General’s case, the Defendant Board has been ordered to respond to the 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.). This 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

5 Plaintiff also filed a motion for immediate consideration of the complaint. The Defendant Board of State Canvassers does not object to immediate consideration.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

6

close of which the court took the matter under advisement and indicated that it

would issue a written opinion shortly. At 12:01 a.m., December 5, 2016, the federal

court issued a temporary restraining order directing Defendants Thomas and the

Board to commence the recount by noon the same day. (Ex. 4, TRO). The federal

court has ordered Defendant to conduct the recount “until further order of the

court.” Id.

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), 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

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

7

certainty as to leave 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 Const 1963, art 2, § 7, 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:

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

8

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.6

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.]7

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.]

6 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). 7 County boards of canvassers have similar duties to investigate recount petitions. See MCL 168.869 and 168.870.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

9

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.]

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

10

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, 2017.8

2. Count I – Mandamus

In Count I of his complaint, Plaintiff asserts that he is entitled to mandamus

relief because Dr. Stein’s recount petition did not comply with MCL 168.879 for the

reasons Plaintiff set forth in his objections previously filed with the Board.

(Complaint, ¶ 52) (Ex. 2, Objections).

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.

a. Requirement that candidate be aggrieved.

Plaintiff really argues that the Board should have ruled in a particular way –

first finding that Dr. Stein was not an “aggrieved” candidate for purposes of MCL

8 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.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

11

168.879(1)(b) because there is no possibility that a recount will change the results of

the election in Dr. Stein’s favor, and that she did not identify the nature of the fraud

or error committed as required by MCL 168.879(1)(f). (Complaint, ¶¶ 33-34, 40, 55).

Subsection 879(1)(b) provides in part 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. The petition shall contain specific allegations of wrongdoing only if evidence of that wrongdoing is available to the petitioner. If evidence of wrongdoing is not available, the petitioner is only required to allege fraud or a mistake in the petition without further specification.

* * *

(f) The petition sets 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 they exist. [MCL 168.879(1)(b).]

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.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

12

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 Dr. 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

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

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

13

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

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). 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.).

Moreover, 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.

In addition, the argument as to the application of subsection 879(1)(f) was not

clearly articulated to the Board in either Plaintiff’s written objections, or by the oral

arguments of Plaintiffs’ counsel at the December 2, 2016, hearing. One Board

member, Member Pero, identified this statute as the basis for her objection to the

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

14

recount petition. The application of subsection 879(1)(f) was discussed by the

magistrate judge in Bormouth, supra, which is not binding on the Board since it is

not a defendant in that case. Moreover, there appears to be some tension between

the application of subsection 879(1)(b), which does not require specific allegations of

fraud or mistake, and subsection 879(1)(f), which requires a candidate to identify

the nature of the fraud or mistake alleged. Thus, how subsection 879(1)(f) applies

to Dr. Stein’s petition was unclear. Under these circumstances, mandamus relief

generally will not lie.

b. The recount petition’s jurat.

Plaintiff asserted in his written objections filed with the Board and in the

instant complaint, (Complaint, ¶¶ 35-38), that the jurat on the recount petition was

not proper under Massachusetts law. Subsection 879(1)(e) requires that a recount

petition be “signed and sworn to by the candidate.” Massachusetts notaries are

currently governed by an Executive Order issued by the Governor of Massachusetts.

See Executive Order No. 455 (04-04), available at

www.sec.state.ma.us/pre/prenot/notidx.htm. This Order provides that compliance

with its forms is not required “if the document is to be filed” in another state. Id.,

Section (k), p 8. Further, Michigan’s Uniform Recognition of Acknowledgements Act

recognizes out-of-state notarizations. See MCL 565.262, 565.265. The format of the

jurat on the petition appears to comply with Michigan law, see MCL 55.261 et seq.,

and thus the Board did not have a clear legal duty to sustain the objection to the

petition on this basis.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

15

c. Electoral College and December 13, 2016 deadline.

Plaintiff appeared to assert in his written objections filed with the Board that

the Board should reject the petition because no recount could be completed by

December 13, 2016. (Ex. 2, Objections, pp 11-14). In his complaint for mandamus,

he asks this Court to “declare” that “because it is impossible for a hand recount to

be completed by December 13, 2016, any recount must be done using voting

machines rather than a hand count; [ ] if the recount is not complete by noon on

December 13, 2016, the Board shall ensure compliance with MCL 168.47 by

certifying Michigan’s electors based on the Board’s November 28, 2016

certification.” (Complaint, ¶¶ 45-50, ¶ c).

A candidate may file written objections to the “recount petition” and the

Board must “rule” on those objections to the recount petition. MCL 168.882(3). The

requirements for filing a recount petition are set forth in MCL 168.879. Plaintiff’s

concern regarding the conditional deadline created by 3 USC 5 is not a proper

objection to the form of the recount petition. Thus, the Board did not have a clear

legal duty to sustain this objection.

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

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

16

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 and 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 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

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

17

determination and any revised, certified 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).9

d. Machine count versus hand count.

In his complaint, Plaintiff asks that this Court “declare” that “because it is

impossible for a hand recount to be completed by December 13, 2016, any recount

must be done using voting machines rather than a hand count.” (Complaint, ¶ c).

Again, to the extent Plaintiff seeks declaratory relief, that claim must be denied or

dismissed for lack of jurisdiction.

As for mandamus, the Board has discretion to choose which method to use to

conduct the recount under MCL 169.871(4). When the recount commences 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. 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

9 Moreover, to the extent Plaintiff is seeking declaratory relief under MCR 2.605 with respect to this issue, this Court does not have jurisdiction to issue declaratory relief against state entities and officers. See MCL 600.6419(1)(a).

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

18

electoral process. Because the Board has discretion to determine which method to

use, and it exercised that discretion, mandamus relief is not appropriate.

3. Counts II and II for injunctive relief.

In Counts II and III of his complaint, Plaintiff asks this Court to issue a

preliminary injunction and temporary restraining order enjoining the Board and

Defendant Chris Thomas from taking actions to effectuate the recount. (Complaint,

¶¶ 64-78, ¶¶ d-f). No injunction may be issued against the Board by this Court.

The Michigan Election Law specifically provides that relief against the Board

shall be by mandamus:

Nothing in the following sections of this chapter contained shall be construed to repeal any action or remedy which may now exist by reference of any controversy to the courts, except that any proceeding intended to restrain, enjoin, modify, control or otherwise interfere with the action of the board of state canvassers, . . . or any other representative of the board of state canvassers operating under the provisions of the following sections of this chapter, shall be instituted only against the board of state canvassers and by no other action than mandamus. [MCL 168.878.]

Moreover, as with declaratory relief, requests for injunctive relief against the

State and its officers must be brought in the Court of Claims. MCL 600.6419(1)(a)

(Court of Claims has exclusive jurisdiction of claims for “equitable” relief against

State). Accordingly, this Court should deny or dismiss Plaintiff’s claims for

injunctive relief.

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM

19

CONCLUSION AND RELIEF REQUESTED

For the reasons set forth above, Defendant Board of State Canvassers

requests that this Court deny Plaintiff’s 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

RE

CE

IVE

D by M

CO

A 12/5/2016 12:41:16 PM