STATE OF MICHIGAN IN THE SUPREME COURT
MICHAEL JAY MARKEY, JR.,gubernatorial candidate, and THEMICHAEL MARKEY GOVERNORRACE CANDIDATE COMMITTEE (ID:520350), Plaintiffs-Appellants, v MICHIGAN SECRETARY OF STATE,THE BUREAU OF ELECTIONS, andTHE BOARD OF STATE CANVASSERS, Defendants-Appellees.
Supreme Court No: _____________
Court of Appeals No: 361580 Motion For Immediate Consideration:
Respectfully request decision by June 3, 2022
Thaddeus E. Morgan (P47394) Garett Koger (P82115) Paul V. McCord (P61138) Elizabeth Siefker (P83791) Fraser Trebilcock Davis & Dunlap, P.C. 124 W. Allegan, Suite 1000 Lansing, Michigan 48933 Telephone: (517) 482-5800 Fax: (517) 482-0887 Attorneys for Plaintiffs-Appellants
Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Michigan Dep't of Attorney General 525 W Ottawa Street Lansing, MI 48933 (517) 355-7659 [email protected] [email protected] Attorneys for Defendants-Appellees
PLAINTIFFS-APPELLANTS’ APPLICATION FOR LEAVE TO APPEAL THE
MICHIGAN COURT OF APPEALS’ DENIAL OF THEIR VERIFIED COMPLAINT FOR AN ORDER OF MANDAMUS, DECLARATORY RELIEF,
& INJUNCTIVE RELIEF
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
TABLE OF CONTENTS ................................................................................................. i
INDEX OF AUTHORITIES .......................................................................................... ii
STATEMENT OF JURISDICTION ............................................................................. iv
STATEMENT OF QUESTION PRESENTED ............................................................. v
INTRODUCTION .......................................................................................................... 1
STATEMENT OF FACTS AND PROCEDURAL HISTORY ....................................... 2
A. Factual Summary ..................................................................................... 2
B. Procedural Summary ............................................................................. 15
ARGUMENT ................................................................................................................ 16
I. Markey is Entitled to Mandamus and Reversal of the Court of Appeals is Therefore Warranted ............................................................ 17
A. Standard of Review ...................................................................... 18
B. Markey Satisfies the Elements for Mandamus .......................... 18
CONCLUSION & RELIEF REQUESTED ................................................................. 33
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INDEX OF AUTHORITIES
Page
Cases
Arrowhead Dev. Co. v Livingston Co. Rd. Comm., 413 Mich. 505 (1982) .................. 20
Attorney General v. Board of State Canvassers, 318 Mich App 273 (2008) ....... passim
Barrow v Wayne County Board of Canvasser, ____ Mich App ____, ____ (2022) ........................................................................................................................ 25
Berry v Garrett, 316 Mich App 37 (2016) .................................................................... 18
Citizens Protecting Michigan’s Constitution v Secretary of State, 503 Mich 42 (2018) ........................................................................................................................ 18
Committee to Ban Fracking in Michigan v Bd of State Canvassers, 335 Mich App 384 (2021) ......................................................................................................... 32
Deleeuw v State Bd. of Canvassers, 263 Mich App 497, 504 (2004) ........................... 20
Denton v Dep't of Treasury, 317 Mich App 303 (2016) ............................................... 18
Dep’t of Talent & Economic Development/Unemployment Ins. Agency v Great Oaks Country Club, Inc., 507 Mich 212 (2021) ....................................................... 20
Hillsdale Co. Senior Servs., Inc. v. Hillsdale Co., 494 Mich. 46 (2013) ..................... 29
Jaffe v. Oakland Co. Clerk, 87 Mich. App. 281 (1978) ............................................... 27
Johnson v Bd of State Canvassers, ____ Mich App ____ (2022) (Docket No.361564) .............................................................................................. 16, 30, 31, 32
Martin v Secretary of State Canvassers, 280 Mich App 417 (2008) ........................... 21
Rental Props Owners Ass’n of Kent Co v. Kent Co. Treasurer, 308 Mich App 498 (2014) ................................................................................................................. 18
State Bd of Ed v Houghton Lake Community Sch, 430 Mich 658 (1988) .................. 32
Stumbo v Roe, 332 Mich App 479 (2020) .................................................................... 20
Sweatt v Dep’t of Corrections, 468 Mich 172 (2003) ............................................. 20, 22
TCF Nat’l Bank v. Dep’t of Treasury, 330 Mich App 596 (2019) ................................ 18
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US ex rel Knauff v Shaughnessy, 338 US 537 (1950) ................................................... 5
Wilcoxon v. City of Detroit Election Com’n, 301 Mich. App. 619 (2013) .................... 27
Statutes
MCL § 168.53 ................................................................................................................. 2
MCL § 168.544c(11)(a) ............................................................................... 21, 22, 27, 32
MCL § 168.544c(11)(b) ..................................................................................... 21, 22, 32
MCL § 168.544f .............................................................................................................. 2
MCL § 168.552 ............................................................................................................. 22
MCL § 168.552(13) ............................................................................................... passim
MCL § 168.552(8) ................................................................................................. passim
Rules
MCR 7.216(A)(7) .......................................................................................................... 19
MCR 7.303(B)(1) ........................................................................................................... iv
MCR 7.305 ..................................................................................................................... iv
MCR 7.305(B)(2) .......................................................................................................... 16
MCR 7.305(B)(3) .......................................................................................................... 16
MCR 7.305(C)(2)(a) ....................................................................................................... iv
MCR 7.316(A)(7) .......................................................................................................... 19
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STATEMENT OF JURISDICTION
The Michigan Court of Appeals entered its final order denying Plaintiffs-
Appellants’ complaint seeking an order for mandamus against the Michigan
Department of State, the Bureau of Elections, and the State Board of Canvassers on
June 1, 2022. (See Ex. G, 6/1/22 MCOA Ord.) Plaintiffs-Appellants now seek leave
to appeal in this Honorable Court, pursuant to MCR 7.303(B)(1) and MCR 7.305.
Such is timely as the Court of Appeals’ order took immediate effect, and this
application is within forty-two days of that order. See MCR 7.305(C)(2)(a); (Ex. G,
6/1/22 MCOA Ord.).
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STATEMENT OF QUESTION PRESENTED
I. Does the Secretary of State, through the Bureau of Elections, wield plenary authority to unilaterally determine who is on the ballot in any given election notwithstanding statutory parameters?
Plaintiffs-Appellants’ answer: No.
Defendants-Appellees’ answer: Yes.
Court of Appeals’ answer: Yes.
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INTRODUCTION
Central to Michigan’s democratic process is the notion that voters, not
bureaucrats, decide the outcome of our elections. As such, Michigan law presumes
that a candidate who has satisfied the basic statutory requirements is to be offered
to voters. If the government wants to deprive voters of that choice it must
demonstrate knowing fraud. This statutory presumption then affords Michigan’s
electorate the opportunity to decide whom it deems worthy of November’s general-
election contest. Only in cases where a candidate knowingly engaged in fraud may
s/he be removed from the ballot.
In this case, Gubernatorial Candidate Michael Markey did no such thing.
Rather, Markey submitted the statutorily required documentation for his candidacy,
which included well over the requisite number of nominating-petition signatures.
Markey’s candidacy then received no challenge. Nevertheless, the Bureau of
Elections received complaints on other candidates for allegedly forged signatures on
their nominating petitions. The Bureau of Elections ignored the Legislature’s
statutory requirements to address suspected fraud and created its own never-before-
seen process. This novel approach, which is a product of bureaucratic creativity
rather than law, resulted in roughly eighty percent of Markey’s nominating-petition
signatures being removed without actually having been viewed, which disqualified
Markey from the ballot. Markey learned of this via Twitter rather than from those
responsible. The Bureau of Elections’ extra-statutory process now tees up a novel
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question for this Court: What limits has the Bureau of Elections to restrict the
electorate’s choices of candidates in a primary election?
STATEMENT OF FACTS AND PROCEDURAL HISTORY
A. Factual Summary
On March 18, 2022, Markey filed the nominating petition to run for the office
of Governor of Michigan, and therefore placement on the August 2, 2022 primary
ballot. To be included on the official primary ballot, a gubernatorial candidate for
nomination must submit nominating petitions with at least 15,000 signatures. See
MCL § 168.53; MCL § 168.544f.1 Markey’s nominating petitions contained 21,804
signatures—6,804, more than required. In conjunction with filing his nominating
petitions, Markey signed a sworn affidavit stating that those signatures were valid
and genuine to the best of his information, knowledge, and belief.
On May 23, 2022, the Bureau of Elections (“the Bureau”) published its Staff
Report on Fraudulent Nominating Petitions (“staff report”) and its Review of
Nominating Petition; Michael Jay Markey, Jr. Republican Candidate for Governor
(“review”) online. (See generally, Ex. A Stf. Rep; Ex. B, Markey Rev.) The staff report
identified alleged widespread petition fraud affecting the nominating petitions of an
unprecedented number of candidates for public office. (See Ex. A, Stf. Rep.) With
respect to Markey, the Bureau alleged that of the 21,804 signatures filed by Markey,
1 A gubernatorial candidate must also have petitions that are “signed by at least 100 registered resident electors in each of at least ½ of the congressional districts of the state.” It is undisputed that Markey satisfies this criteria.
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79.68% or 17,374 were invalid due to suspected fraud. (See Ex. B, Markey Rev., p 1.)
This is the first time Markey and his team learned of a problem with his nominating
petitions, or that Markey was being publicly accused of a relationship to “fraudulent”
activity by the Bureau. In fact, Markey learned of this through the social media app,
Twitter.
The staff report claims that during its review of the nominating petitions for
the August 2, 2022 primary, the Bureau “identified 36 petition circulators who
submitted fraudulent petition sheets consisting entirely of invalid signatures.” (Ex
A Stf. Rep, p 1.) According to the Bureau, “All petition sheets submitted by these
circulators displayed suspicious patterns indicative of fraud, and staff reviewing
these signatures against the Qualified Voter File (QVF) did not identify any
signatures that appeared to be submitted by a registered voter.” (See Id.)
The Bureau claims that because of the large number of candidates trying to
qualify for the August 2, 2022 primary ballot, “Bureau staff began to review
nominating petitions at the end of March, after several gubernatorial candidates had
submitted nominating petitions.” (Id. at 2.) “During this review, staff noticed that a
large number of petition sheets, submitted by certain circulators, appeared
fraudulent and consisted entirely of invalid signatures.” (Id.) Citing the volume of
allegedly fraudulent signatures as justification, the Bureau directed its staff who
reviewed nominating petitions to implement an ad-hoc procedure by which they
reportedly observed patterns of fraud among certain petition circulators. Staff were
to then flag all nominating petition sheets submitted by these circulators and
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presume all signatures on all flagged sheets to be fraudulent, in direct contradiction
to Michigan law. (See Ex. A, Stf. Rep., pp 3-5.)
According to the report, these petition sheets “tended to display at least one of
the following patterns: (1) an “unusually large number of petition sheets where every
signature line was completed, or where every line was completed but one or two line
were crossed out”; (2) sheets with “signs of apparent attempts at ‘intentional’
signature invalidity”; (3) an “unusually large number of petition sheets that showed
no evidence of normal wear that accompanies circulation”; (4) sheets that “appeared
to be ‘round tabled’ ”; (5) sheets on which “blank and completed lines were randomly
interspersed,” which apparently indicates “that a sheet had been submitted ‘mid-
round-table’ ”; (6) sheets “where all ten lines had signatures and partial addresses or
dates, but only a random subset were fully completed”; (7) sheets on which every
instance of the handwriting of certain letters was identical across lines, including
signatures; and (8) sheets “where the two or three distinct handwriting styles
appeared on multiple sheets.” (Id. at 2.)
The report claims that these observations led the Bureau staff to begin
comparing signatures to the QVF, which it claims revealed more issues, including:
(1) discrepancies between the petition signatures and the QVF signatures; (2)
signatures corresponding to addresses where the voter was previously registered; (3)
signatures corresponding to formerly registered voters whose registrations were
cancelled due to death; (4) signatures where the name on the petition was spelled
differently than in the QVF, or “where the petition used the voter’s middle name or a
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diminutive or nickname”; and (5) signatures that listed the mailing address
jurisdiction rather than the actual jurisdiction. (Id. at 3.) The Bureau’s report claims
these issues led Bureau staff, individuals who remain unnamed, to identify
“numerous circulators” who they subjectively believed to be forging signatures while
“utilizing an outdated mailing list obtained from some source.” (Id.)
The Bureau opined its standard, long-standing approach to nominating
petitions has two stages. First, staff ‘face reviews’ every petition sheet and signature
for facial compliance with Michigan’s election law, which entails checking the heading
and circulator certificate; ensuring that the signature is accompanied by address,
date, and name; and checking that the listed city or township is in the county listed
on the heading. (Id. at 3-4.) After this stage, if the candidate has enough facially
valid signatures to qualify for the ballot, the Bureau notes the difference (or
“cushion”) and then “reviews any challenges to the petition’s sufficiency.”2 (Id. at 4)
(emphasis added.) If the cushion exceeds the number of challenges, the Bureau does
not process the challenge. If not, the Bureau processes the challenge to determine
2 For the first time and unknown to Markey since he filed his nominating petitions on March 18, 2022, Defendants-Appellees disclosed in their Answer and Brief in Response filed on June 1, 2022 that a complaint had been lodged against Markey's petitions. However, because the Bureau had apparently already determined that Markey was below the qualifying threshold, "staff did not process the challenge made to Plaintiff's signatures . . . " Defendants-Appellees’ Answer and Brief in Response, at p 11. This is troublesome as, "The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected." US ex rel Knauff v Shaughnessy, 338 US 537, 551 (1950)(Jackson, J, dissenting).
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whether the candidate has enough signatures to meet the statutorily required
threshold. (Id.)
Significantly, the report admits that “the Bureau has previously not developed
a separate review procedure for fraudulent petition sheets.” (Id.) Thus, “in the past,”
the Bureau “would review sheets and signatures individually if identified during face
review or during a challenge.” (Id.) However, in this case, the Bureau averred that
“because of the unprecedented number of [subjectively] fraudulent petition sheets
consistent of invalid signatures during the initial review of petition sheets . . . it was
not practical to review these sheets individually during the course of ordinary face
review and challenge processing.” (Id.)
In other words, the Bureau recognized its duty under the law, but claimed it
simply hadn’t the resources to carry out that duty and instead the Bureau came up
with a completely new, novel and shortcut process that included “an additional step.”
(Id.) Put simply, the Bureau cut corners: “Prior to face review, staff reviewed each
candidates’ petitions for petitions signed by circulators who were suspected of
submitting fraudulent sheets” and “separated” them from the remaining petition
sheets for each candidate.” (Id.) (emphasis added.)
Then after separating these allegedly fraudulent sheets, the Bureau staff did
not do a comparison of every single signature they contained. Rather, “staff
conducted a targeted signature check of signatures across each circulator’s sheets for
each candidate to confirm that theses circulators’ submissions in fact consisted of
fraudulent sheets with invalid signatures.” (Id. at 4-5.) “Targeted” in Markey’s case
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seems to mean that merely “ten” out of 21, 804 signatures were checked against the
QVF, however, it now seems Defendants-Appellees have additional information that
they only now disclosed in their response to Markey’s complaint. (Ex. B, Markey
Rev., p 2; see also Def’s 6/1/22 Resp.) After determining “that all reviewed
signatures”—but not all signatures—“appearing on sheets signed by the fraudulent-
petition circulators were invalid,” the Bureau counted up the total number of
signatures on the allegedly fraudulent sheets and subtracted it from the number of
signatures submitted by the candidate. (Ex. B, Markey Rev., p 2, p 5.) If the
candidate still had more than enough signatures to meet the required threshold, “the
petitions were then put through the fact review and challenge process.” (Id. at 5.) If
not, then the Bureau “recommended the Board determine the petition insufficient.”
(Id.)
In all, Bureau compared about seven-thousand of the more than sixty-
eight-thousand signatures at issue against the QVF. Therefore, nearly ninety percent
of signatures were not compared in the flagged sheets to confirm that they consisted
of only fraudulent signatures as suspected across all campaigns vying to get placed
on the August 2, 2022 primary ballot. (See Id., p. 4.) The Bureau’s review of the
portion of the flagged sheets reportedly found that an astonishing none of the
approximately seven-thousand signatures compared against the QVF had “any
redeeming qualities.” (See Ex. A, Stf. Rep., p 5.) Indeed, during its hyper-diligent
review of now all candidates’ nominating petitions—even those like Markey who
received no challenges—the Bureau allegedly uncovered a fraud ring that
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coincidently implicated five gubernatorial candidates. (See generally, Ex. A, Stf. Rep.)
Based on this unlawful presumption of invalidity described above, the Bureau
unilaterally decided that more than sixty-thousand signatures the Bureau admits it
or its staff did not individually review were categorically invalid for no other reason
than the name of the circulator who had submitted them. This resulted in Markey
(among other candidates) purportedly falling under the fifteen-thousand-signature
threshold. (See Ex. B, Markey Rev., p 1.)
A number of complaints were filed against several candidates’
nominating petitions, two such campaigns that received challenges were other
gubernatorial candidates. (See Id. at 3.) However, unlike the James Craig and Perry
Johnson campaigns, Markey never received a challenge to his nominating petitions.
(See Ex. B, Markey Rep. p 3; c.f. Ex. B, Craig Rep., p 4; Ex. C, Johnson Rep., p 6.)
According to the Bureau’s review, although Markey had submitted a total of
21,804 signatures, the Bureau declared that only 4,430 were considered valid. (See
Ex. B, Markey Rev., p 1.) Because 4,430 signatures is far less than the fifteen-
thousand signature requirement, the Bureau recommended that the Board of
Canvassers (“the Board”) determine Markey’s petition was insufficient to certify him
as a gubernatorial candidate. (Id at 3.) The review identified a total 17,374
signatures the Bureau deemed to be invalid. (Id. at 1.) Specifically, the Bureau
concluded that:
a. Ten signatures were invalid because these ten signatures did not match the QVF.
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b. Two signatures were invalid because they “had been
cancelled.”
c. The report also identified that these two signatures identified above were also incomplete (“the use of a first name and last initial”) that had been cancelled, eighty-one signatures were invalid because of “[a]ddress errors (no street address or rural route given)”
d. Four signatures were identified as invalid because of
“[c]haracteristics of certain fraudulent-petition circulators” (multiple signatures appear to have been written by the hand)”.
e. 17,374 signatures were invalid because they were “on sheets submitted by fraudulent-petition circulators.” [Id.]
In addition to all the above procedural defects, the Bureau’s review shows
computational errors negatively affecting Markey’s signature count. Based on
records from Markey’s campaign and the staff report, the Bureau wrongly assigned
an extra two-thousand-five-hundred invalid signatures to Markey’s total. (See Id.)
In one instance, the Bureau attributed 1980 invalid signatures to “Indira
Radcliff.” (Id. at 2.) However, Markey’s campaign records reveal that Indira Radcliff
submitted only 470 signatures. As a result, even if all the signatures Radcliff
collected were invalid, the Bureau subtracted an extra 1510 signatures from Markey’s
total number of valid signatures. That’s a roughly eighty-percent-of-Markey’s total
signatures blunder. And the Bureau is making these kinds of allegations with those
kinds of errors in its own documentation. Furthermore, the Bureau also attributed
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465 invalid signatures to a circulator named “Siarra Brown”—a person who did not
even collect signatures for Markey’s campaign. (See Id. at 1.)
Incredibly, the Bureau used an unprecedented targeting “process” to strike
every single signature from any individual or entity whom it declared to be a
“fraudulent-petition circulator.” In other words, instead of reviewing each signature
for authenticity with the presumption that every signature on every sheet is valid,
the staff indiscriminately struck more than sixty-eight-thousand signatures,
including 17,374 from Markey’s nominating petitions based on the Bureau’s decision
to ignore its statutory duty.
The Bureau described its process for identifying allegedly fraudulent
signatures:
Signatures from the following 24 fraudulent- petition circulators were included in Mr. Markey's submission:
Davon Best 397 signatures Brianna Briggs 883 signatures Siarra Brown 465 signatures Charles Calvin 50 signatures Nicholas Carlton 197 signatures DeShawn Evans 1,529 signatures Justin Garland 1,125 signatures LeVaughn Hearn 338 signatures Briana Heron 1,038 signatures Aaliyah Ingram 393 signatures Danyil Lancaster 755 signatures Teddrick Lee 1,293 signatures Niccolo Mastromatteo 319 signatures Indira Radcliffe 1,980 signatures Aaliyah Render 359 signatures Priya Render 1,535 signatures Giovannee Smith 928 signatures
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Tremari Smith 474 signatures Ryan Snowden 594 signatures Stephe Tinnin 929 signatures Freddie Toliver 8 signatures Diallo Vaughn 791 signatures Yazmine Vasser 347 signatures William Williams 647 signatures Total 17,374 signatures
The Bureau then asserted that “these circulators submitted signatures with
the patterns consistent with other filings where alleged fraud was discovered. (See
Ex. B, Markey Rev., pp 1-2.) While the Bureau claimed 17,274 signatures on
Markey’s petitions were the product of widespread fraud, the Bureau only specifically
identified fifteen signatures as fraudulent—but only ten were compared to the QVF.
(See Id. at 2-3.) On information and belief, to this day, but for ten signatures, no one
has ever compared each of the remaining 17,264 signatures on Markey’s petition that
were disqualified using the QVF. Of the 21,804 signatures the Bureau reports
Markey having submitted, the Bureau admitted that 17,374 of them were invalid for
having been submitted by “fraudulent circulators.” (Id. at 1.) In other words, the
Bureau presumed that nearly eighty percent of Markey’s signatures were invalid
and affirmed its presumption after reviewing an unknown exact number of these
allegedly fraudulent signatures.
The Bureau recognized that it has no “reason to believe that any specific
candidate or campaigns were aware of the activities of fraudulent-petition
circulators.” (See Ex. A, Stf. Rep., p 5.) Nonetheless, Markey is being punished by
Bureau’s on-the-fly invention of its extra-statutory process to cut corners because the
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Bureau claims it could not comply with the law. Yet, simultaneously, it expects
everyone else to comply with the Bureau’s own subjective interpretation of the law.
On May 26, 2022, the Board held a public hearing on Markey’s nominating
petitions, although this hearing was rushed and included a number of other
gubernatorial candidates and candidates down the ballot. At the hearing, the
Bureau’s director, Jonathan Brater (“Brater”), admitted that the Bureau
recommended invalidating signatures without checking each of them against the
QVF.
Specifically, the Bureau’s report discussed that of the more than sixty-eight-
thousand signatures submitted by the alleged fraudulent circulators, the Bureau only
compared about seven-thousand of those signatures (a little more than ten percent)
against the QVF. See, Michigan Department of State / Secretary of State (2022, May
26) Board of Canvassers Meeting May 26, 2022, YouTube.
https://www.youtube.com/watch? V=S5njPEX4PVE&t=12864s, at 1:00:55 (9:47:55
AM) (herein after “Meeting Video.”) At no point did Brater ever state how many
signatures on Markey’s petitions were reviewed by the Bureau. Brater certainly
never said he personally reviewed the signatures. But at one point, Brater
maintained that Michigan law does not require the Bureau to check every signature
against the QVF.
The Board then took up the following motion on Markey’s nominating petition:
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Time Lapse
Speaker Text
@5:06:52: Chair Shinkle: Next item on the agenda is #13 report on Michael Markey.
@ 5:06:56: Vice Chair Gurewitz:
I move that the board accept the staff recommendation and find the nominating petition
filed by Michael Markey, insufficient.
@ 5:07:06: Member Bradshaw:
Support.
@5:07:07 Chair Shinkle: It's been moved and supported to find
...(mumbling) ... support the staff recommendation is insufficient for Michael
Markey, discussion on that motion, seeing none, I'll ask
Adam to call the roll.
@5:07:18 Adam Fracassi taking roll:
Chair Shinkle?
@5:07:19 Chair Shinkle: No.
@5:07:21 Adam Fracassi: Vice Chair Gurewitz?
@5:07:22 Vice Chair Gurewitz:
Yes.
@5:07:23 Adam Fracassi: Member Daunt?
@5:07:24 Member Daunt: No.
@5:05:25 Adam Fracassi: Member Bradshaw?
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@5:07:26 Member Bradshaw:
Yes.
@5:07:27 Adam Fracassi: Mr. Chair you have 2 yays and 2 nays.
@ 5:07:29 Chair Shinkle: That's the five for the governors right there, my
comments and Tony Daunt's, the reason for my no vote.
As the Board deadlocked two-to-two along partisan lines, the motion to accept the
Bureau’s recommendation and find that Markey’s nominating petitions were
insufficient, did not carry. In other words, having rejected the Bureau’s
recommendation to find Markey’s petition insufficient, Markey seems to have
logically been certified on the ballot. Indeed, Michigan law supports the presumption
of a candidate’s validity unless proven otherwise by the government so as to not
disenfranchise voters.
However, Brater interjected to declare, via mis-characterizations of what the
Board actually voted on, the motion’s disposition as follows:
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Time Lapse
Speaker Text
@5:10:15 Brater: If I could, just to note, where we are with these candidates
we just voted on just for everyone's information, so
because there was not three votes to place the candidates
on the ballot to find their petition sufficient, that the
disposition of the board is that those eight candidates at this
time are not going on the ballot. So those candidates, ah, if they disagree with that, will
need to file a lawsuit, hopefully promptly.
Thus, no vote was actually taken on whether Markey should be certified for
inclusion on the ballot. Upon information and belief, the Board will not, contrary to
the logical result of the specific vote of the Board, certify Markey for the August 2,
2022 primary ballot by the required three affirmative votes. As a result of the
Bureau’s illegal actions, based on Brater’s decree, Markey has been improperly
excluded from the primary-election ballot.
B. Procedural Summary
On May 29, 2022, Markey filed an original action for mandamus in the Court
of Appeals. (See generally, 5/29/22 Compl.) Markey requested an order requiring
Defendants-Appellees Michigan Department of State (“the Department”), the
Bureau, and the Board to place Markey on the August 2, 2022 primary-election ballot
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immediately. Defendants-Appellees responded on June 1, 2022, and argued,
basically, that Defendants-Appellees have broad discretion to administer Michigan’s
elections how they see fit within the limits of their resources. (See generally, 6/1/22
Resp. Compl.) The Court of Appeals denied Plaintiffs-Appellants’ complaint for
mandamus, and in so doing cited its newly published opinion in Johnson v Bd of State
Canvassers, ___ Mich App ___ (2022) (Docket No. 361564). (See Ex. G, 6/1/22 MCOA
Ord; Ex. H, 6/1/22 Johnson Opinion.)
ARGUMENT
This Court should grant Plaintiffs-Appellants’ application for leave to appeal
or other appropriate preemptory relief. This case presents issues of significant public
interest, and there is no clear precedential guidance. (See Ex. G, 6/1/22 MCOA Ord.)
(“the instant case involves questions of significant public interest . . . .”.) It also calls
into question the extent of the legal authority that Defendants-Appellees, and the
actors within them in their official capacities, wield when it comes to shaping
Michigan voters’ choices in a primary election. These reasons justify review under
MCR 7.305(B)(2).
Further, the issues presented here involve “legal principle[s] of major
significance to [Michigan’s] jurisprudence.” MCR 7.305(B)(3). Should it stand that
the Bureau of Elections may invent procedure on the fly that results in an
unprecedented number of gubernatorial candidates being thrown off the primary-
election ballot for no wrongdoing of their own, the invitation for tick-for-tack turmoil
in our elections moving forward will be flagrant. Michigan needs clear guidance from
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this Court so that everyone who decides to run for office in the future will know
exactly what the rules of the game are. Otherwise, there can be no fair process to
bring a robust field of candidates to Michigan’s voters. To permit bureaucratic
creativity to control Michigan’s elections rather than law will forever leave Michigan’s
voters at the mercy of unelected bureaucrats. Thus, Michigan requires this Court’s
wisdom on these significant issues, and it should therefore grant leave. See Id.
* * *
In the event it so grants, Plaintiffs-Appellants offer the following arguments
based on the statutory text and with the backdrop that Michigan courts have
historically resolved such matters in a way that does not disenfranchise its voters:
I. Markey is Entitled to Mandamus and Reversal of the Court of Appeals is Therefore Warranted
This Court should reverse the decision of the Court of the Appeals to deny
Markey’s complaint for mandamus; a subsequent order from this Court to place
Markey on the August 2, 2022 primary-election ballot is then warranted because
Markey is entitled to mandamus. This is because the Bureau ignored its clear legal
duty to presume Markey’s candidacy valid unless and until it received a challenge to
Markey’s nominating petitions, and it could prove Markey knowingly committed
fraud. Because Markey received no challenge and committed no such fraud, as is
undisputed, Markey had the clear legal right to enjoy the statutory presumption that
his candidacy is best left to Michigan’s voters in the primary election. Accordingly,
Defendants-Appellees had the ministerial duty of placing Markey on the primary-
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election ballot as a choice for Michigan’s electorate. Defendants-Appellees, however,
refuse to perform that ministerial duty based on their rogue and on-the-fly
interpretation of the law. Therefore Markey has no other remedy than mandamus.
The Court of appeals erred in not recognizing this, and reversal of it is therefore
appropriate.
A. Standard of Review
Questions of statutory interpretation are reviewed de novo. TCF Nat’l Bank v.
Dep’t of Treasury, 330 Mich App 596, 605 (2019). While the decision on whether to
grant mandamus is reviewed for abuse of discretion, this Court reviews underlying
questions of law regarding the government’s clear legal duties and its citizens’ clear
legal rights de novo. See Citizens Protecting Michigan’s Constitution v Secretary of
State, 503 Mich 42, 59 (2018); Berry v Garrett, 316 Mich App 37, 41 (2016). “A trial
court abuses its discretion when its decision falls outside the range of reasonable and
principled outcomes.” Rental Props Owners Ass’n of Kent Co v. Kent Co. Treasurer,
308 Mich App 498, 531 (2014) (quotation marks and citation omitted.) “An error of
law necessarily constitutes an abuse of discretion.” Denton v Dep't of Treasury, 317
Mich App 303, 314 (2016).
B. Markey Satisfies the Elements for Mandamus
Markey satisfies the elements for mandamus, and this remedy is appropriate
in this case. “‘Mandamus is the appropriate remedy for a party seeking to compel
action by election officials’” Attorney General v. Board of State Canvassers, 318 Mich
App 273, 283 (2008) . A writ of mandamus is appropriate where Markey satisfies
four elements, and meets additional clarifying criteria:
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(1) [Markey] has a clear legal right to performance of the specific duty sought, (2) [Defendants-Appellees] ha[ve] 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.
This Court may also ‘enter any judgment or order or grant further or different relief as the case may require[.]” MCR 7.216(A)(7).[3] The issuance of a writ of mandamus rests within the discretion of this Court. “[Markey] bears the burden of demonstrating entitlement to the extraordinary remedy of a writ of mandamus.’
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.’ [State Canvassers, 318 Mich. App. at 248-249 (internal citations omitted).]
There is no dispute that Defendants-Appellees must follow their clear legal statutory
duty. Whether Defendants-Appellees were burdened by a clear legal duty, and
therefore Markey enjoyed the clear legal right provided by that duty, is a matter of
statutory interpretation.
When interpreting statutes related to Michigan election law, the following
principles apply:
When interpreting a statute, this Court's primary goal is to ascertain the intent of the Legislature. We first review the language itself because the words of the statute provide the most reliable evidence of the Legislature's intent. We afford every word and phrase of the statute its plain and ordinary meaning unless otherwise statutorily defined. We may consult a dictionary to give words their common and ordinary meanings. If the statute's language is clear and unambiguous, we may not engage in judicial construction. When interpreting law governing elections, we must construe the statutes ‘as far as possible in a way which prevents the disenfranchisement of
3 This Court has the same authority MCR 7.316(A)(7).
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voters through the fraud or mistake of others.’ [State Canvassers, 318 Mich. App. at 250 (internal citations omitted) (emphasis added).]
Additional principles of statutory construction apply:
The words of the statute are the most reliable evidence of the Legislature's intent, and this Court must give each word its plain and ordinary meaning. ‘In interpreting the statute at issue, [this Court] consider[s] both the plain meaning of the critical words or phrase as well as ‘its placement and purpose in the statutory scheme.’ “When a statute's language is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written.” [Stumbo v Roe, 332 Mich App 479, 484-485 (2020) (internal citations omitted).]
Central to this Court’s analysis is the placement of words and their contextual
meaning as adopted by the Legislature. See Dep’t of Talent & Economic
Development/Unemployment Ins. Agency v Great Oaks Country Club, Inc., 507 Mich
212, 226-227 (2021). Words used in statutes are not read in a vacuum, but instead
are “’read in context with the entire act, and the words and phrases used there must
be assigned such meanings as are in harmony with the whole of the statute, construed
in the light of history and common sense.,’” Sweatt v Dep’t of Corrections, 468 Mich
172, 179 (2003), quoting Arrowhead Dev. Co. v Livingston Co. Rd. Comm., 413 Mich.
505, 516 (1982) (emphasis added).
Still poignant to this day, “ ‘There is a fundamental difference between actions
taken to get a candidate’s name on the ballot and actions taken to prevent it from
appearing.’ ” Deleeuw v State Bd. of Canvassers, 263 Mich App 497, 504 (2004). In
sum, Deleeuw, stands for the proposition that the interests of the public are better
served by having the names of candidates placed on the ballot rather than by
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removing them.” Martin v Secretary of State Canvassers, 280 Mich App 417, 429, 504
(2008) (overruled on other grounds), citing Deleeuw, 263 Mich App at 504.
Central to the issue of Defendants-Appellees’ invention of procedure in
violation of their clear legal duty here, which deprived Markey of his clear legal right
is the proper interpretation of the following statute:
If after a canvass and a hearing on a petition under section 476 or 552 the board of state canvassers determines that an individual has knowingly and intentionally failed to comply with subsection (8) or (10), the board of state canvassers may impose 1 or more of the following sanctions:
(a) Disqualify obviously fraudulent signatures on a petition form on which the violation of subsection (8) or (10) occurred, without checking the signatures against local registration records.
(b) Disqualify from the ballot a candidate who committed, aided or
abetted, or knowingly allowed the violation of subsection (8) or (10) on a petition to nominate that candidate. [MCL § 168.544c(11)(a-b) (emphasis added).]
The operative word here is “obviously.” Indeed, turning to a dictionary, it means “as
plainly evident” to all. Merriam-Webster’s Dictionary Online (2022). As used in the
statute, something cannot be “obvious” if it’s not specifically looked at, or viewed by
an examining human being. MCL § 168.544c(11)(a). This means each signature must
be reviewed in order to determine whether it is obviously fraudulent. Only in so doing
may MCL § 168.544c(11)’s express requirement that only obviously fraudulent
signatures be struck from a petition form be met. Indeed, the qualifier, “obviously,”
serves as clarification that not only fraudulent signatures may be stricken—but only
those that are obviously so. See MCL § 168.544c(11)(a). This is the “common-sense”
reading of MCL § 168.544c(11)(a)’s plain language, read within the context of
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Michigan election law so as to not disenfranchise Michigan voters. See Sweatt, 468
Mich. at 179; State Canvassers, 318 Mich. App. at 250. Were this not the case, the
Legislature would have written MCL § 168.544c(11)(a) to read something like, “the
Bureau may strike any petition signatures it deems to be fraudulent.” However, the
Legislature instead required fraudulent signatures to be “obviously fraudulent”
before they could be excluded without verification from the local voters’ records.
What is more, MCL § 168.544c(11) and its Sub (b) require that an “individual”
and a “candidate” knowingly and intentionally submit fraudulent signatures on a
nominating petition before the candidate can be removed from the ballot. In short,
these statutory provisions, read as a harmonious whole, permit the extreme sanction
of kicking a candidate off the ballot altogether be as a result of the candidate’s
knowing and intentional participation in fraud. See MCL § 168.544c(11), (b); Sweatt,
468 Mich at 179. If there is no evidence of a candidate’s knowing participation with
fraud, then the presumption is that the candidate is on the ballot so long as the
facially-sufficient nominating petitions have been submitted. See e.g. Id.
This comports with MCL § 168.544c(11)’s express incorporation of MCL §
168.552:
Upon the filing of nominating petitions with the secretary of state, the secretary of state shall notify the board of state canvassers within 5 days after the last day for filing the petitions. The notification shall be by first-class mail. Upon the receipt of the nominating petitions, the board of state canvassers shall canvass the petitions to ascertain if the petitions have been signed by the requisite number of qualified and registered electors. Subject to subsection (13), for the purpose of determining the validity of the signatures, the board of state canvassers may cause a doubtful signature to be checked against
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the qualified voter file or the registration records by the clerk of a political subdivision in which the petitions were circulated. [MCL § 168.552(8) (emphasis added).]
In the event the Board considers a specific signature’s validity to be called into
question, the process in such circumstance is unambiguous. The QVF must be
utilized. If the QVF does not contain a digitized signature, the township clerk shall
compare the petition signature to the signatures contained on the master card:
The qualified voter file may be used to determine the validity of petition signatures by verifying the registration of signers. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote, there is a rebuttable presumption that the signature is invalid. If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote in the city or township designated on the petition, there is a rebuttable presumption that the signature is invalid. The qualified voter file shall be used to determine the genuineness of a signature on a petition. Signature comparisons shall be made with the digitized signatures in the qualified voter file. The county clerk or the board of state canvassers shall conduct the signature comparison using digitized signatures contained in the qualified voter file for their respective investigations. If the qualified voter file does not contain a digitized signature of an elector, the city or the township clerk shall compare the petition signature to the signature contained on the master card. [MCL § 168.552(13) (emphasis added).]
The Legislature puts further restrictions on any bureaucratic creativity when a
candidate’s nominating petitions are challenged directly:
If the board of state canvassers receives a sworn complaint, in writing, questioning the registration of or the genuineness of the signature of the circulator or of a person signing a nominating petition filed with the secretary of state, the board of state canvassers shall commence an investigation. Subject to subsection (13) [above], the board of state canvassers shall verify the registration or the genuineness of a signature as required by subsection (13). If the board is unable to verify the genuineness of a signature on a petition, the board shall cause the petition to be forwarded to the proper city clerk or township clerk to
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compare the signatures on the petition with the signatures on the registration record, or in some other manner determine whether the signatures on the petition are valid and genuine. The board of state canvassers is not required to act on a complaint respecting the validity and genuineness of signatures on a petition unless the complaint sets forth the specific signatures claimed to be invalid and the specific petition for which the complaint questions the validity and genuineness of the signature or the registration of the circulator, and unless the complaint is received by the board of state canvassers within 7 days after the deadline for filing the nominating petitions. After receiving a request from the board of state canvassers under this subsection, the clerk of a political subdivision shall cooperate fully in determining the validity of doubtful signatures by rechecking the signatures against registration records in an expeditious and proper manner. The board of state canvassers may extend the 7-day challenge period if it finds that the challenger did not receive a copy of each petition sheet that the challenger requested from the secretary of state. The extension of the challenge deadline under this subsection does not extend another deadline under this section. [MCL § 168.552(8) (emphasis added).]
To tie it all together, MCL § 168.544c(11)’s sanctions are unavailable to the
Bureau and the Board unless and until they follow MCL § 168.552(8)’s clear
procedure, as tempered by MCL § 168.552(13). These two statutes working in
conjunction is what provides each candidate due process, and expressly imparts the
presumption of validity to a candidate’s nominating petitions unless each signature
is verified at the county level or against the QVF, or a challenge is received within
seven days from submission and a proper investigation as to the credibility of the
complaint is conducted. See MCL § 168.552(8), (13). Unless and until these clear
statutory triggers are made, the Board and the Bureau have the clear—as outlined
above—legal duty to certify nominating petitions for the primary-election ballot.
And, again, the extreme sanction of barring a candidate from the ballot is only
available if the Board first completes its investigative duties under Section 552 and
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after a meaningful hearing where a candidate may rebut allegations of fraudulent
signatures. See MCL § 168.544c(11) (If after a canvass and a hearing on a petition
under section . . . 552 . . . .”).
Here, virtually none of that happened. Indeed, the Bureau claimed that it
experienced more volume with regard to nominating petitions in this election cycle
than ever before, which it claimed called for bureaucratic creativity. (See Ex. D, Stf.
Rep., pp 3-5.) As such, and instead of following its own long-standing enumerated
procedures, the Bureau invented a new procedure that violated the above statutory
procedures. Defendants-Appellees admit staff at the Bureau only “spot checked the
sheets that they thought were fraudulent by checking about ‘seven-thousand’
signatures against the QVF. Of the seven-thousand that they checked, not one was
verifiable.” (See MI Senate TV at 9:47:55 AM (1:00:53).) Bureau of Elections Director
Jonathan Brater claimed, “”We did look at every single line. What we were not able
to do with the time we had available, was to look every single one up in QVF. So
instead we looked at as many as we could.” (See Id. at 1:11:09.)
Importantly, while the statute may leave some ambiguity on exactly how the
Board, while perhaps practically using the Bureau as its investigative arm, is to
conduct its investigation into challenged nominating-petition signatures, see Barrow
v Wayne County Board of Canvasser, ____ Mich App ____, ____ (2022), slip op at 6,
but the Board does not have discretion on the process laid out by statute in that it
must verify questionable signatures in either the QVF or at the county level. See
MCL §§ 168.544c(11), 168.552(8), (13). In other words, Defendants-Appellants have
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the clear legal duty to follow the process laid out by the Legislature notwithstanding
time constraints or difficulties; such is the nature of a duty, it’s often very
inconvenient. Because Defendants-Appellees effectively admit to violating their clear
legal duty, as outlined in the above-cited statutes, Mandamus’ first element is
satisfied. See State Canvassers, 318 Mich. App. at 248-249.
This clear legal duty imparted on Defendants-Appellees granted Markey the
clear legal right to enjoy the due process laid out by statute with regard to Markey’s
nominating petitions. See MCL §§ 168.544c(11), 168.552(8), (13). Indeed, “Upon the
filing of nominating petitions with the secretary of state, the board of state canvassers
shall canvass the petitions to ascertain if the petitions have been signed by the
requisite number of qualified and registered electors.” MCL § 168.552(8). This
review is to take place “[s]ubject to subsection (13),” which demands “[t]he qualified
voter file shall be used to determine the genuineness of a signature on a petition.
Signature comparisons shall be made with the digitized signatures in the qualified
voter file. The county clerk or the board of state canvassers shall conduct the
signature comparison using digitized signatures contained in the qualified voter file
for their respective investigations.” MCL § 168.552(13).
In other words, Defendants-Appellants must afford Markey the benefit of the
doubt on every single signature, and may only strike individual signatures that do
not match up with the QVF during. See Id. Because it is undisputed that Defendants-
Appellees did no such thing here, Markey is entitled to the clear legal right to the
presumption of validity regarding his nominating petitions. See e.g. Wilcoxon v. City
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of Detroit Election Com’n, 301 Mich. App. 619, 640 (2013) (electors’ undated
signatures on nominating petitions for city clerk were presumed to be valid); Jaffe v.
Oakland Co. Clerk, 87 Mich. App. 281, 285 (1978) (“Signatures appearing on petitions
filed with the Secretary of State for initiative and referendum are presumed valid,
and the burden is on the protestant to establish their invalidity by clear, convincing
and competent evidence.”). Indeed, the only way Defendants-Appellees are permitted
to exclude any signatures under MCL § 168.544c(11)(a)) is if they are “obviously
fraudulent,” which as previously discussed requires an examination of the QVF. This
subsection allows signatures to be excluded without checking the local records, but it
does not excuse the requirement that the signatures be checked against the digitized
signatures in the QVF. Presumably if the Legislature had intended to excuse
compliance with that requirement, it would have said so by use of language
appropriately signifying that intent. It did not do so and, thus, such an intent should
not be discovered based upon language inserted by judicial fiat.
This notion of the presumption of validity is further parroted in the
Department’s own manual, which one would presume the Bureau would need to
follow. (See Ex. E, SOS Man., pp 12-13.) In other words, according to both the
Department and Michigan law, unless a signature is so obviously fraudulent that,
upon actual inspection, it has absolutely no redeeming qualities—it is to be counted
towards the fifteen-thousand-signature threshold Markey was required to meet for
governor. See MCL § 168.544c(11)(a); (Ex. E, Nm. & Qual. Pet. Man., pp 12-13.) And
rightly so because, in addition to being contrary to the above cited statutory authority,
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the outcome of a decision to disqualify him would unjustly punish Markey, and
disenfranchise Michigan’s voters based on the acts of the criminals who committed
the allegedly fraudulent acts. See Id; State Canvassers, 318 Mich App at 250 (“When
interpreting law governing elections, we must construe the statutes ‘as far as possible
in a way which prevents the disenfranchisement of voters through the fraud or
mistake of others.’”). Construing any statute to limit the right of Michigan’s voters
to enjoy a robust field of candidates to any office would be to disenfranchise voters by
removing their options. This is something Michigan’s long-standing jurisprudence
prohibits, and the Department’s own manual instructs against.
Moreover, the vote at the May 26, 2022 hearing was to “accept the staff
recommendation and find the nominating petition filed Michael Markey,
insufficient.” (Id., at 5:06:52 – 5:07:02.) The vote on this motion did not pass due to
partisan deadlock. (See Id.) Therefore, the Bureau’s recommendation to deem
Markey’s nominating petition was rejected. (See Id.) Brater then interjected by
declaring Markey was off the ballot. (See Id.) However, this does make logical sense,
and Brater has no authority to override the Board’s vote. Nor did Brater have any
authority to declare action by the Board did not take. There has not been a vote by
the Board as to whether Markey should be placed on the ballot. Thus, Markey has
the legal right to enjoy the benefit of the Board’s vote with respect to the actual motion
that was before it. As such, the second element of mandamus is doubly met. See
State Canvassers, 318 Mich. App. at 248-249.
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Moving on, the third element for mandamus requires the act in question to be
“ministerial.” “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.” Hillsdale Co. Senior Servs., Inc. v. Hillsdale
Co., 494 Mich. 46, 58 n. 11 (2013) (quotation marks and citation omitted). There is
no question that, when no challenges have been brought to a candidate’s nominating
petitions, placement of the candidate on the primary ballot is “ministerial.” Indeed,
when a sufficient number of signatures are obtained for a nominating petition, and
there has been no lawful showing that the signatures are invalid, see MCL §§
168.544c(11), 168.552(8), (13), the Board’s duty to place the proposal or candidate on
the ballot is a ministerial function. See Citizens for Protection of Marriage v. Board
of State Canvassers, 263 Mich. App. 487, 492-493 (2004) (internal citations omitted).
In this case, it is undisputed that Markey’s petition for inclusion on the ballot was
supported by a more-than sufficient number of facially valid signatures. And there
has been no legally sufficient basis to conclude that any more than ten of those
signatures were legally invalid. Thus, Defendants’ ministerial duty is clear, and
mandamus’ third element is satisfied. See State Canvassers, 318 Mich. App. at 248-
249.
Finally, mandamus’ fourth element demands that there is no other remedy
that exists that is capable of achieving Markey’s presence on the August 2, 2022
primary ballot. Indeed, there is no other way, both legally and practically speaking,
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for Markey to be placed on the ballot other than a writ of mandamus. Markey
satisfies the fourth element.
The elements of mandamus are met for the reasons stated above, and an order
to Defendants-Appellees requiring them to perform their ministerial duties of placing
Markey on the ballot should issue.
* * *
However, the Court of Appeals did not agree. On June 1, 2022, it entered an
opinion for publication finding that gubernatorial candidate Perry Johnson could not
satisfy mandamus and thereby appear on the August 2, 2022 primary-election ballot.
See Johnson v Bd of State Canvassers, ____ Mich App ____ (2022) (Docket No.361564).
The Court of Appeals subsequently entered its order denying Markey’s complaint for
mandamus citing “the same essential reasons set forth in Johnson v Bd of State
Canvassers[.]” (Ex. G, 6/1/22 MCOA Ord.). Respectfully, the Court of Appeals erred
in its decision because, contrary to its assertion, Defendants-Appellees do not enjoy
discretion on the procedure required in reviewing a candidate’s facially valid
nominating-petition signatures.
Importantly, the facts in Markey’s case are fundamentally different than the
facts in Johnson. Unlike Johnson, Markey’s petitions were never challenged, and
nearly no line-by-line scrutiny was given Markey’s signatures. Markey also, unlike
Johnson, found out about purported issues with his signatures via Twitter a couple
days before the May 26, 2022 hearing where Markey’s placement on the primary-
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election ballot was supposed to be a foregone conclusion based on the lack of
challenges against him.
Nevertheless, the Johnson opinion’s fatal flaw is in its conclusion that
Defendants-Appellees wield discretion in how they are to invalidate nominating-
petition signatures. (See Ex. H, Johnson Op., p 9.) (“Likewise, because the Board had
the discretion to not check each and every signature submitted by the fraudulent-
petition circulators, the act Johnson is seeking to compel defendants to perform is not
ministerial in nature.”) Based on the explicit procedure in verifying the individual
signatures via the QVF and/or the local county records, invalidation of signatures is
a ministerial act and not a discretionary one. See MCL §§ 168.544c(11), 168.552(8),
(13). Indeed, the Court of Appeals cited the precise language in its opinion: “The
qualified voter file shall be used to determine the genuineness of a signature on a
petition.” (See Ex. H, Johnson Op., p 9), quoting MCL § 168.552(13) (emphasis in
original).)
To the extent the Court of Appeals focused on the word “may” in the beginning
of MCL § 168.552(13) to conclude this function is discretionary in this context,
Plaintiffs-Appellants aver that a fair reading of the entire provision as a harmonious
whole reveals signatures can only be invalidated using the QVF. See Id. Thus, the
“may” here best fits within the statutory scheme if read as clarification as to how the
Board is to go about reviewing signatures suspected of being fraudulent. See Id. This
would not be the first time the word “may” has been understood not to be permissive,
but in a mandatory manner when read in the specific context of petitions. See e.g.
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Committee to Ban Fracking in Michigan v Bd of State Canvassers, 335 Mich App 384,
396 (2021) (internal citations omitted).
Indeed, when reading the word “may” as having a permissive meaning “would
clearly frustrate legislative intent as evidenced by other statutory language or by
reading the statute as a whole,” it should not be read in such a way. Id. And as it
relates to MCL § 168.552(13), given the multiple “shalls” that follow the first “may,”
it is clear the statutory intent here is to require signatures to be invalidated only via
the QVF—an official record. This is bolstered by the presumption of validity, as
explained above, that is also built into the statutory scheme. And the fact that
sanctions for fraud require knowledge and intent before the Board may impose
sanctions. See MCL §§ 168.544c(11)(a-b) . Without an official file like the QVF to
reference, it would be impossible to prove fraudulent signatures were intentionally
or knowingly submitted.
It is clear that these legal questions are challenging, and are made more so by
the extreme time crunch placed on the courts to decide these matters. However, this
Court can correct this error by reversing the Court of Appeals for the foregoing
reasons. This is necessary because, as the Court of Appeals eloquently stated, “ ‘The
primary purpose of the writ of mandamus is to enforce duties created by law, where
the law has established no specific remedy and where, in justice and good
government, there should be one.’ ” (See Ex. H, Johnson Op., p 9), quoting State Bd
of Ed v Houghton Lake Community Sch, 430 Mich 658, 667 (1988).) Markey agrees,
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and justice and good government should now be served by issuance of the requested
writ of mandamus.
CONCLUSION & RELIEF REQUESTED
For the foregoing reasons, this Honorable Court should grant immediate
consideration of this application for leave to appeal. It should then issue the
requested the writ of mandamus requesting Defendants-Appellees to include Markey
on the August 2, 2022 primary-election ballot. Alternatively, grant leave to appeal
and enjoin the printing of the ballots pending disposition of this matter by this
Honorable Court.
Respectfully submitted, FRASER TREBILCOCK DAVIS & DUNLAP, PC Attorneys for Plaintiff
By: /s/ Garett L. Koger Garett L. Koger (P82115)
Thaddeus E. Morgan (P47394) Paul V. McCord (P61138)
Elizabeth Siefker (P83791)
Dated: June 2, 2022
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