Michigan high court rejects GOP request to seize election materials

Lansing — The Michigan Supreme Court has rejected a lawsuit from two Michigan Republicans who asked the court to take custody of election materials to allow for an investigation, the high court's second rejection of a suit challenging Michigan's election results.

The 4-3 decision included a brief denial, noting the court was "not persuaded that it can or should grant the requested relief."

But the decision included one concurring and two dissenting opinions from Republican-nominated justices, who have a 4-3 majority on the court. Republican-nominated Justice Beth Clement joined her three Democratic-nominated colleagues in rejecting the suit. 

It would be "imprudent" and "irresponsible" to hold out the possibility of a judicial answer to a political dispute, Clement said. 

"Petitioners’ complaint casts more heat than light on the legal questions it gestures toward, and would not help us in providing a definitive interpretation of the law in this area," Clement said. 

The lawsuit, filed on Thanksgiving Day, asked the high court to take custody of all Nov. 3 election materials to give the Michigan Legislature time to audit the results, investigate all claims of ballot irregularities and fraud, and "finish its constitutionally mandated work to pick Michigan's electors."

It was filed on behalf of Michigan Republicans Linda Lee Tarver and Angelic Johnson, who were represented by the Thomas More Society's Amistad Project. 

But the complaint was unclear regarding what electoral outcome the plaintiffs actually sought to change, it had no clear claims related to canvassers neglecting their legal duty, and its allegations that Secretary of State Jocelyn Benson illegally distributed absentee ballot applications come more than six months after the decision was made, Clement said. 

"...The time to challenge this scheme may have been before the applications were mailed out (or at least before the absentee ballots were cast), rather than waiting to see the election outcome and then challenging it if unpalatable," Clement said. Benson's mailing was challenged in court, but upheld by both the state Court of Claims and the Court of Appeals.

Further, the Legislature has the ability to seize records if it seeks to do so, making it inappropriate for the judiciary to intervene in another branch of government, Clement said. 

"Petitioners further ask that we enjoin actions that have already occurred the certification of the winners of this election), that we retroactively invalidate absentee ballots whose issuance they did not challenge in advance of the election, and that we preserve evidence for the Legislature to review that it either can gather for itself or that it has not asked us to assist in preserving," Clement said. 

"I simply do not believe this is a compelling case to hear," she said.

Republican-nominated justices Brian Zahra and David Viviano in dissents joined by Republican nominated Justice Stephen Markman argued that a ballot proposal passed in 2018 left lingering questions about its implementation in 2020 that could be heard and considered by the court. 

Zahra said he would have ordered immediate oral arguments to address some of those questions, noting the plaintiffs have the right under law to request a Supreme Court review of the 2020 canvassing process. 

Viviano noted that the court should consider both the procedure under which the state would investigate fraud claims ahead of the electoral vote and the "nature and scope of the constitutional right to an election audit." Viviano made a similar argument last week in a separate case seeking an audit of Wayne County results. 

"Election disputes pose a unique test of a representative democracy’s ability to reflect the will of the people when it matters most," Viviano said. "But it is a test our country has survived, one way or another, since its inception."

Most states have legislation that addresses how an election result is to be resolved ahead of the electoral process, but Michigan does not, Viviano said. As a result, much of the litigation in Michigan's 2020 post-election uproar has focused on canvassing boards, which are largely ministerial with no opportunity to investigate fraud. 

"We remain one of the only states without any clear framework to enable and regulate election contests," Viviano wrote. 

The 2018 constitutional amendment came with a new tool that could help to investigate claims of fraud in 2020 — an election audit, Viviano said. 

But the "core question" to be decided is whether the 2018 amendment entitles plaintiffs "to an audit in time for it to make any difference in their election challenges," he said. 

"This gets to the heart of the struggle with these election disputes. The path for citizens of our state to raise serious claims of election wrongdoing, implicating the heart of our democratic institutions, is unclear and underdeveloped," Viviano wrote. The failure of the Supreme Court to take up the case, he said, closes "the courthouse door" on plaintiffs who "now will go without any answer."

Tarver and Johnson's suit was filed directly with the Supreme Court under a Michigan law that allows plaintiffs with grievances against the Board of State Canvassers to plead before the state justices.

The lawsuit largely targeted allegations arising from absentee ballot processing at the TCF Center in Detroit, Benson's mass mailing of absentee ballot applications and funding received by the state from an organization called the Center for Tech and Civic Life — arguments that have been made in other Trump suits meeting similar defeats. It alleges violations of state Constitutional rights, such as equal protection and due process. 

eleblanc@detroitnews.com