Page:Johnson v. Benson (162286) (2020) Order.pdf/16

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elsewhere and secure delay in carrying out the recorded will of the electorate.”). As a result, in Goodwin, which involved a petition for a writ of quo warranto, we stated that this constitutional language “does not permit the regularity of elections to the more important public offices to be tried by the courts.” Goodwin, 22 Mich at 501. This rule has been followed in numerous cases, including in elections for the judiciary—but it has not been cited or discussed by this Court or the Court of Appeals in many decades.^[1] But the Senate’s rules currently provide for these contests. Senate Rule 1.202(d) (February 12, 2019).^[2]

The plain language of MCL 168.846, and the caselaw interpreting that language from our earlier constitutions, would appear to apply to contested presidential elections. And, since it is arguable whether quo warranto applies before a defendant assumes office, MCL 168.846 may offer the only route for contesting a presidential election before it becomes final.^[3] But the statute does not provide for any definite or detailed procedures to determine election contests, as the Electoral Count Act appears to contemplate. 3 USC 5. Compare, e.g., Cal Election Code 16400 and 16401 (providing for contests of “any

↑ See Vance v St Clair Co Bd of Canvassers, 95 Mich 462, 466 (1893) (“Contests respecting the title to that office [i.e., the circuit judgeship] must be made before the Legislature. That body finally determines the very matters which the board of canvassers in the present case propose to pass upon.”); Dingeman, 198 Mich at 136, 139 (“It is, and must be, conceded that the Constitution has vested in the legislature sitting in joint convention the power of finally determining the question who was elected to the office of circuit judge. … Running through all these cases is the rule, to my mind clear and distinct, that wherever by the organic law, whether Federal, State, or municipal, a tribunal is created to finally determine the right to an office, that tribunal is exclusive, and there, and there only, may the right to the office be tested. By the organic law of this State the legislature, sitting in joint convention, is made such tribunal as to the office here involved.”); see also McLeod v Kelly, 304 Mich 120, 126-127 (1942) (applying Dingeman); Behrendt v Bd of State Canvassers, 269 Mich 247, 248 (1934) (same); Wilson v Atwood, 270 Mich 317 (1935) (rejecting petition for leave to file quo warranto action regarding the office of Secretary of State when, under the constitutional provision in effect at the time, the Legislature did not properly meet in joint convention to hear the election contest).
↑ Although I did not locate any reference to this procedure in the Standing Rules of the House of Representatives or the Joint Rules of the House and Senate.
↑ The petitioners here have, in fact, recently filed a petition with the Legislature to obtain an election audit and other relief. See Feather, CW7 News, Voters Petition Michigan Legislature to Audit Election Results, Call SOS Under Oath, <http://cw7michigan.com/news/local/voters-petition-michigan-legislature-to-audit-election-results-call-sos-under-oath> (accessed December 7, 2020) [https://perma.cc/PL2G-M3RV].

[1] See Vance v St Clair Co Bd of Canvassers, 95 Mich 462, 466 (1893) (“Contests respecting the title to that office [i.e., the circuit judgeship] must be made before the Legislature. That body finally determines the very matters which the board of canvassers in the present case propose to pass upon.”); Dingeman, 198 Mich at 136, 139 (“It is, and must be, conceded that the Constitution has vested in the legislature sitting in joint convention the power of finally determining the question who was elected to the office of circuit judge. … Running through all these cases is the rule, to my mind clear and distinct, that wherever by the organic law, whether Federal, State, or municipal, a tribunal is created to finally determine the right to an office, that tribunal is exclusive, and there, and there only, may the right to the office be tested. By the organic law of this State the legislature, sitting in joint convention, is made such tribunal as to the office here involved.”); see also McLeod v Kelly, 304 Mich 120, 126-127 (1942) (applying Dingeman); Behrendt v Bd of State Canvassers, 269 Mich 247, 248 (1934) (same); Wilson v Atwood, 270 Mich 317 (1935) (rejecting petition for leave to file quo warranto action regarding the office of Secretary of State when, under the constitutional provision in effect at the time, the Legislature did not properly meet in joint convention to hear the election contest).

[2] Although I did not locate any reference to this procedure in the Standing Rules of the House of Representatives or the Joint Rules of the House and Senate.

[3] The petitioners here have, in fact, recently filed a petition with the Legislature to obtain an election audit and other relief. See Feather, CW7 News, Voters Petition Michigan Legislature to Audit Election Results, Call SOS Under Oath, <http://cw7michigan.com/news/local/voters-petition-michigan-legislature-to-audit-election-results-call-sos-under-oath> (accessed December 7, 2020) [https://perma.cc/PL2G-M3RV].

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