Order
Michigan Supreme Court
Lansing, Michigan
Bridget M. McCormack,
Chief Justice
David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh,
Justices
December 9, 2020
162286 & (3)(5)(6)(9)(10)
Angelic Johnson and Linda Lee Tarver,
Petitioners,
v
Secretary of State, Chairperson of the Board of State Canvassers, Board of State Canvassers, and Governor,
Respondents,
SC: 162286
On order of the Court, the motions for immediate consideration are granted. The petition for extraordinary writs and declaratory relief is considered, and it is denied, because the Court is not persuaded that it can or should grant the requested relief. The motions to intervene are denied as moot.
Clement, J. (concurring).
I concur in the Court’s order denying the relief sought in this complaint. Indeed, I do so in large part due to the legal authority cited by Justice Viviano in dissent. It is undeniable that the legal authority in this area has not been the subject of much litigation, and therefore there is little caselaw on point. However, there are many seemingly apparent answers—many of which are discussed at some length by Justice Viviano—and when these answers are combined with the defects in petitioners’ presentation of their case, I do not think it is an appropriate exercise of this Court’s discretion to prolong the uncertainty over the legal status of this election’s outcome. This Court routinely chooses not to hear cases which raise interesting and unsettled legal questions in the abstract when we conclude the case would be a poor practical vehicle for addressing those questions—which is my view of this case and these questions. Moreover, I believe it would be irresponsible to continue holding out the possibility of a judicial solution to a dispute that it appears must be resolved politically.
I think it is important at the outset to have a basic understanding of how elections in Michigan work. On Election Day, votes are cast. Once Election Day is over, the votes in each race are then counted at the precinct level. See MCL 168.801 (“Immediately on closing the polls, the board of inspectors of election in each precinct shall proceed to canvass the vote.”). Those results are then forwarded to the county. See MCL 168.809. The results are then canvassed by the board of county canvassers, see MCL 168.822(1), which declares the winners of county and local races, MCL 168.826(1), while tabulating
