inherent … .” Const 1963, art 1, § 1. Not only that, but Const 1963, art 2, § 4(1)(h) has remarkable resonance for the precise controversy now before this Court because, even when viewed in hindsight, it seems unlikely that the people of Michigan could have crafted language that would more directly address this circumstance than they have already done in ratifying this very provision. Accordingly, I believe we owe it to the people of Michigan to fully and completely review the claims asserted by petitioners. For this reason, I would have immediately ordered oral arguments and briefing to assess, as expeditiously as was practicable, whether petitioners are properly before this Court and, if so, both provide guidance as to the meaning and scope of the right to an audit under Const 1963, art 2, § 4(1)(h), and determine whether petitioners are entitled to any of the other relief they seek.
Markman, J., joins the statement of Zahra, J.
Viviano, J. (dissenting).
For the second time in recent weeks, individuals involved in last month’s election have asked this Court to order an audit of the election results under Const 1963, art 2, § 4. See Costantino v Detroit, ___ Mich ___ (2020) (Docket No 162245). As in that case, petitioners here allege that election officials engaged in fraudulent and improper conduct in administering the election. In support of these claims, petitioners have submitted hundreds of pages of affidavits and expert reports detailing the alleged improprieties. Here, as in Costantino, I would grant leave to appeal so we can determine the nature and scope of the constitutional right to an election audit.[1] After all, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v Madison, 5 US (1 Cranch) 137, 177 (1803). But I write separately to highlight the lack of clarity in our law regarding the procedure to adjudicate claims of fraud in the election of presidential electors.[2]
The case before the Court is no small matter. Election disputes pose a unique test of a representative democracy’s ability to reflect the will of the people when it matters most. See Foley, Ballot Battles: The History of Disputed Elections in the United States (New York: Oxford University Press, 2016), pp 17-18. But it is a test our country has survived, one way or another, since its inception. The Founding Fathers faced their share of contested elections, as have subsequent generations. See generally id.
- ↑ Because of the time constraints imposed by federal law on the appointment of and balloting by federal electors, I would hear and decide this case on an expedited basis so that, if we accept petitioners’ interpretation of the constitutional right to an election audit, they will be able to exercise that right in a timely and meaningful manner.
- ↑ I do not address whether a claim of fraud could be adjudicated or investigated in the context of a recount.
