And thus, we remain one of the only states without any clear framework to enable and regulate election contests. See Procedural Fairness, 88 Ind L J at 10; Douglas, Discouraging Election Contests, 47 U Rich L Rev 1015, 1028 (2013).[1] Instead, our state has various elements that do not quite add up to a coherent system. As noted, our Legislature has codified the ancient writ of quo warranto. See MCL 600.4501 et seq. and MCR 3.306; see also MCL 168.861 (“For fraudulent or illegal voting, or tampering with the ballots or ballot boxes before a recount by the board of county canvassers, the remedy by quo warranto shall remain in full force, together with any other remedies now existing.”). Under these proceedings, the court can determine the “right of the defendant to hold the office.” MCL 600.4505. But these actions usually must be brought by the attorney general—only if she refuses can a private citizen seek leave of court to make the claim. MCL 600.4501. And our caselaw has suggested that to prevail in the action, the plaintiff must present evidence that he or she is entitled to the office. See Marian v Beard, 259 Mich 183, 187 (1932) (“The [quo warranto] suit by a citizen, on leave of court, is a private action, and, therefore, the plaintiff must allege in the information the facts which give him the right to sue. Such allegations necessarily include the … showing of title in plaintiff.”) (citations and comma omitted); Barrow v Detroit Mayor, 290 Mich App 530, 543 (2010) (noting caselaw). Our statutes and court rule do not specify when these actions can be brought, but traditionally they required the defendant to have assumed office; thus one commentator has concluded that our framework “effectively preclude[s] election contests … .” Discouraging Election Contests, 47 U Rich L Rev at 1028; see also Procedural Fairness, 88 Ind L J at 11.[2] With respect to presidential electors, whose office exists for only a short period, it is not at all clear how a quo warranto action could timely form the basis for an effective challenge. Nonetheless, we have stated that “ ‘[t]he only way to try titles to office finally and conclusively is by quo warranto.’ ” Sempliner v FitzGerald, 300 Mich 537, 544-545 (1942), quoting Frey v Michie, 68 Mich 323, 327 (1888).
- ↑ See also Developments in the Law, Postelection Remedies, 88 Harv L Rev 1298, 1303 n 22 (1975) (noting that, at the time, Michigan was one of “[f]our states [that] do not generally provide for election contests, but do make available the writ of quo warranto”); Nat’l Conference of State Legislatures, After the Voting Ends: The Steps to Complete an Election (October 28, 2020) (“Forty-four states have statutes pertaining to election contests. The states lacking such statutes are … Michigan … .”) <https://www.ncsl.org/research/elections-and-campaigns/after-the-voting-ends-the-steps-to-complete-an-election.aspx> (last accessed Dec 8, 2020) [https://perma.cc/5RQ7UGR9].
- ↑ The lead opinion in In re Servaas, 484 Mich 634, 643 n 15 (2009) (opinion of Weaver, J.), suggested that quo warranto actions could be launched without regard to whether the defendant was currently in office. But as the dissenters cogently observed, quo warranto historically applied only “to claims that a public official is currently exercising invalid title to office.” Id. at 664 (Markman, J., dissenting).
