Petitioners also ask that we enjoin respondents “from finally certifying the election results and declaring winners of the 2020 general election … .” As an initial matter, this would seem to be moot—it has been widely reported that this already has occurred. A “past event cannot be prevented by injunction.” Rood v Detroit, 256 Mich 547, 548 (1932). Even had that not happened, however, it does not appear that the law contemplates any role for the courts in this process. As noted by Justice Viviano, the ordinary process by which a Michigan election result can be challenged is via quo warranto proceedings. We have said
that you may go to the ballots, if not beyond them, in search of proof of the due election of either the person holding, or the person claiming the office. And this is as it should be. In a republican government, where the exercise of official power is but a derivative from the people, through the medium of the ballot box, it would be a monstrous doctrine that would subject the public will and the public voice, thus expressed, to be defeated by either the ignorance or the corruption of any board of canvassers. [Van Cleve, 1 Mich at 365-366.]
However, when the Board of State Canvassers must declare the winner of an election—as it must with presidential electors, MCL 168.46—the Legislature has, in MCL 168.846, apparently suppressed quo warranto proceedings and reserved to itself the prerogative of determining who the winner is. Such an arrangement is consistent with how disputes over elections to the United States Congress and the Michigan Legislature are resolved, see US Const, art I, § 5, cl 1; Const 1963, art 4, § 16, as well as the plenary authority that state legislatures have over the selection of presidential electors under federal law, see US Const, art II, § 1, cl 2; 3 USC 2.[1] As Justice Viviano observes, the language of MCL 168.846 was formerly in the Michigan Constitution of 1850. When it was, we observed that it
does not permit the regularity of elections to the more important public offices to be tried by the courts. It has provided that in all cases, where … the result of elections is to be determined by the Board of State Canvassers, there shall be no judicial inquiry beyond their decision. … This provision was doubtless suggested by the serious difficulties
- ↑ One could fairly question whether it is constitutional for MCL 168.846 to reserve to the Legislature the prerogative to settle disputes over elections to offices required by the Michigan Constitution—a Legislature inclined to abuse this power could conceivably nullify an election that the Michigan Constitution requires to be held. But the Michigan Constitution does not require that presidential electors be themselves popularly elected, and reserving final decision-making authority in the Legislature as to that specific office is consistent with federal constitutional and statutory law.
