which would attend inquiries into contested elections, where the ballots of a great number of election precincts would require to be counted and inspected; and probably, also, to discourage the needless litigation of the right to the higher public offices at the instance of disappointed candidates where the public interest does not appear to require it. A legislative body can exercise a discretion in such cases, and could not be compelled to enter upon such an inquiry except upon a preliminary showing which the courts are not at liberty to require. [People ex rel Royce v Goodwin, 22 Mich 496, 501-502 (1871).]
These jurisdictional problems seemingly put to rest petitioners’ allegations about how absentee ballots were handled in this election. They ask that we “segregate any ballots counted or certified inconsistent with Michigan Election Law” and, in particular, “any ballots attributable to the Secretary of State’s absentee ballot scheme”—a reference to the Secretary of State’s decision to send out unsolicited absentee ballot applications to voters. Whatever the legality of this decision on the Secretary of State’s part, it does not appear that the courts are the proper forum for challenging the validity of any votes cast in the race for presidential electors (as well as some other offices). For those offices where it might be challengeable, the proper means would be a quo warranto action. That said, I would note that laches may apply here—the time to challenge this scheme may have been before the applications were mailed out (or at least before the absentee ballots were cast), rather than waiting to see the election outcome and then challenging it if unpalatable.
These jurisdictional concerns are not the only problem with this petition. Petitioners’ prayer for relief does not ask that we direct the Secretary of State to conduct an audit of this election, although their briefing does invoke the right to an audit under Const 1963, art 2, § 4(1)(h)—added to our Constitution two years ago as part of Proposal 18-3. To the extent that the petitioners are trying to get a writ of mandamus against the Secretary of State to perform an immediate audit under the constitutional language,[1] I
- ↑ Justice Viviano says I am “mistaken in suggesting that petitioners here have not asked for an audit,” because petitioners’ complaint declares several times that the respondents “owe citizens an audit of election results that is meaningful and fair and to safeguard against election abuses.” In my view, asserting what citizens are owed is a far cry from demanding actual relief—particularly in light of the conceptual confusion that pervades this petition. The fact that Justice Viviano must patch together what the petitioners are apparently after by combining the petition’s allegations with its prayer for relief and the accompanying brief goes to show how weakly it is presented. Moreover, as noted by Justice Viviano, petitioners’ brief asks us to “enter an order requiring that the Michigan Legislature convene a joint convention to analyze and audit the election returns” or that this Court “should oversee an independent audit.” Given the nature of the writ of quo warranto, it is simply not a proper vehicle for receiving any audit-related relief. As
