makes clear that it “is not a recount and does not change any certified election results.” MCL 168.31a(2). While one might argue that the statute does not completely vindicate the petitioners’ constitutional “right to have the results of statewide elections audited,” Const 1963, art 2, § 4(1)(h), it seems important to note that the Constitution provides that the audit shall be performed “in such a manner as prescribed by law,” id. There is a somewhat confusing internal contradiction in the constitutional text, as the audit right is the only one said to be “as prescribed by law,” but all of the rights in § 4(1) are said to be “self-executing.” However, I see nothing to be gained in judicial exploration of this tension and examination of the scope of the audit right conveyed in § 4(1)(h) if there is no purpose to which the results could be applied. Moreover, deferring to the audit right as it is expressed in MCL 168.31a(2) would be consistent with the outcome of the remainder of the cases that have come to us which implicate Proposal 18-3. While this Court has denied leave in each of these cases and thus has taken no institutional position, see MCR 7.301(E), the consistent result has been to unsettle the least amount of the Michigan Election Law as possible when provisions of it are challenged under Proposal 18-3. We have thus left in place the statutory deadline of 8 p.m. on Election Day for absentee ballots to be received and counted as well as certain statutory voter registration requirements, and denied a prior challenge seeking an audit outside the boundaries of MCL 168.31a. See League of Women Voters v Secretary of State, ___ Mich ___ (2020) (Docket No. 161671), denying lv from ___ Mich App ___ (2020), recon den ___ Mich ___ (2020); Promote the Vote v Secretary of State, ___ Mich ___ (2020) (Docket No. 161740), denying lv from ___ Mich App ___ (2020); Priorities USA v Secretary of State, ___ Mich ___ (2020) (Docket No. 161753), denying lv from ___ Mich App ___ (2020); Costantino v Detroit, ___ Mich ___ (2020) (Docket No. 162245). As I have been the only member of the Court in the majority on all of these cases and the instant case, I cannot speak for my colleagues, but for my own part I can say that a desire to unsettle as little of the Michigan Election Law as possible has animated my approach to these cases.
Petitioners’ remaining requests in their prayer for relief put them in the curious position of volunteers in defense of the Legislature’s needs. Thus, they ask that we “take immediate custody and control of all ballots, ballot boxes, poll books, and other indicia of the Election … to prevent further irregularities, and to ensure that the Michigan Legislature and this Court have a chance to perform a constitutionally sound audit of lawful votes.” But if the Legislature needs to seize records, it has some authority to do so, see MCL 4.541, and if it needs judicial assistance in this regard, it is free to ask us. They similarly ask that we “appoint a special master or committee from both chambers of the Michigan Legislature to investigate all claims of mistake, irregularity, and fraud at the TCF Center … .” But the separation of powers makes it unthinkable that we would direct the Legislature to convene a committee to investigate anything—that branch’s choice to investigate is its own.[1] For our part, there is no need for a special master to
- ↑ Justice Viviano suggests the possibility that the “results of an audit could be used by petitioners to convince the Legislature to take up the matter and to prevail in that venue,”
