Page:Costantino v. City of Detroit (162245) (2020) Order.pdf/7

7 involve investigating fraud. See McLeod v State Bd of Canvassers, 304 Mich 120 (1942); see also People ex rel Williams v Cicott, 16 Mich 283, 311 (1868) (opinion of Christiancy, J.) (noting that the boards, “acting thus ministerially,” are “often compelled to admit votes which they know to be illegal”); see generally Paine, Treatise on the Law of Elections to Public Offices (1888), § 603, p 509 (“The duties of county, district, and state canvassers are generally ministerial. … Unless authorized by statute, they cannot go behind those returns. … Questions of illegal voting and fraudulent practices are to be passed upon by another tribunal.”). The Board of State Canvassers has more of a role in investigating fraud in recounts, although we have held that it cannot exclude votes on this basis. See MCL 168.872 (providing that if the board conducting a recount suspects fraud occurred during the election, it can make an investigation that produces a report that is submitted to the prosecuting attorney or to the circuit judges of the county); May v Wayne Co Bd of Canvassers, 94 Mich 505, 512 (1893) (holding that the board could not exclude votes during a recount based on fraud). These holdings may suggest that evidence of fraud uncovered in an audit is not a barrier to certification and instead may only be used to challenge an election in quo warranto and other related proceedings. See The People ex rel Attorney General v Van Cleve, 1 Mich 362, 364-366 (1850) (holding in a quo warranto proceeding that the certification “is but prima facie evidence” of the election results and that a party can “go behind all these proceedings[; that the party] 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”).

Consequently, it is imperative to determine the nature and scope of the audit provided for in Article 2, § 4, so we can determine when the audit occurs and whether it will affect the election outcome. These questions are important constitutional issues of first impression that go to the heart of our democracy and the power of our citizens to amend the Constitution to ensure the accuracy and integrity of elections. They deserve serious treatment. I would grant leave to appeal and hear this case on an expedited basis to resolve these questions. For these reasons, I dissent.