Page:Johnson v. Benson (162286) (2020) Order.pdf/15

15 Despite the apparent exclusiveness of the quo warranto proceeding, MCL 168.846 provides that “[w]hen the determination of the board of state canvassers is contested, the legislature in joint convention shall decide which person is elected.” This statute contains language that previously appeared in our 1850 Constitution as Article 8, § 5. The statute and constitutional provision have interesting histories. As described by one law professor from the period, Const 1850, art 8, § 5 ended the prevailing practice of having “all contests concerning elections to office … decided by the courts.” Wells, Reilly-Jennison: An Address to the People on the Recent Judicial Contest, Detroit Free Press (March 27, 1883), p 4; see also University of Michigan, Michigan Law, William P. Wells, Faculty, 1874-1891  (accessed Dec 7, 2020) [ https://perma.cc/V2PS-Z8ET]. But with the passage of this new constitutional section in 1850, “the power to decide election contests was taken away from the courts, in respect to the State officers named, and such other officers as the Legislature, by subsequent statutes, might add to the list.” Wells, Reilly-Jennison, p 4. This constitutional provision was carried over in the 1908 Constitution, see Const 1908, art 16, § 4. For some unknown reason, in 1917 the Legislature enacted the same substantive rule in statutory form. 1917 PA 201, chap XIX, § 12. It has remained there since and is now codified at MCL 168.846. See 1925 PA 351, part 4, chap XVI, § 11; 1954 PA 116, § 846. In the meantime, the voters amended the constitutional provision in 1935 so that the Legislature could prescribe rules by which the Board of State Canvassers would oversee election contests. See Ballot Proposal No. 1, 1935, amending Const 1908, art 16, § 4 (“In all cases of tie vote or contested election for any state office, except a member of the legislature, any recount or other determination thereof may be conducted by the board of state canvassers under such laws as the legislature may prescribe.”). At the convention that produced our current Constitution, the constitutional provision was considered to be “legislative in character” and thus was excluded altogether from the constitutional text. 1 Official Record, Constitutional Convention 1961, p 846 (Exclusion Report 2016). The convention committee that recommended the exclusion noted that statutes already governed this issue and the Legislature had authority over this area. Id. Under that constitutional provision, we held that the Legislature had “discretion” and that we could not require our coordinate branch to act. People ex rel Royce v Goodwin, 22 Mich 496, 502 (1871); see also Dingeman v Bd of State Canvassers, 198 Mich 135, 137 (1917) (“The legislature, bound by no hard and fast rule, may or may not, in its discretion, entertain contests.”). We further explained that the rationale for taking these disputes out of the courts was the “serious difficulties which would attend inquiries into contested elections, where the ballots of a great number of election precincts would require to be counted and inspected … .” Goodwin, 22 Mich at 501; see also Dingeman, 198 Mich at 137 (“The determination of the legislature is a finality, and private parties, ambitious to fill these offices, or litigious in character, cannot compel action by the legislature or go