Page:Johnson v. Benson (162286) (2020) Order.pdf/17

17 election” and requiring it to be brought within 10 days “[i]n cases involving presidential electors”); Del Code Ann, tit 15, § 5921 (requiring “[a]ny person intending to contest the election of any one declared by the Governor to have been chosen an elector of President and Vice President” to file a declaration within 10 days of the Governor’s proclamation). And it is discretionary with the Legislature—they can take up the matter or not. Dingeman, 198 Mich at 137; compare Ark Code Ann 7-5-806(c) (requiring the Legislature to vote on whether “the prayers shall be granted” in various contested elections concerning executive offices). As things appear to stand, then, unless the Legislature can be convinced to review the matter, individuals alleging fraud in an election can obtain review, if at all, in a quo warranto action only when executive officials decline to initiate the action, only by leave of the court, and, mostly likely, only after it is too late to matter.

This backdrop makes the current case all the more important, as it involves a new tool for detecting fraud in elections. The voters in 2018 enacted sweeping changes to our election system. One of the new concepts introduced was an election audit. Article 2, § 4(1)(h) provides to “[e]very citizen of the United States who is an elector qualified to vote in Michigan … [t]he right to have the results of statewide elections audited, in such a manner as prescribed by law, to ensure the accuracy and integrity of elections.” Id. “The provision is self-executing, meaning that the people can enforce this right even without legislation enabling them to do so … .” Costantino, ___ Mich at ___; slip order at 4 (, J., dissenting), citing Wolverine Golf Club v Secretary of State, 384 Mich 461, 466 (1971). The Legislature has provided for these audits in MCL 168.31a, “which prescribes the minimum requirements for statewide audits and requires the Secretary of State to issue procedures for election audits under Article 2, § 4.” Costantino, ___ Mich at ___; slip order at 4 (, J., dissenting).

Petitioners here, like the plaintiffs in Costantino, seek to use this new right to obtain an audit of the election results. With that audit in hand, they apparently hope to