Page:Johnson v. Benson (162286) (2020) Order.pdf/18

18 find further support for their challenge to the election. As my dissent in Costantino explained, the nature of the right granted in Article 4, § 4(1)(h) is an important issue this Court should resolve. A full resolution involves answering many questions, such as whether MCL 168.31a “accommodates the full sweep of the Article 2, § 4 right to an audit or whether it imposes improper limitations on that right” and whether the party seeking an audit must make some showing of entitlement, such as by presenting evidence of fraud. Costantino, ___ Mich at ___; slip order at 4-5.

But the core question this case and Costantino have presented is whether the petitioners are entitled to an audit in time for it to make any difference in their election challenges. In other words, is this right a means “to facilitate challenges to election results, or does it simply allow for a postmortem perspective on how the election was handled?” Id. at ___; slip order at 5. This gets to the heart of the struggle with these election disputes. The path for citizens of our state to raise serious claims of election wrongdoing, implicating the heart of our democratic institutions, is unclear and underdeveloped. This void in our law might suggest that the audit right in Article 2, § 4 was not intended to support election challenges. On the other hand, the very fact that the mechanisms for election challenges are so opaque might be a reason why the right to an audit is so critical. Moreover, to the extent the current system puts decisions in the hands of the Legislature, MCL 168.846, a timely audit might be essential for parties to convince the Legislature to entertain an election contest. And as I pointed out in Costantino, Article 2, § 4 was passed at a time when audits were increasingly viewed as a tool to measure the accuracy of election results so that recounts and other procedures could be employed if the audit uncovered problems. Costantino, ___ Mich at ___; slip order at 6.

Whatever the answer may be, the importance of the issue cannot be denied. Indeed, few topics so closely affect the maintenance of our democratic principles. As noted above, our laws governing election contests are underdeveloped in the context of the election of presidential electors. This uncertainty—particularly the lack of any laws that clearly govern the determination of presidential-election contests, although MCL 168.846 arguably applies—jeopardizes our ability to take advantage of the safe harbor in 3 USC 5, i.e., Congress’s guarantee to respect the state’s determination of election disputes over electors. For this reason, and perhaps even more importantly to provide our citizens with a coherent, fair, and efficient mechanism for adjudicating claims of fraud in the election of presidential electors, I respectfully urge the Legislature to consider enacting legislation creating such a mechanism.