Page:Johnson v. Benson (162286) (2020) Order.pdf/2

2 the results of elections for various statewide and other races within that county and forwarding those results to the Board of State Canvassers, MCL 168.824(1) and 168.828. The Board of State Canvassers then canvasses the figures from around the state, MCL 168.842(1), tabulating the figures and declaring the winners of the various races that the Board of State Canvassers must manage, MCL 168.844 and 168.845. Once the canvassing is finished, the county clerk (for county and local offices) and the Secretary of State (for higher offices) issues a certificate of election to the named winners. MCL 168.826(2) and 168.845.

At no point in this process is it even proper for these individuals to investigate fraud, illegally cast votes, or the like. “[I]t is the settled law of this State that canvassing boards are bound by the return, and cannot go behind it, especially for the purpose of determining frauds in the election. Their duties are purely ministerial and clerical.” McQuade v Furgason, 91 Mich 438, 440 (1892). After a certificate of election is issued, it is possible to challenge whether it was issued to the right individual. Usually this is done via a court action seeking what is called a writ of “quo warranto.” See MCL 600.4501 et seq. There are debates at the margins about exactly how this process might work—as noted by Justice, there is some dispute about who has standing to maintain an action for quo warranto and whether it can commence before an allegedly wrongful officeholder takes office—but this is the basic outline: the votes are counted, a certificate of election is issued, and then we debate whether said certificate was issued to the wrong individual. This is because of the limited authority of the canvassing board to simply tally votes cast. "The duties of these [canvassing] boards are simply ministerial: their whole duty consists in ascertaining who are elected, and in authenticating and preserving the evidence of such election. It surely cannot be maintained that their omissions or mistakes are to have a controlling influence upon the election itself. It is true that their certificate is the authority upon which the person who receives it enters upon the office, and it is to him prima facie evidence of his title thereto; but it is only prima facie evidence. [People ex rel Attorney General v Van Cleve, 1 Mich 362, 366 (1850).]"

It is in this context that I believe we must read petitioners’ complaint. At no point does their complaint ask that we declare that a particular slate of presidential electors was duly elected. Nor does their prayer for relief ask that we order the Secretary of State to perform an audit of this election under Const 1963, art 2, § 4(1)(h). Indeed, it is not entirely clear exactly what the nature of petitioners’ complaint even is; while MCR 2.111(B)(1) requires that a complaint lay out each “cause of action,” the complaint recites several vague counts (“Due Process,” “Equal Protection,” and “Article II, section 1, clause 2”) that are not recognized causes of action themselves. The only recognized cause of action is Count Four, which asks for “Mandamus and Quo Warranto.” These