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Protecting Michigan Taxpayers v. Board of State Canvassers

Court of Appeals of Michigan

May 11, 2018

PROTECTING MICHIGAN TAXPAYERS, JEFFREY WIGGINS, TONY DAUNT, and JEFFREY RAZET Plaintiffs,
v.
BOARD OF STATE CANVASSERS, DIRECTOR OF ELECTIONS, and SECRETARY OF STATE, Defendants,
v.
and PROTECT MICHIGAN JOBS, Intervenor.

          Before: Gleicher, P.J., and O'Connell and Tukel, JJ.

          GLEICHER, P.J.

         The issue presented is whether the Board of State Canvassers has a clear legal duty to certify an initiative petition despite that some of the petition circulators may have claimed fraudulent residential addresses. The statutory sanctions for any such irregularities do not include disqualifying elector signatures. We grant the plaintiff's complaint for mandamus and direct the Board of Canvassers to certify the petition.

         I

         The plaintiff, Protecting Michigan Taxpayers, is an organized ballot question committee that seeks to repeal Michigan's prevailing wage act, MCL 408.551 et seq. The act regulates the terms and conditions of employment for workers employed on state construction projects. The intervenor, Protect Michigan Jobs, is a ballot question committee formed to oppose the efforts of Protecting Michigan Taxpayers. Because the names and initials of the two parties are similar, we refer to the plaintiffs as Taxpayers and the intervenors as Jobs.

         Michigan's Constitution grants our citizens the right to enact or repeal laws through a ballot initiative process. Const 1963, art 2, § 9. Proponents of a voter initiative must submit petitions bearing the signatures of a certain number of registered voters to the Bureau of Elections within a timeframe set by the Legislature. To qualify for the November 2018 ballot, the magic number of signatures required is 252, 523. In November 2017, Taxpayers timely submitted 50, 483 petition sheets containing 382, 700 elector signatures.

         The Bureau of Elections examined the petition sheets and discarded those that were torn, mutilated, or otherwise obviously ineligible for signature counting. Bureau staff twice randomly sampled the remaining signatures to verify their validity. The Bureau projected that Taxpayers had gathered 268, 403 valid signatures, more than enough to qualify their initiative for the ballot.

         Jobs challenged the petitions on several grounds, including that 18 petition circulators certified that they resided at addresses Jobs believed likely fraudulent. According to Jobs, these circulators wrote down residence locations including a UPS Store, a motel, an auto repair shop, and a vacant, uninhabited piece of land. If valid, Jobs's challenge to the circulators would disqualify 295 petition sheets.[1]

         Taxpayers responded that MCL 168.544c, the statute governing petitions and circulators, does not require a circulator to provide any residential address at all. The Senate Majority Leader requested an Attorney General Opinion on this question. Eric Restuccia, the Chief Legal Counsel for the Department of the Attorney General, opined that while circulators must provide their residential addresses on the petition forms, the penalty for failing to do so (or for providing fraudulent information) does not include nullifying elector signatures. After considering the arguments of the parties and Restuccia's opinion, the Bureau of Elections recommended that the Board of Canvassers reject the address-related challenges.

         The Board of Canvassers met on April 26, 2018, and voted on whether to certify the petition. Two members voted in favor, and two were opposed. The deadlock precludes certification of the petition for the ballot. This mandamus action followed.

         II

         Our task is to decide whether the Board of Canvassers has a clear legal duty to certify the petition and submit it to the Legislature for consideration. See Const 1963, art 2, § 9. We review this question de novo, meaning that we consider it independently of the decisions reached by the Bureau of Elections or the Board of Canvassers. Citizens for Protection of Marriage v Bd of State Canvassers, 263 Mich.App. 487, 491-492; 688 N.W.2d 538 (2004). Mandamus is the proper remedy for a party aggrieved by an election official's inaction. Citizens Protecting Michigan's Constitution v Secretary of State, 280 Mich.App. 273, 283-284; 761 N.W.2d 210 (2008). Our analysis requires us to interpret MCL 168.544c, which we also perform de novo. Stand Up for Democracy v Secretary of State, 492 Mich. 588, 598; 822 N.W.2d 159 (2012).

         III

         Petition circulators must certify that they are at least 18 years of age and a United States citizen. They must further attest that the signatures they gathered were made in their presence, the circulator "has neither caused nor permitted a person to sign the petition more than once and has no knowledge of a person signing the petition more than once, " and that the signatures are genuinely those of registered electors. MCL 168.544c(1). This statute sets forth the "form" ...


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