Counting absentee ballots; Const 1963, art 2, § 4; The Michigan Election Law; MCL 168.765a(4); MCL 168.814; Comparing Gracey v Grosse Pointe Farms Clerk; MCL 168.745; MCL 168.823(3); Mandamus; Southfield Educ Ass’n v Board of Educ of Southfield Pub Schs

The court held that the trial court abused its discretion in not granting plaintiff-mayoral candidate a writ of mandamus and ordering defendant-county “Board of Canvassers to have the 37 ballots” at issue subjected to MCL 168.745’s challenged voter procedures as required by Gracey. The City Clerk discovered 37 ballots that were overlooked and not counted. She “later learned that several individuals (none of whom were authorized election staff) had entered her office while the ballots were stored there.” Thus, she told “the Board that she could no longer vouch for the chain of custody and had to rescind her previous statement that only election officials had access to the Clerk’s office.” The Board subsequently “declined to tabulate the 37 ballots.” A recount showed that plaintiff’s opponent won by 11 votes. The court noted that, pursuant to Gracey, evidence showing “that the ballots were stored in an unsecured room overnight in violation of the procedures of the Michigan Election Law did not necessarily invalidate those ballots, ‘but merely subjected them to the challenged voter procedures of § 745.’” Given the mandates “in Const 1963, art 2, § 4(1) and MCL 168.814, in light of” other constitutional rights, the Michigan Election Law, and the relevant case law, the court held “that the statutory mandate requiring the canvassing board to determine whether a ballot is ineligible under the law requires more than simply receiving testimony from the clerk indicating that several individuals who were not election officials entered the room where the ballots were stored. While there may be circumstances in which the law provides no remedy as it pertains to irregularity in an election,” this case did “not present such a circumstance because the Michigan Election Law provides a process for these votes to be deemed to be challenged, marked, and processed pursuant to MCL 168.745.” As to the requirements for mandamus, the court found “that plaintiff and the 37 voters who cast their ballots had a clear legal right to have them appropriately considered under the Michigan Election Law and defendant had a clear legal duty to perform the acts required by that law. The act of so marking the ballots as challenged pursuant to Gracey is ministerial and does not involve discretion or judgment. Finally, no other legal or equitable remedy exists that might achieve the same result.” Reversed and remanded.