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June 21, 2016

COA: Voters have a legal right to enforce state election law requirements

Michigan election law requires a candidate to file an affidavit of identity containing several pieces of information, including the precinct number where the candidate is registered. Because Michigan election law prohibits an officer from certifying a candidate who does not comply with the affidavit of identity requirements, an elector may vindicate the public’s right under this statute by requiring strict adherence to these statutory duties, the Court of Appeals held in Berry v. Garrett, No. 333225.
 
Carl Berry is a registered voter in Plymouth Township.  Donald F. Schnettler and Kurt L. Heise sought the positions of township trustee and township supervisor, respectively; however, in their affidavits of identity, neither Schnettler nor Heise provided a precinct number as required by MCL 168.558.  Berry filed a writ of mandamus alleging that the defendants, the township clerk and election commissioner, failed to comply with the requirements set forth in MCL 168.558 by placing Schnettler and Heise’s names on the ballot.  The trial court denied Berry’s writ of mandamus because Berry purportedly failed to establish that he had a clear legal right to the performance of these statutory duties. 
 
The Court of Appeals held that based on the plain language of MCL 168.558, the Wayne County defendants had a legal duty not to certify a candidate that had failed to comply with the affidavit of identity requirements.  Additionally, the court determined that Berry had a clear legal right to performance of these statutory duties.  In so holding, the Court of Appeals relied on Martin v Secretary of State, 482 Mich 956 (2008).  Though the Court of Appeals would normally remand such a case to the trial court, given the exigencies of the election that would render the case moot, the court used its power under MCR 7.216(A)(7) to render a decision on the merits.
 
Disclaimer: Warner Norcross & Judd represented the prevailing party in this appeal. 

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