Gongwer News Service
Attorneys for the Michigan Republican Party and the Republican National Committee told the Michigan Supreme Court last Thursday that they had standing to sue members of the Flint Board of Election Commissioners for for failing to appoint enough Republican election inspectors.
The plaintiffs in MIGOP v. Donahue (MSC Docket No. 166973) were before the high court to challenge a 2-1 Court of Appeals ruling that held the two Republican organizations lacked standing. The appeals court affirmed the Genesee Circuit Court's grant of summary disposition to the defendants, Flint City Clerk Davina Donahue, former Flint City Attorney William Kim and Flint City Assessor Stacie Kaake. All three are members of the city's Board of Election Commissioners.
MIGOP and the RNC contend Flint officials violated election law because it did not appoint "as nearly as possible" the same amount of election inspectors from each major party in the 2022 primary and general elections.
Before the Supreme Court last Thursday arguing for the MIGOP and the RNC was attorney Robert Avers, who said the Supreme Court's 2010 ruling in Lansing Schools Education Association v. Lansing Board of Education establishes a standing right for the Republican plaintiffs in Donahue.
Avers said the circuit court and the Court of Appeals misapplied Lansing Schools because, although there is no clear cause of action for the parties under election law, the three prongs of the precedential case give them the standing the parties were seeking.
In terms of relief if the high court agreed, Avers said the majority in the Court of Appeals decision found the case was moot, but the issues presented in the case were capable of being repeated without some guardrails, and could evade judicial review. That said, there was no clear available relief for the incident that occurred in 2022, he added.
Avers was asked if, per the appellate court's ruling, a local party chair or county chair could bring a lawsuit and have standing, but he disputed that position.
"The definition of major political party under Michigan law doesn't say the 527 Committee that's housed here in Michigan. It's the Republican Party," Avers said. "There has to be someone to bring the lawsuit, right? So, oftentimes the two are coupled, and I think you often see the same on the other side of the aisle, as well.
Justice Elizabeth Welch asked if there was a difference between state parties and national parties for the purposes of a standing analysis, but Avers said he didn't think the delineation existed.
"I think the easy one would be the injury. The RNC and the Michigan Republican Party both work together to recruit workers," Avers said. "They put their time and expense into that effort. And unfortunately, those efforts fell by the wayside. They were both harmed in that regard. That's a harm that's different than one experienced by the citizenry at large."
Avers also raised the different interests of the state party and the county parties, and that's where the standing issue also gets tricky with county chairs bringing similar lawsuits.
"The state parties have a statewide interest in administering our elections. There are 5,000 precincts across the state. Every single one of those precincts has to have an election worker, an election inspector, from both the Republican Party and the (Democratic) Party at all times, from the time the poll opens until the time the poll closes," Avers said. "All day, they have to be there to close and do the precinct canvas, and so that's a fairly large undertaking at the end of the day. I just don't see how the county chair has an interest. It would seem to me that their interest in that process, since they don't have a role. … The county chair is a step removed from the role of actually administering the election."
The Legislature, Avers said, gave those county chairs the right to challenge the qualifications of an election inspector and to challenge whether there was a valid declaration of partisan on an application to be an inspector.
In response to a question from Justice Megan Cavanagh on a limiting principle the court might have to articulate in its holding if it agreed with the MIGOP and RNC, Avers said he didn't quite know of one to offer, but said that this was a reversible error form the Court of Appeals.
Justice Brian Zahra asked if such a ruling came from the bench, would the end game be to just establish standing and wait for the next election to implement that holding, or did the bench need to remand the case or order the lower courts to take a specific action.
Avers said he didn't believe so, but noted another piece of caselaw, White v. Highland Park, contained an in dicta portion of the Court of Appeals ruling that indicated county chairs have the exclusive authority in matters like Donahue. Avers said the high court might need to reverse that last paragraph. In dicta refers to a judge's statement or opinion that is not necessarily a key or binding part of court's holding, but is considered persuasive in certain circumstances.
Zahra asked if just agreeing that the MIGOP and RNC have standing did the trick. Avers said he believed it did, but wanted to note the in dicta statement in White could sow confusion.
Chris Trebilcock, representing the Flint defendants, argued that the Republicans did not have a claim nor standing under statute, and the only way for them to gain standing is if the high court in Donahue reads into election law a cause of action by decree.
"Caring a lot about an issue or being passionate about the results in the application of a statutory scheme does not, in and of itself, create a legal right," Trebilcock said. "It does not create a special injury, or does not demonstrate a substantial (right), if any, under Michigan law. In this case, appellants concede that the statute at issue in Michigan Election Law does not create a legal right."
Trebilcock also questioned arguments from Avers about interest and not being able to rely on county chairs to protect the state party's or the national party's interest in matters regarding election inspectors.
"I think the plain language and the statutory scheme is clear that it's exclusive to the county chair – the county chairs of their own party – which apparently they don't trust the county chairs of their own party, which amazes me," Trebilcock said. "The plaintiffs claim stated most favorably is that they have that implied right or substantial interest, however, lack of parity, and remember, it's not equal. What they are asking this court to determine is that parity means equal, even though and ignore and read out of the statute the qualifying language 'as near as possible.' As near as possible means, under that circumstance."
Zahra asked Trebilcock if, under his interpretation, anyone had to the right to challenge the lack of partisan parity of election inspectors, or did they just need to accept that this was the best a given precinct could do and that in and of itself amounted to parity.
Trebilcock said the Legislature has said the election commissions and clerks have an obligation to appoint an equal as nearly possible number of election inspectors from both parties.
"They have discretion, though, within how they appoint them. They have discretion based on what's on the application," Trebilcock said. "They have discretion on who shows up and who goes through the training. There is discretion that is built in there by the term 'as near as possible.'"
Full access to public notices, articles, columns, archives, statistics, calendar and more
Three-County & Full Pass also available
