Opinion
SC 164463 COA 357838
12-09-2022
WILLIAM BAILEY, Plaintiff-Appellant, v. ANTRIM COUNTY, Defendant-Appellee, and SECRETARY OF STATE, Intervening Defendant-Appellee.
Elizabeth T. Clement, Chief Justice, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Justices.
Antrim CC: 2020-009238-CZ
ORDER
On order of the Court, the application for leave to appeal the April 21, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J. (concurring).
I concur in the Court's denial order because I believe the Court of Appeals properly rejected plaintiff's argument that he has a right to conduct an independent audit of election results under Const 1963, art 2, § 4(1)(h). That constitutional provision, which was added in 2018, states that "[e]very citizen of the United States who is an elector qualified to vote in Michigan shall have . . . [t]he right to have the results of statewide elections audited, in such a manner as prescribed by law, to ensure the accuracy and integrity of elections." The precise contours of this new audit right are unclear and have never been addressed by this Court. As I have explained in the past, the language of this provision could ensure an audit that facilitates timely challenges to election results or allows for assessments of election procedures that lead to future improvement. Costantino v Detroit, 506 Mich; 950 N.W.2d 707, 711-712 (2020) (Viviano, J., dissenting). The proper interpretation of the audit right represents a significant question that this Court should address. See Johnson v Secretary of State, 506 Mich. 975, 984-985 (2020) (Viviano, J., dissenting); Costantino, 506 Mich. at; 950 N.W.2d at 713 (Viviano, J., dissenting). The need for such guidance is especially important because our laws regulating challenges to election results are unclear. See Johnson, 506 Mich. at 987 (Viviano, J., dissenting) (noting the "rampant confusion in our state concerning the proper mechanism for contesting elections in general, and presidential elections in particular, on the basis of fraud"). But whatever Const 1963, art 2, § 4(1)(h) means, it surely cannot be that each qualified elector can undertake his or her own separate audit of an election. The present case therefore does not offer the opportunity to add any clarity on this important topic. Accordingly, I concur.