By: Daniel A. Gwinn, Esq. & Laura Bradshaw Tucker, Esq.

 As rumors of electoral hacking abounded, Green Party Presidential candidate Jill Stein filed a request for a recount of the vote in Michigan – a state in which Donald Trump defeated Hillary Clinton by a margin of just over 10,000 votes. Stein’s request, filed in compliance with existing state law, turned into a debacle as partisan state officials objected. After a labyrinth of legal decisions, a state court halted the process. But the curtailed recount revealed unanticipated issues – voting irregularities in Democratic Detroit. Daniel A. Gwinn and Laura Bradshaw Tucker of GWINN TAURIAINEN PLLC analyze the issues at the heart of Stein’s ill-fated endeavor, an effort Stein claimed she initiated on behalf of the citizens of Michigan.

Issue: What does it mean to be “aggrieved”?

The question doesn’t seem difficult. But to a panel of Michigan’s Court of Appeals and to five of the state’s Supreme Court justices, the process of defining one word turned conservative judges into judicial activists. The decisions of those panels narrowed the availability of a vote recount under Michigan law and provide a possible preview of the attenuated reasoning that may be used in the future, as conservatives set out to reverse now-established precedent and narrow other civil rights under existing laws.

The context of the courts’ December 6 and December 9 decisions – a request for a recount of all of Michigan’s votes in the 2016 presidential race by Green Candidate Jill Stein – presented a hard case: A recount would be costly (Stein would only bear part of the cost), Stein had failed to point to any specific acts of fraud or mistake in support of her request, and there was no chance at all that Stein’s last-place-by-a-mile finish in the election would change. There was also the remote possibility that a recount might add sufficiently to the vote total received by Democrat Hillary Clinton — who lost the presidential race in Michigan by a narrow margin of roughly 10,700 votes – to cast doubt on the legitimacy of the victory of President-Elect Donald Trump. The judges on the Court of Appeals panel and the majority of the justices on the Supreme Court – Republicans all – denied Stein the recount, stating she did not have standing to challenge the vote because she was not “aggrieved.”

To reach this result, conservative judges on both appellate courts affirmed the idea that the court’s role in interpreting a statute is to “ascertain the legislative intent that may reasonably be inferred from the words in a statute,” and give effect to “every word and phrase to avoid an interpretation that would render any part of the statute surplusage or nugatory [unnecessary].” After announcing this principle, the judges, in an about-face, devised an interpretation that contradicted it.

The Michigan law under which Stein filed her petition for a recount, Michigan Complied Laws, 168.879(b) states that a candidate “voted for at a primary or election for an office” may petition for a recount if

“[T]he petition alleges that the candidate is aggrieved on account of fraud or mistake in the canvass of the votes by the inspectors of election or the returns made by the inspectors, or by a board of county canvassers or the board of state canvassers. The petition shall contain specific allegations of wrongdoing only if evidence of that wrongdoing is available to the petitioner. If evidence of wrongdoing is not available, the petitioner is only required to allege fraud or a mistake in the petition without further specification.”

The Court of Appeals panel, composed of justices Peter O’Connell, Jane Markey and Christopher Murray, avowed that the court’s primary goal is to “ascertain the intent of the Legislature” and that where the statute’s language “is clear and unambiguous,” the court may not engage in judicial construction.

The panel found the word “aggrieved” somewhat obscure. It turned to three different dictionaries to come up with a definition, and then relied on just one part of a definition that appeared only in the 1910 edition of Black’s Law Dictionary, in which the word was defined as “having suffered loss or injury; damnified; injured.” Based on this, the panel decided the statute requires that the candidate allege “a loss or injury that resulted from fraud or mistake in the canvassing of votes,” and then took this a step further: In the context of an election, the court said, candidates suffer “a loss or injury” when they lose an election “but for errors in the counting of votes.” The court concluded that to be “aggrieved” a candidate must be able to allege “a good faith belief that but for mistake or fraud, the candidate would have had a reasonable chance of winning the election.”

In three short paragraphs, the Court of Appeals engaged in judicial construction, disregarding the plain language of the statute and creating requirements for a vote recount that appear nowhere in the law. Under the Court’s opinion, a candidate asking for a recount must now be able to show (1) he or she had a chance of winning the election and (2) but for the errors in the vote count would have won. The opinion renders another section of Michigan’s elections laws, which requires a recount anytime there are just 2,000 or fewer votes separating candidates in a presidential election, unnecessary, and also completely disregards the language of the statute itself, which only requires a petitioner to “allege fraud or a mistake … without further specification.”

The Supreme Court upheld the Court of Appeals decision, although it disagreed with the requirements the lower court read into the statute, disapproval the Court relegated to a footnote, noting an accurate vote count might be important to a losing candidate with no chance of winning. Under federal law, for example, a party must get 5% of the vote in a presidential election in order to participate in the primary elections.

While again tipping its hat to the virtues of strict construction, the Supreme Court went beyond the language of the statute itself to determine its meaning, finding additional “textual clues” in other sections of the election laws (not necessarily enacted at the same time) and to slight changes to the wording of the statute over the past several decades.

Using this approach, the Supreme Court stated the words “aggrieved on account of fraud of mistake” create a two-part requirement: a candidate requesting a recount must allege “that fraud or mistake exists” and “the alleged fraud or mistake caused the candidate to be aggrieved.” Although the clear language of the statute being construed does not require any degree of specificity in the fraud or mistake claimed, the Court decided that the same was not true for the second part of its new reading, that the fraud or mistake caused the candidate to be aggrieved. Claiming that it was being faithful to “the actual language of the statute,” the Court found Stein lacked standing because she had not met this second test – she did not say how she had been harmed, or how her legal rights had been infringed by any errors in the vote.

Under this ruling, candidates can only request a recount – even if there is clear evidence of egregious fraud and outrageous mistake — if they can state how they had been injured by the fraud and mistake. It places future candidates in a Catch-22 situation. Since they may not know (absent a recount) if they have been harmed by the errors, they cannot ask for a recount.

Where the Court of Appeals and the Supreme Court became activists, constructing a new recount law with more stringent requirements (while pretending to do no more than follow the language of the statute itself), the less conservative justices on the Supreme Court became strict constructionists, adhering to the language of the statute itself.

Justice Bridget McCormack, in dissent, questioned the Supreme Court’s conversion of one phrase into two separate requirements. It was clear to McCormack, and to Justice Richard Bernstein who joined her in dissent, that a candidate’s “aggrieved” status is connected to the “fraud or mistake” component. The law requires only that a candidate “allege” he or she is aggrieved, wrote McCormack, “not that she or he show, establish, or prove that the candidate is aggrieved.” McCormack wanted to give Stein “expedited oral argument” a chance to argue her case.

Bernstein argued the Court of Appeals opinion was flat-out wrong and should be reversed, and the recount allowed to continue. The Court’s job, he said, is to “discern the intent of the Legislature” evidence of which is found in the statutory language. The Court of Appeals had failed in this respect:

“Nowhere in the statute does the Legislature indicate that: (1) the candidate must have a good faith belief; (2) “but for” causation is required; and (3) the candidate would have had a “reasonable” chance of winning the election.”

As a new administration takes charge in Washington, with the power to appoint new judges, look for this role reversal to continue. Liberal justices will argue for the power of precedent, and a strict reading of statutes that expand rights, while conservatives will increasingly question precedent, while claiming to follow it, and will narrow the scope of statutes as possible.

The Michigan vote recount lasted just three days. The effort was not wasted: Numerous errors in the way votes are gathered and processed were revealed, resulting in a planned audit of the process in Detroit.

As for Stein, she was to receive a refund of some of the $970,000 she paid to get the recount going, but will probably spend that money on the Wisconsin recount, the entire cost of which she bore. That effort failed to produce evidence of fraud, or to make any significant impact on the vote count.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan.

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile