Bill Text: MI SB0590 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Elections: other; contesting post-certification presidential election results; provide for. Amends sec. 13 of 1954 PA 116 (MCL 168.13) & adds sec. 845a. TIE BAR WITH: SB 0529'23, SB 0591'23
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2023-12-29 - Assigned Pa 0255'23 [SB0590 Detail]
Download: Michigan-2023-SB0590-Introduced.html
SENATE BILL NO. 590
A bill to amend 1954 PA 116, entitled
"Michigan election law,"
by amending section 13 (MCL 168.13) and by adding chapter XXXIA.
the people of the state of michigan enact:
Sec. 13. (1) Notwithstanding any other provision of the law to the contrary, and except as otherwise provided under subsection (2), anything required by this act to be done by a day certain, except the final day for applying for an absentee ballot, if that day falls on a Saturday, Sunday, or legal holiday, may be done within the same time limits on the next secular day.
(2) This section does not apply to either of the following:
(a) The final day for applying for an absent voter ballot.
(b) Any deadline provided for under chapter XXXIA.
CHAPTER XXXIA
CONTESTING ELECTIONS
Sec. 850. As used in this chapter:
(a) "Defendant" means the individual who is certified as the winner of an election that is contested under this chapter.
(b) "Election materials" means voter registration applications, absent voter ballot applications, applications to vote as described under section 523, paper poll books, any list that includes electors who submit an absent voter ballot, and ballots.
(c) "Plaintiff" means an individual who files an action contesting the certification of an election under this chapter.
(d) "Presidential election" means the election of electors of President and Vice President of the United States as provided under section 43.
Sec. 850a. (1) If a candidate for an office wishes to contest the certification of that election, that candidate shall contest the election as provided under this chapter. In addition, the governor, attorney general, and secretary of state are authorized to contest the certification of an election as provided under this chapter. The procedure provided under this chapter is the only means by which an individual may seek judicial relief from the certification of an election.
(2) In an action contesting the certification of an election under this chapter, the governor, attorney general, secretary of state, and any candidate listed on the ballot for the office at issue may intervene.
(3) Any deadline provided under this chapter applies regardless of whether that deadline falls on a Saturday, Sunday, or holiday.
(4) An action contesting the certification of an election under this chapter shall not delay or otherwise impact any of the following:
(a) The authority or responsibility of the board of state canvassers or a board of county canvassers to certify an election as required under this act.
(b) The governor's authority or responsibility to issue a certificate of ascertainment as required under section 46.
(c) The authority or responsibility of the board of state canvassers or a board of county canvassers to perform a recount as provided under chapter XXXIII.
(5) An action contesting the certification of an election under this chapter shall not be considered to encompass an election audit under this act.
Sec. 850b. A plaintiff shall contest the certification of an election on only 1 or both of the following grounds:
(a) The defendant did not receive the largest number of votes eligible to be counted in that election.
(b) Fraud or error occurred in the canvass or returns of the votes cast at the election, and absent that fraud or error, the defendant would not have received the largest number of votes eligible to be counted in that election.
Sec. 850c. (1) An action contesting the certification of an election for an office described in section 841(1) must be filed in the court of claims. If an action contesting the certification of an election for an office described in section 841(1) is filed in a court other than the court of claims, that court must immediately transfer that action to the court of claims.
(2) An action contesting the certification of an election for an office not described in section 841(1) must be filed in the circuit court of the county in which the office at issue is located. If an action contesting the certification of an election for an office not described in section 841(1) is filed in a court other than the proper circuit court, that court must immediately transfer that action to the circuit court of the county in which the office is located.
Sec. 850d. (1) Except as otherwise provided under this subsection, an action contesting the certification of an election under section 850c(1) or (2) must be filed with the appropriate court, and served on the defendant and any other candidate listed on the ballot for that office, no earlier than the certification date of the election being contested and no later than 5 days after the certification of that election is complete. An action contesting the certification of a presidential election must be filed with the court of claims, and served on the defendant and any other candidate listed on the ballot for the presidential election, no later than 2 days after the certification of that election by the board of state canvassers is complete. Service of the initial pleading in an action contesting the certification of an election under this chapter must satisfy MCR 2.105(A).
(2) If an action is not timely filed or served as provided under this section, the court shall dismiss that action with prejudice.
(3) A plaintiff filing an action under this chapter must state in the plaintiff's initial pleading the grounds under section 850b on which the contest is made and allege supporting facts with specificity. If the grounds for contesting the certification of the election are brought under section 850b(a), the plaintiff must allege facts that, if true, would demonstrate by clear and convincing evidence that the defendant did not receive the highest number of votes eligible to be counted in that election. If the grounds for contesting the certification of the election are brought under section 850b(b), the plaintiff must allege facts that, if true, would demonstrate by clear and convincing evidence that fraud or error occurred in the canvass or returns of the votes cast at the election, and absent that fraud or error, the defendant would not have received the largest number of votes eligible to be counted in that election.
(4) A plaintiff must attach to the initial pleading filed in an action under this chapter an affidavit that sets forth specific facts known to the affiant that support the truth of the facts alleged in the action. An action is not considered filed or served if the plaintiff does not attach, file, and serve the affidavit required under this subsection.
(5) In an action contesting the certification of an election under this chapter, a plaintiff may not seek, and the court shall not grant, any preliminary injunctive relief.
Sec. 850e. (1) Except as otherwise provided under this subsection, in an action contesting the certification of an election under this chapter, the defendant shall file an answer to the initial pleading no later than 5 days after being served with the pleading. In an action contesting the certification of a presidential election under this chapter, the defendant shall file an answer to the initial pleading no later than 3 days after being served with the pleading. A defendant's answer to an action contesting the certification of an election under this chapter must comply with MCR 2.111(C).
(2) If a defendant fails to timely file an answer as required under this section, the court shall proceed ex parte to a trial under section 850g. The court shall not enter a default judgment based on the defendant's failure to file an answer.
(3) Except as otherwise provided under this subsection, in addition to filing an answer, a defendant may file a motion to dismiss the action no later than 5 days after service of the initial pleading on the defendant. In an action contesting the certification of a presidential election, a defendant may file a motion to dismiss the action no later than 3 days after service of the initial pleading on the defendant. A motion to dismiss filed under this subsection may be based on any of the following grounds:
(a) The action was not filed timely or was improperly filed or served.
(b) The facts alleged in the initial pleading do not satisfy the requirements under section 850d(3).
(c) The initial pleading contesting the certification of an election under this chapter does not contain the affidavit required under section 850d(4).
(4) Except as otherwise provided under this subsection, if a defendant files a motion to dismiss, the plaintiff shall file a response no later than 5 days after the motion to dismiss is filed. In an action contesting the certification of a presidential election, if a defendant files a motion to dismiss, the plaintiff shall file a response no later than 2 days after the motion to dismiss is filed.
(5) The court may sua sponte dismiss an action on any of the grounds listed in subsection (3).
(6) Except as otherwise provided under this subsection, the court may alter any filing deadline in this chapter for good cause. In an action contesting the certification of a presidential election, the court shall not alter any filing deadline set forth in this chapter.
Sec. 850f. (1) Any party to an action contesting the certification of an election under this chapter may request leave from the court to inspect election materials for the purpose of preparing for trial. The court shall not grant leave to inspect election materials under this section unless the inspection of those election materials is reasonably related to valid claims and is proportional to the needs of the action. An order granting leave under this section must include a protective order that provides for both of the following:
(a) Anything discovered during the party's inspection of the election materials must not be used for any purpose other than the election contest at issue.
(b) A party shall not take custody of any election materials outside of the presence of the court, all other parties, and any election official required by federal or state law to maintain custody of the election materials.
(2) A party is not permitted to inspect any electronic voting system, electronic poll book, or any other materials that would jeopardize the secretary of state's or any clerk's ability to protect the security of the election at issue, any future election, or the qualified voter file.
(3) The inspection of election materials under this section is the only form of discovery that the parties to an action contesting the certification of an election under this chapter may conduct, and the parties to an action under this chapter are prohibited from engaging in private discovery.
Sec. 850g. (1) If a motion to dismiss an action contesting the certification of an election is not filed, or if a court denies a motion to dismiss an action contesting the certification of an election, the court shall, except as otherwise provided under this subsection, hold a trial of that action as soon as practicable. In an action contesting the certification of a presidential election, the court shall hold a trial of that action as soon as practicable, but no later than 7 days after the action is filed.
(2) If the action is brought based on the grounds under section 850b(a), the plaintiff must prove by clear and convincing evidence that the defendant did not receive the highest number of votes eligible to be counted in that election. If the action is brought based on the grounds under section 850b(b), the plaintiff must prove by clear and convincing evidence that fraud or error occurred in the canvass or returns of votes cast at the election, and absent that fraud or error, the defendant would not have received the highest number of votes eligible to be counted in that election.
(3) Except as otherwise provided under this subsection, after a trial of an action under this chapter, the court shall issue a written decision and final judgment as soon as practicable. Except as otherwise provided under this subsection, in an action contesting the certification of a presidential election, the court shall issue a written decision and final judgment as soon as practicable, but no later than 10 days after the action is filed. If a court issues an oral decision with an indication that a written decision will follow that oral decision, the court may enter final judgment upon issuing the oral decision.
(4) In an action contesting the certification of an election under this chapter, a court shall not issue an order that prevents any of the following:
(a) The board of state canvassers or a board of county canvassers from certifying the results of an election as required under this act.
(b) The governor from issuing a certificate of ascertainment as required under section 46.
(c) The board of state canvassers or a board of county canvassers from performing a recount as provided under chapter XXXIII.
(5) If a court issues a final judgment granting any form of relief to a plaintiff, that judgment is stayed until the expiration of time allowed for any party to file an appeal. If a court issues a final judgment granting any form of relief to a plaintiff and an appeal from that final judgment is filed, the judgment is stayed until the conclusion of all appellate proceedings. An appellate court may alter the stay imposed under this subsection for good cause.
(6) If an appeal is filed from a judgment in an action contesting the certification of a presidential election, the appeal must be fully concluded no later than the day before the date the electors for President and Vice President convene as provided under section 47.
(7) Unless the plaintiff prevails in an action filed under this chapter, the defendant is entitled to actual costs and attorney fees from the plaintiff. Unless the plaintiff prevails in an action filed under this chapter, the plaintiff must reimburse the reasonable costs incurred by any public office, including, but not limited to, the secretary of state and any county, city, or township office, for providing access to any election materials pursuant to a court-ordered inspection under section 850f. A plaintiff who prevails in an action filed under this chapter may, if a court finds the defendant engaged in fraud, recover actual costs and attorney fees from the defendant.
Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 102nd Legislature are enacted into law:
(a) Senate Bill No. 529.
(b) Senate Bill No. 591.
