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March 27, 2026 Get Citation Alerts Download PDF Add Note

Muhith Mahmood v. City of Hamtramck

Michigan Court of Appeals

• Citations: None known
• Docket Number: 378814

• Precedential Status: Non-Precedential

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (8.8K)

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Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

                      STATE OF MICHIGAN

                       COURT OF APPEALS

MUHITH MAHMOOD, UNPUBLISHED
March 27, 2026
Plaintiff-Appellant, 8:34 AM

V No. 378814
Wayne Circuit Court
CITY OF HAMTRAMCK and WAYNE COUNTY LC No. 25-018688-CZ
BOARD OF CANVASSERS,

           Defendants-Appellees,

and

ADAM ALHARBI,

           Intervening Defendant-Appellee.

Before: BORRELLO, P.J., and O’BRIEN and WALLACE, JJ.

PER CURIAM.

    Plaintiff, Muhith Mahmood, appeals as of right the trial court’s order denying his request

for a writ of mandamus or, alternatively, injunctive relief. Plaintiff sought to compel the
governmental defendants to count 37 absentee ballots. We find that the trial court erred by
declining to grant a writ of mandamus. As a result, we reverse the trial court’s order and remand
for further proceedings consistent with this opinion.

                                   I. BACKGROUND

   The underlying facts are not disputed and are described by the trial court as follows:

           On November 4, 2025 the City of Hamtramck held an election for mayor
   and 3 City Council positions. Voters could vote by absentee ballot or in-person on
   election day. The candidates for mayor were Adam Alharbi and Muhith Mahmood.
   According to testimony of the Hamtramck City Clerk before the Wayne County
   Board of Canvassers, on November 4, the Hamtramck City Clerk delivered 990
   sealed return envelopes containing absentee ballots to the 5 Absentee Voter

                                           -1-
   Counting Boards (AVCBs) (1 AVCB for each precinct), so that the AVCBs could
   open the envelopes and tabulate the ballots. On the evening of November 4, the
   AVCBs returned of [sic] the 990 return envelopes to the Clerk’s office for secure
   storage as required by law. The Clerk, believing that all the envelopes were empty,
   stored them in her office. In the unofficial results for Mayor reported by the Clerk
   on Election Night, Alharbi received 2,009 votes and Mahmood received 1,998
   votes.

           On the day after the election, November 5, the Clerk, as required by law,
   sent all the election materials to the Wayne County Board of Canvassers for
   canvassing and declaration of the official results. On that same date, the Clerk also
   discovered that there was a 37-ballot discrepancy between the number of return
   envelopes delivered to the AVCBs and the number of ballots the AVCBs reported
   as tabulated.

    The Clerk discovered that the cause of the discrepancy was that 37 ballots got overlooked

and were never counted. Although the envelopes for the 37 ballots had been opened, the ballots
were not removed and consequently not tabulated. Those envelopes were then comingled with
envelopes of ballots that were properly tabulated. The Clerk placed the 37 ballots in a secure
container, sealed it, and delivered it to the Board of Canvassers. The Clerk informed the Board of
Canvassers that only certain election staff members had access to the ballots while they were stored
in her office.

    However, the City Clerk later learned that several individuals (none of whom were

authorized election staff) had entered her office while the ballots were stored there. With this new
information, the Clerk informed the Board that she could no longer vouch for the chain of custody
and had to rescind her previous statement that only election officials had access to the Clerk’s
office. After hearing testimony from the Clerk, the Board declined to tabulate the 37 ballots.
Plaintiff’s challenger, Adam Alharbi, was certified as the winner of the election on November 18,
2025. A subsequent recount indicated that Alharbi won by 11 votes. On November 24, 2025,
following certification of the election results and the recount, plaintiff filed a verified complaint
for mandamus, declaratory judgment, and injunctive relief and a motion for writ of mandamus or,
alternatively, preliminary injunction. Alharbi’s subsequent motion to intervene as a party
defendant was granted.

    The trial court denied plaintiff’s motion. The court focused its analysis on plaintiff’s

request for a writ of mandamus and the requirement of a clear legal duty. The court rejected
plaintiff’s argument that, with MCL 168.765a(4) providing a clear legal duty to tabulate the 37
votes, mandamus was an appropriate remedy. The court explained that this statutory provision
allows for the tabulation of absentee ballots but only in accordance with applicable laws. And
because the City Clerk could not confirm the integrity of the 37 ballots, MCL 168.823 afforded
the Board of Canvassers with the discretion to decline to tabulate the ballots, which was fatal to
the claim for a writ of mandamus.

    The court also rejected plaintiff’s argument that the 37 votes should be recast. The court

noted that plaintiff failed to cite any authority from Michigan that would allow for such a remedy.
The court also disagreed with plaintiff’s position that the voters’ constitutional rights to vote were

                                             -2-

violated. The trial court recognized that statutory requirements are to be given full effect, even if
it results in the disfranchisement of voters.

   This appeal followed.1

                              II. STANDARD OF REVIEW

    A trial court’s grant or denial of a writ of mandamus is reviewed for an abuse of discretion.

Sakorafos v Lyon Twp, 349 Mich App 176, 185; 27 NW3d 329 (2023). “A court abuses its
discretion when it selects an outcome that falls outside the range of reasonable and principled
outcomes.” Wolfenbarger v Wright, 336 Mich App 1, 14; 969 NW2d 518 (2021). When a trial
court makes an error of law, it also necessarily commits an abuse of its discretion. Danhoff v
Fahim, 513 Mich 427, 442; 15 NW3d 262 (2024). However, “[w]hether a defendant has a clear
legal duty to act, which is required to warrant mandamus, is a question of law that this Court
reviews de novo.” Sakorafos, 349 Mich App at 185.

                                    III. MANDAMUS

           A writ of mandamus is an extraordinary remedy that will only be issued if
   (1) the party seeking the writ “has a clear legal right to the performance of the duty
   sought to be compelled,” (2) the defendant has a clear legal duty to perform the act
   requested, (3) the act is ministerial, that is, it does not involve discretion or
   judgment, and (4) no other legal or equitable remedy exists that might achieve the
   same result. [Southfield Ed Ass’n v Bd of Ed of Southfield Pub Schs, 320 Mich App
   353, 378; 909 NW2d 1 (2017) (citation omitted).]

                                 A. CONST 1963, ART 2

   Article 2 of Michigan’s 1963 Constitution addresses elections in Michigan. In 2018, the

people of this state voted to amend the Constitution, which amendments included adding the
following language at Const 1963, art 2, § 4:

         (1) Every citizen of the United States who is an elector qualified to vote in
   Michigan shall have the following rights:

          (a) The right, once registered, to vote a secret ballot in all elections.
   [Promote the Vote v Secretary of State, 333 Mich App 93, 100-101; 958 NW2d 861
   (2020).]

In 2022, the above language of § 4(1)(a) was modified to read: “The fundamental right to vote,
including but not limited to the right, once registered, to vote a secret ballot in all elections.”
Additionally, the following language was added after that sentence: “No person shall . . . use any

1
After appealing as of right, plaintiff moved in the Supreme Court for a bypass. The Supreme
Court denied the request and ordered this Court to “expedite its consideration of this case.” In re
Disenfranchised Hamtramck Voters, ___ Mich ___ (January 15, 2026) (Docket No. 169465).

                                             -3-

means whatsoever, any of which has the intent or effect of denying, abridging, interfering with, or
unreasonably burdening the fundamental right to vote.” Const 1963, art 2, § 4(1)(a). While case
law prior to 2022 supports the assertion that Michigan’s higher courts have long recognized the
right to vote as a fundamental right,2 that fundamental right is now explicitly enshrined in Article
2 of Michigan’s 1963 Constitution.
Under Const 1963, art 2, § 4(1)(a), “Any Michigan citizen or citizens shall have standing
to bring an action for declaratory, injunctive, and/or monetary relief to enforce the rights created
by this part (a) of subsection (4)(1) on behalf of themselves.”

    The Michigan Constitution also clarifies that it is the ministerial, clerical, and

nondiscretionary duty of a board of canvassers to certify election results by including returns and
corrected returns from absent voter counting boards.3

                              B. MICHIGAN ELECTION LAW

  We now turn to the statutory authority relevant to this matter, MCL 168.1, et seq. (the

Michigan Election Law).

     As plaintiff argues, MCL 168.765a(4) mandates the counting of absentee ballots:

             In a city or township that uses absent voter counting boards under this
     section, the absent voter ballots must be counted in the manner provided in this
     section and, except as otherwise provided in section 764d, absent voter ballots must
     not be delivered to the polling places.

    The Legislature has made it clear that mistakes made by election officials must not result

in the rejection of a ballot cast by an eligible voter unless the ballot is otherwise ineligible:

             A ballot cast by an eligible elector must not be rejected or otherwise not
     counted in a canvass, recount, or court order altering the certification of a
     canvassing board on the grounds that an election official failed to comply with a
     directive set forth in this act unless that ballot is otherwise ineligible under this act
     or federal law. [MCL 168.814].

2
See, for example, Grano v Ortisi, 86 Mich App 482, 492; 272 NW2d 693 (1978), citing Carter
v Bullock, 405 US 134; 92 S Ct 849; 31 L Ed 2d 92 (1972).
3
Article 2, § 7(3) of Michigan’s 1963 Constitution provides:

             It shall be the ministerial, clerical, and nondiscretionary duty of a board of
     canvassers, and each individual member thereof, to certify election results based
     solely on (1) certified statements of votes from counties; or (2) in the case of boards
     of canvassers, statements of returns from the precincts and absent voter counting
     boards in the county and any corrected returns.

                                               -4-
    With these statutory provisions in mind, we note that the facts of the present case are

comparable to the facts of Gracey v Grosse Pointe Farms Clerk, 182 Mich App 193; 452 NW2d
471 (1989). In that decision, a judicial candidate’s wife, Irene Gracey, delivered absentee ballots
to the clerk’s office on behalf of up to a maximum of 17 voters, in violation of Michigan law.4
Gracey, 182 Mich App at 198. While the chain of custody of those 17 ballots was broken by
Gracey’s actions, there was no evidence indicating that she tampered with the ballots. As a result,
this Court held that

   [m]erely showing that the ballots were picked up and delivered by Mrs. Gracey in
   violation of § 759b and Step 5 of the instructions in § 764a did not, by virtue of
   § 764b(4), necessarily invalidate those ballots, but merely subjected them to the
   challenged voter procedures of § 745. [Id. at 203.]

The Gracey Court further held that “[a] timely cast absentee voter ballot is not to be invalidated
solely because the delivery to the clerk was not in compliance with § 764a or § 764b, although
such ballot shall be deemed to be challenged and shall be marked and processed as provided in
§ 745.” Id. at 209, citing MCL 768.764b(4).

    As noted in Gracey, the Michigan Election Law contains procedures for challenging a

ballot, which allow the ballot to be marked in such a manner that it can be identified in the event
of a contested election while simultaneously keeping the name of the voter confidential:

           Whenever at any election the ballot of any person who has been challenged
   as an unqualified voter and who has taken the oath provided by law in such case to
   be taken shall be received by the inspectors of election, said inspectors shall cause
   to be plainly endorsed on said ballot, with pencil, before depositing the same in the
   ballot box, the number corresponding to the number placed after such voter’s name
   on the poll lists without opening the same: Provided, That in case a ballot shall be
   so folded, defaced, printed or prepared that such number cannot be legibly and
   permanently written on the back thereof, said inspectors shall refuse to accept such
   ballot. [MCL 168.745.]

           To prevent the identification of said ballot, except as hereinafter provided
   for in case of a contested election, the inspectors of election shall cause to be
   securely attached to said ballot, with mucilage or other adhesive substance, a slip
   or piece of blank paper of the same color and appearance, as nearly as may be, as
   the paper of the ballot, in such manner as to cover and wholly conceal said
   endorsement but not to injure or deface the same; and if any inspector or other
   officer of an election shall afterward expose said endorsement or remove the said
   slip of paper covering the same, or attempt to identify the ballot of any voter, or

4
Gracey’s actions violated Michigan law because “she was not a ‘member of the immediate family
of the voter’ within the degrees of consanguinity or legal relationship stated in step 5(c) of the
instructions for absent voters set forth in § 764a of the Elections Law.” Gracey, 182 Mich App at
198.

                                            -5-
   suffer the same to be done by any other person, he shall, on conviction thereof, be
   deemed guilty of a misdemeanor. [MCL 168.746.]

           In case of a contested election, on the trial thereof before any court of
   competent jurisdiction, it shall be competent for either party to the cause to have
   produced in court the ballot boxes, ballots and poll books used at the election out
   of which the cause has arisen, and to introduce evidence proving or tending to prove
   that any person named on such poll lists was an unqualified voter at the election
   aforesaid, and that the ballot of such person was received. On such trial, the
   correspondence of the number endorsed on a ballot as herein provided with the
   number of the ballot placed opposite the name of any person on the poll lists shall
   be received as prima facie proof that such ballot was cast by such person: Provided,
   That the ballot of no person shall be inspected or identified under the provisions of
   this chapter unless such person shall consent thereto in writing, or unless such
   person has been convicted of falsely swearing in such ballot, or unless the fact that
   such person was an unqualified elector at the time of casting such ballot has been
   determined. [MCL 168.747.]

   Pursuant to Gracey, evidence demonstrating that the ballots were stored in an unsecured

room overnight in violation of the procedures of the Michigan Election Law did not necessarily
invalidate those ballots, “but merely subjected them to the challenged voter procedures of § 745.”
Gracey, 182 Mich App at 203.

    Returning to the present case, the trial court ultimately found that defendant had the

discretion to decline to count the 37 ballots pursuant to MCL 168.823(3), which states as follows:

           The board of county canvassers shall correct obvious mathematical errors
   in the tallies and returns. The board of county canvassers may, if necessary for a
   proper determination, summon the election inspectors before them, and require
   them to count any ballots that the election inspectors failed to count, to make correct
   returns in case, in the judgment of the board of county canvassers after examining
   the returns, poll lists, or tally sheets, the returns already made are incorrect or
   incomplete, and the board of county canvassers shall canvass the votes from the
   corrected returns. In the alternative to summoning the election inspectors before
   them, the board of county canvassers may designate staff members from the county
   clerk’s office to count any ballots that the election inspectors failed to count, to
   make correct returns in case, in the judgment of the board of county canvassers
   after examining the returns, poll lists, or tally sheets, the returns already made are
   incorrect or incomplete, and the board of county canvassers shall canvass the votes
   from the corrected returns. [MCL 168.823(3).]

    There is no dispute in this matter that the returns were incomplete. Amici curiae, American

Civil Liberties Union Fund of Michigan, Promote the Vote Fund, and the League of Women Voters
of Michigan Education Fund, argue that, pursuant to MCL 168.823(3), the Board of Canvassers
was required to take one of the two actions mandated therein. The first option was that the board
summon the election inspectors before them, require them to count any ballots that the election
inspectors failed to count, to make correct returns, and canvass the votes from the corrected returns.

                                             -6-

The alternative option was that the board designate staff members from the county clerk’s office
to count any ballots that the election inspectors failed to count, to make correct returns, and canvass
the votes from the corrected returns. MCL 168.823(3) states that the board of county canvasser
“may” take such actions in their “judgment,” which language typically denotes discretionary
conduct. See Wilcoxon v City of Detroit Election Comm, 301 Mich App 619, 631; 838 NW2d 183
(2013). However, amici essentially argue that, reading the statute as a whole, it is clear that the
discretion granted to the board is to choose one of the two options, i.e., it may choose the first
option or it may choose the alternative option.

     Plaintiff argues that MCL 168.823 must be read in concert with the Michigan Constitution,

the relevant case law, and the Michigan Election Law. We agree. Again, the Michigan
Constitution states that “[n]o person shall . . . use any means whatsoever, any of which has the
intent or effect of denying, abridging, interfering with, or unreasonably burdening the fundamental
right to vote.” Const 1963, art 2, § 4(1). Intervening defendant would have us ignore that provision
and determine that the people who entered the office in which the ballots were stored, who were
not elections officials, effectively denied 37 voters their fundamental right to vote.

    When considering the mandates contained in Const 1963, art 2, § 4(1) and MCL 168.814,

in light of the other constitutional rights described above, the Michigan Election Law, as well as
the relevant case law, we find that the statutory mandate requiring the canvassing board to
determine whether a ballot is ineligible under the law requires more than simply receiving
testimony from the clerk indicating that several individuals who were not election officials entered
the room where the ballots were stored. While there may be circumstances in which the law
provides no remedy as it pertains to irregularity in an election, see Hanlin v Saugatuck Twp, 299
Mich App 233, 243-244; 829 NW2d 335 (2013), the present case does not present such a
circumstance because the Michigan Election Law provides a process for these votes to be deemed
to be challenged, marked, and processed pursuant to MCL 168.745. Gracey, 182 Mich App at
209.

   Returning to Southfield Ed Ass’n, 320 Mich at 378, we find that plaintiff and the 37 voters

who cast their ballots had a clear legal right to have them appropriately considered under the
Michigan Election Law and defendant had a clear legal duty to perform the acts required by that
law. The act of so marking the ballots as challenged pursuant to Gracey is ministerial and does
not involve discretion or judgment. Finally, no other legal or equitable remedy exists that might
achieve the same result. Thus, the trial court abused its discretion by failing to grant the writ of
mandamus and failing to order the Board of Canvassers to have the 37 ballots subjected to the
challenged voter procedures of MCL 168.745 as required by Gracey.

                                             -7-
    Because we have determined that the trial court erred by failing to grant mandamus relief

for the reasons stated above, we need not address the other issues presented by plaintiff.

    Reversed and remanded for proceedings consistent with this opinion. We do not retain

jurisdiction.

                                                       /s/ Stephen L. Borrello
                                                       /s/ Randy J. Wallace

                                           -8-

Dissent

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

MUHITH MAHMOOD, UNPUBLISHED
March 27, 2026
Plaintiff-Appellant, 8:34 AM

V No. 378814
Wayne Circuit Court
CITY OF HAMTRAMCK and WAYNE COUNTY LC No. 25-018688-CZ
BOARD OF CANVASSERS,

Defendants-Appellees,

and

ADAM ALHARBI,

Intervening Defendant-Appellee.

Before: BORRELLO, P.J., and O’BRIEN and WALLACE, JJ.

O’BRIEN, J. (dissenting).

Plaintiff asked the trial court to issue a writ of mandamus “order[ing] the tabulation of the
37 ballots” that were not counted as described by the majority. The trial court denied this request,
concluding that the Wayne County Boad of Canvassers had discretion whether to tabulate the 37
ballots, making a writ of mandamus improper. The majority concludes that “the trial court abused
its discretion by failing to grant the writ of mandamus.” I disagree and therefore dissent.

A writ of mandamus is an extraordinary remedy, and the party seeking such a writ must
establish that

(1) the party seeking the writ “has a clear legal right to the performance of the duty
sought to be compelled,” (2) the defendant has a clear legal duty to perform the act
requested, (3) the act is ministerial, that is, it does not involve discretion or
judgment, and (4) no other legal or equitable remedy exists that might achieve the
same result. [Southfield Ed Ass’n v Bd of Ed of Southfield Pub Schs, 320 Mich App
353, 378; 909 NW2d 1 (2017) (citation omitted).]

-1-
Plaintiff is asking for a writ of mandamus ordering the Wayne County Board of Canvassers to
tabulate the 37 uncounted ballots, so plaintiff must establish that the board of county canvassers
had a clear legal duty to perform this act.

In plaintiff’s complaint, he relied on MCL 168.765a(4) to support the existence of this
duty.1 That subsection states, in pertinent part:

In a city or township that uses absent voter counting boards under this
section, the absent voter ballots must be counted in the manner provided in this
section and, except as otherwise provided in section 764d, absent voter ballots must
not be delivered to the polling places. [MCL 168.765a(4).]

The section of the Michigan Election Law, MCL 168.1, et seq., in which this subsection appears
addresses absent voter counting boards, and the above subsection imposes a duty on such boards,
not the board of county canvassers.

The majority relies heavily on MCL 168.814, which states:

A ballot cast by an eligible elector must not be rejected or otherwise not
counted in a canvass, recount, or court order altering the certification of a
canvassing board on the grounds that an election official failed to comply with a
directive set forth in this act unless that ballot is otherwise ineligible under this act
or federal law.

This section has never been cited by plaintiff or amicus who filed in support of plaintiff.
Regardless, the majority emphasizes the final portion of this provision, effectively reasoning that
a ballot must be counted in a canvass “unless that ballot is otherwise ineligible under this act.” I
do not believe this section is relevant, however, because it only applies if a ballot is not canvassed
“on the grounds that an election official failed to comply with a directive set forth in this act.”

It is true that the 37 uncounted ballots were not stored in compliance with MCL 168.810a—
titled, “Safeguarding of election materials”—but the problem with the 37 uncounted ballots is not
solely that they were stored in an unsecured location. The bigger issue is that the city clerk
confirmed that unauthorized individuals were in the clerk’s office and, while there, had access to
the unsecured ballots, so the clerk could no longer confirm the integrity of the ballots. In other
words, the ballots were not “merely” stored in an unsecured location in violation of MCL 168.810a,
but the clerk confirmed that unauthorized individuals had access to the unsecured ballots. This
confirmed unauthorized access to the 37 uncounted ballots provided a basis for not counting the
ballots beyond the fact that the city clerk failed to properly store them as required by the Michigan
Election Law.2

1
Plaintiff does not rely on this statute in his brief on appeal but cites it in his reply brief.
2
I do not find this Court’s opinion in Gracey v Grosse Pointe Farms Clerk, 182 Mich App 193;
452 NW2d 471 (1989), particularly helpful to resolving this case. The procedural history of that

-2-
This brings us to the basis for the trial court’s ruling—MCL 168.823. The court reasoned
that Subsection (3) of this statute provided the Board of Canvassers discretion to act how it did.
MCL 168.823(3) provides, in relevant part:

The board of county canvassers shall correct obvious mathematical errors
in the tallies and returns. The board of county canvassers may, if necessary for a
proper determination, summon the election inspectors before them, and require
them to count any ballots that the election inspectors failed to count, to make correct
returns in case, in the judgment of the board of county canvassers after examining
the returns, poll lists, or tally sheets, the returns already made are incorrect or
incomplete, and the board of county canvassers shall canvass the votes from the
corrected returns. In the alternative to summoning the election inspectors before
them, the board of county canvassers may designate staff members from the county
clerk’s office to count any ballots that the election inspectors failed to count, to
make correct returns in case, in the judgment of the board of county canvassers after
examining the returns, poll lists, or tally sheets, the returns already made are
incorrect or incomplete, and the board of county canvassers shall canvass the votes
from the corrected returns. [Emphasis added.]

This subsection provided a means by which the board of county canvassers could have tabulated
the 37 uncounted ballots. But, as the emphasized portions demonstrate, aside from correcting any
obvious mathematical errors, the procedures in MCL 168.823(3) are discretionary. See Wilcoxon
v City of Detroit Election Comm, 301 Mich App 619, 631; 838 NW2d 183 (2013) (explaining that
it is well-established that the use of the words “may” and “judgment” denote discretionary
conduct). It follows that the Wayne County Board of Canvassers had discretion to tabulate the 37
uncounted ballots “if necessary for a proper determination,” but the decision to do so was left to
“the judgment of the board of county canvassers.” MCL 168.823(3). A writ of mandamus cannot
lie if the act requested to be performed “involve[s] discretion or judgment,” Southfield Ed Ass’n,
320 Mich App at 378, so MCL 168.823(3) cannot form the basis for a writ of mandamus ordering
the Wayne County Board of Canvassers to tabulate the 37 uncounted ballots.

In plaintiff’s brief on appeal, he grounds his duty argument entirely in Const 1963, art 2,
§ 4(1). Plaintiff emphasizes in particular Const 1963, art 2, § 4(1)(a)’s language that all citizens
who are electors qualified to vote in Michigan shall have “[t]he fundamental right to vote,” and
Const 1963, art 2, § 4(1)(h)’s language extending this right “to vote an absent voter ballot.” This

case is a quagmire, but at bottom, the contested absentee ballots were counted as part of a recount,
and the plaintiff was seeking to have the Wayne County Board of Canvassers certify the results of
the recount, while the intervenor was seeking to have the contested absentee ballots thrown out
because they were not properly delivered to the clerk. Id. at 199-201. This Court explained that
the absentee ballots being improperly delivered to the clerk did not invalidate them but merely
subjected them to challenge pursuant to MCL 168.745. Id. at 203, 209. I do not understand anyone
in this case to be arguing that the 37 uncounted ballots should be rejected or are otherwise invalid.
The question, as I understand it, is whether the Wayne County Board of Canvassers had a duty to
tabulate the 37 uncounted ballots as requested by plaintiff in his writ of mandamus.

-3-
fundamental right to vote, plaintiff rightly observes, includes the right to have that vote counted.
See In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1,
47; 740 NW2d 444 (2007) (CAVANAGH, J., dissenting) (“The fundamental right to vote
encompasses the right to actually have those votes counted”); Reynolds v Sims, 377 US 533, 554;
84 S Ct 1362; 12 L Ed 2d 506 (1964). After citing these principles, plaintiff concludes, without
further explanation, that “defendants had a duty to count” the 37 uncounted ballots.

The broad principles on which plaintiff relies do not compel the conclusion that the Wayne
County Board of Canvassers had a clear legal duty to tabulate the 37 uncounted ballots whose
integrity the clerk could not confirm. “Within the meaning of the rule of mandamus, a ‘clear, legal
right’ is one clearly founded in, or granted by, law; a right which is inferable as a matter of law
from uncontroverted facts regardless of the difficulty of the legal question to be decided.” Warren
City Council v Fouts, 345 Mich App 105, 124; 4 NW3d 79 (2022) (quotation marks and citation
omitted). It is simply not inferable as a matter of law that a person’s right to have their vote
counted imposed a clear legal duty on the Wayne County Board of Canvassers, in particular, to
tabulate the uncounted ballots.

In summary, after reviewing all of the laws cited by the parties and the majority, I am not
persuaded that the Wayne County Board of Canvassers had a clear legal duty to tabulate the 37
uncounted ballots as plaintiff requested in his writ of mandamus.3 The problem as I see it is not
that the clerk failed to store the ballots in compliance with the Michigan Election Law but that
unauthorized individuals were confirmed to have had access to the unsecured ballots, as a result
of which the clerk could not confirm the integrity of the uncounted ballots.4 In situations like this,
the ballots may still be tabulated, but only at the discretion of the board of county canvassers under
MCL 168.823(3). That statute, by its terms, leaves the exercise of this ability “in the judgment of
the board of county canvassers,” so it cannot be the basis for a writ of mandamus. See Southfield
Ed Ass’n, 320 Mich App at 378 (explaining that a clear legal duty must “not involve discretion or

3
The majority does not reach plaintiff’s arguments that the trial court erred by failing to grant
plaintiff a declaratory judgment or injunctive relief, so I do not reach those issues either.
4
The fact that the clerk cannot confirm the integrity of the 37 uncounted ballots is a problem, and
I do not believe that the ballot-challenge procedures under MCL 168.745—which the majority
orders the 37 uncounted ballots be subjected to—sufficiently address the issue. When a ballot is
challenged, the basis for the challenge is whether the person was “an unqualified voter,” MCL
168.745, and such a challenge is resolved if it is determined that the voter was qualified to vote in
the election, MCL 168.748.

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judgment”).5 I therefore agree with the trial court that the Wayne County Board of Canvassers did
not have a clear legal duty to tabulate the 37 uncounted ballots, so I would affirm.6

/s/ Colleen A. O’Brien

5
Plaintiff and amicus correctly observe that the Wayne County Board of Canvassers could have
ensured the integrity of the 37 uncounted ballots before tabulating them by, for instance,
identifying and contacting all 37 voters and having them verify their ballots and the marks thereon.
I do not believe the existence of this possibility took away the Wayne County Board of Canvassers’
discretion under MCL 168.823(3), however.
6
Intervening-defendant spends much of his brief on appeal discussing statutes and caselaw
concerning recounts, and the majority rightly ignores this discussion because plaintiff has
repeatedly disavowed any suggestion that he is requesting a recount. That said, MCL 168.871 (the
statute that governs the eligibility of ballots in the event of a recount) does create somewhat of an
oddity if the 37 uncounted ballots are counted. Under MCL 168.871(1), only ballots that were
properly stored are generally eligible to be recounted. The proper-storage requirement can be
waived if a sufficient explanation is provided, but such an explanation must provide “that the
security of the ballots is otherwise preserved.” MCL 168.871(2). The security of the 37 uncounted
ballots was clearly not preserved, so if plaintiff was requesting a recount, those ballots would
seemingly be ineligible under MCL 168.871(2).

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