STATE OF MICHIGAN IN THE COURT OF APPEALS

ATTORNEY GENERAL BILL SCHUETTE ON BEHALF OF THE PEOPLE OF THE STATE OF MICHIGAN, Plaintiff, v BOARD OF STATE CANVASSERS; CHRIS THOMAS, DIRECTOR OF ELECTIONS, Defendants. /

Court of Appeals No. 335947

DEFENDANT CHRISTOPHER THOMAS’ BRIEF IN RESPONSE TO COMPLAINT FOR MANDAMUS

Aaron D. Lindstrom (P72916) Solicitor General Counsel of Record Denise C. Barton (P41535) Heather S. Meingast (P55439) Erik A. Grill (P64713) Adam Fracassi (P79546) Assistant Attorneys General Attorneys for Defendants Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, Michigan 48909 517.373.6434

Dated: December 5, 2016

The appeal involves a ruling that a provision of the Constitution, a statute, rule or regulation, or other State governmental action is invalid.

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TABLE OF CONTENTS

Page Index of Authorities ....................................................................................................... ii 

Statement of Jurisdiction ............................................................................................. iv 

Counter-Statement of Question Presented ................................................................... v 

Introduction ................................................................................................................... 1 

Counter-Statement of Facts and Proceedings .............................................................. 2 

Argument ....................................................................................................................... 6 

I.  Mandamus relief is not clearly warranted against Director Thomas under the circumstances of this case. ................................................................ 6 

A.  Standards for granting mandamus relief. ............................................... 6 

B.  Analysis .................................................................................................... 7 

1.  Overview of the Board of State Canvassers and Director Thomas’ duties. .............................................................................. 7 

2.  Count I – Mandamus Prohibiting Recount ................................. 10 

3.  Count II – Mandamus Ordering Compliance with MCL 168.882(3) ..................................................................................... 11 

4.  Count III – Mandamus Requiring the Board to complete any Recount and Certify Electors by December 13, 2016 .......... 12 

5.  Count IV – Mandamus Ordering any Recount to Proceed Electronically ............................................................................... 14 

Conclusion and Relief Requested ................................................................................ 16 

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INDEX OF AUTHORITIES

Page

Cases

Automobile Club of Mich Committee for Lower Rates Now v Secretary of State (On Remand), 195 Mich App 613 (1992) ................................................................... 6

Bush v Palm Beach Co Canvassing Bd, 531 US 70 (2000) ........................................ 13

Citizens Protecting Michigan's Constitution v Sec'y of State, 280 Mich App 273 (2008) ................................................................................................................... 6

Delly v Bureau of State Lottery, 183 Mich App 258 (1990) ........................................ 16

Stein, et al. v Thomas, et al., 16-cv-14233 ..................................................................... 5

Teasel v Dep’t of Mental Health, 419 Mich 390 (1984) .............................................. 15

Trump v Michigan Board of State Canvassers, et al., Michigan Court of Appeals No. 335958, and Michigan Supreme Court No. 154868 ............................. 5

Tuggle v Dep't of State Police, 269 Mich App 657 (2005) ............................................. 6

White-Bey v Dept of Corrections, 239 Mich App 221 (1999) ........................................................................................... 7

White-Bey v Dept of Corrections, 239 Mich App 221 (1999) ......................................... 7

Wolverine Golf Club v Secretary of State, 24 Mich App 711 (1970) ............................. 6

Ziegler v Board of State Canvassers, et al., Circuit Court No. 16-901-CZ ................... 4

Statutes

MCL 168.22 .................................................................................................................... 7

MCL 168.22d ............................................................................................................ 7, 11

MCL 168.32 .................................................................................................................... 7

MCL 168.46 .................................................................................................................. 12

MCL 168.47 .................................................................................................................. 12

MCL 168.841 ............................................................................................................ 7, 12

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MCL 168.868(3) ............................................................................................................. 8

MCL 168.871 .................................................................................................................. 9

MCL 168.875 ................................................................................................................ 10

MCL 168.879(1) ....................................................................................................... 4, 11

MCL 168.882 ........................................................................................................ passim

MCL 168.882(3) ......................................................................................... 2, 5, 8, 10, 11

MCL 168.890 ............................................................................................................ 9, 11

MCL 168.891 ............................................................................................................ 9, 16

MCL 168.892 ................................................................................................................ 10

MCL 169.871(4) ........................................................................................................... 14

Constitutional Provisions

Const 1963, art 2, § 7 ..................................................................................................... 7

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STATEMENT OF JURISDICTION

This Court has original jurisdiction to entertain an action for “mandamus

against a state officer.” MCL 600.4401; MCR 3.305(A)(1); MCR 7.203(C)(2).

Christopher Thomas is a state officer. Jurisdiction is proper in the Court of

Appeals.

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COUNTER-STATEMENT OF QUESTION PRESENTED

1. A writ of mandamus may only issue when the requesting party demonstrates that it has a clear legal right to performance of the specific duty sought, and where the defendant has the clear legal duty to perform the act requested. Is mandamus relief warranted against Director of Elections Chris Thomas under the circumstances of this case?

Appellant’s answer: Yes.

Appellees’ answer: No.

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INTRODUCTION

Plaintiff Attorney General Bill Schuette filed the instant complaint

requesting issuance of mandamus relief against Defendants State Board of

Canvassers and Director of Elections Christopher Thomas. For the reasons set

forth below, mandamus relief is not clearly warranted against Director Thomas

under the circumstances of this case.

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COUNTER-STATEMENT OF FACTS AND PROCEEDINGS

On November 28, 2016, the Board of State Canvassers (Board) certified the

November 8, 2016, general election results, which included the results for the

presidential race.1 Republican candidate Donald Trump received the highest

number of votes (2,279,543), and Democrat candidate Hillary Clinton received the

second-highest (2,268,839). Green Party candidate Jill Stein came in fourth place,

receiving 51,463 votes out of almost 4.8 million votes cast. Because certification of

the election results starts the clock ticking for the filing of any request to recount a

race, the Board moved to “authorize the staff of the Bureau of Elections to represent

the Board in any recount of votes cast at the November 8, 2016 general election.”

(Ex. 1, 11/28/16, Trans p 40). With respect to recounts, Defendant Director of

Elections Christopher Thomas stated that the longstanding policy of the Board was

to conduct recounts by a hand count, but that the Board could revisit that issue.

Id., pp 39-40.

Two days later, on November 30, 2016, Ms. Stein filed a petition for recount

with the Board, requesting a statewide recount and further asking that any recount

be done by hand. The filing to the recount petition triggers certain requirements

under Michigan Election Law, MCL 168.1 et seq. Notice of the recount had to be

given to the other presidential candidates within 48 hours of the filing, MCL

168.882(1), and those candidates had 7 days within which file a counter petition or

objections to the recount petition, MCL 168.882(2)-(3). Also, Defendant Director of

1 The results are available on the Department of State’s website at http://miboecfr.nictusa.com/election/results/2016GEN_CENR.html.

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Elections Christopher Thomas and the Bureau of Elections began preparing for the

conducting of the recount.

On December 1, 2016, an objection to Ms. Stein’s recount petition was timely

filed on behalf of Mr. Donald Trump. (Ex. 2, Objections). The objections raised

three arguments in opposition to the petition; (1) that Ms. Stein was not an

aggrieved candidate for purposes of filing the petition, (2) that a recount could not

be completed before the requirements of federal law regarding the counting of the

electoral votes became operative, and (3) that Ms. Stein’s petition was not properly

sworn under Massachusetts law. Id. The filing of the objections halted the recount

process until the objections were ruled on by the Board. MCL 168.882.

Late the same day, Ms. Stein filed a response to Mr. Trump’s objections. (Ex.

3, Response). She asserted that she was an “aggrieved” candidate as that law has

been interpreted in Michigan; that the argument the recount could not be timely

completed was speculative and not a proper objection to the form of the petition;

and that her petition was properly sworn. Id.

On December 2, 2016, at 9:30 a.m., the Board met to rule on the objections as

required by law. However, before the Board convened it and Director Thomas were

served with the instant complaint for mandamus and bypass application to the

Michigan Supreme Court.2 The Board recessed for a brief time to review the

lawsuits, reconvened, and then moved to go into closed session to discuss the

2 The Board and Director Thomas were also served with another complaint for mandamus filed in the Ingham Circuit Court by a political action committee. See Ziegler v Board of State Canvassers, et al., Circuit Court No. 16-901-CZ (Jamo, J.).

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litigation with their undersigned counsel. The Board reconvened and turned to

consideration of the objections.

Attorneys for Mr. Trump argued their objections to the Board, and the

attorney for Ms. Stein argued in opposition to the objections. At the conclusion of

the attorneys’ arguments, Board Member Shinkle moved that the Board approve

the objection to the petition that it did not comply with the law because Ms. Stein

did not sufficiently allege or identify how she was aggrieved by the results of the

election. Board Member Pero added that she considered the petition deficient in

that it did not allege the nature of the fraud or mistake believed to have occurred in

canvass as required by MCL 168.879(1)(f).3 Board Member Matuzak expressed her

opinion that the petition’s language complied with the law in that it was not

required to set forth specific allegations of fraud or mistake. The motion failed on a

2-2 vote. The Board thereafter heard testimony from several citizens, including a

clerk who discussed issues relating to the use of hand counts and machine counts

for conducting a recount. Subsequently, Member Shinkle moved that the Board

conduct the recount by a machine count instead of a hand count. The motion failed

on a 2-2 vote. After additional comments from Mr. Trump’s and Ms. Stein’s

attorneys, Member Shinkle moved that the Board stop the recount process when it

becomes evident that it is mathematically impossible for Ms. Stein to prevail. That

3 This section provides that the petition must “set[ ] forth as nearly as possible the nature and character of the fraud or mistakes alleged and the counties, cities, or townships and the precincts in which the exist.” MCL 168.879(1)(f).

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motion failed as well on a 2-2 vote. Shortly thereafter, the Board recessed the

meeting.

Because no objection to Ms. Stein’s petition was sustained, the recount may

proceed. However, the law provides that the recount may not begin until two

business days have elapsed since the Board’s determination of the objections. MCL

168.882(3). Absent judicial intervention, the recount will begin Wednesday,

December 7, 2016.

After the meeting, the State Defendants were served with another complaint

for mandamus in the Michigan Court of Appeals and a bypass application in the

Michigan Supreme Court on behalf of Mr. Trump, which lawsuit raises arguments

similar to the objections filed with Board of State Canvassers. See Trump v

Michigan Board of State Canvassers, et al., Michigan Court of Appeals No. 335958,

and Michigan Supreme Court No. 154868. As in this case, the State Defendants

have been ordered to respond to that complaint by noon on Monday, December 5,

2016.

After the close of business on Friday, December 2, Ms. Stein filed a complaint

in the United States District for the Eastern District of Michigan, Stein, et al. v

Thomas, et al., 16-cv-14233 (Goldsmith, J.). This lawsuit asks the federal court to

declare that portion of MCL 168.882(3) imposing a two business day waiting period

for the commencement of the recount process unconstitutional as applied to Ms.

Stein’s recount. Ms. Stein later filed an ex parte motion for temporary restraining

order requesting that the federal court order the immediate commencement of the

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recount process. An all-day hearing was held Sunday, December 4, 2016, and the

federal court issued a TRO stating that the recount begin at noon on Monday,

December 5, 2016 and must continue until further order of the federal court. (Ex. 5,

TRO).

ARGUMENT

I. Mandamus relief is not clearly warranted against Director Thomas under the circumstances of this case.

A. Standards for granting mandamus relief.

Although courts have held that mandamus is the appropriate remedy for a

party seeking to compel action by election officials, see, e.g., Wolverine Golf Club v

Secretary of State, 24 Mich App 711 (1970), aff’d 384 Mich 461 (1971); Automobile

Club of Mich Committee for Lower Rates Now v Secretary of State (On Remand), 195

Mich App 613 (1992), a writ of mandamus remains an extraordinary remedy and

will only be issued where: “(1) the party seeking the writ has a clear legal right to

performance of the specific duty sought, (2) the defendant has the clear legal duty to

perform the act requested, (3) the act is ministerial, and (4) no other remedy exists

that might achieve the same result.” Citizens Protecting Michigan’s Constitution v

Sec’y of State, 280 Mich App 273, 284 (2008), citing Tuggle v Dep’t of State Police,

269 Mich App 657, 668 (2005). The specific act sought to be compelled must be of a

ministerial nature, which is prescribed and defined by law with such precision and

certainty as to leave nothing to the exercise of discretion or judgment. Citizens

Protecting Michigan’s Constitution, 280 Mich App at 286. “The burden of showing

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entitlement to the extraordinary remedy of a writ of mandamus is on the plaintiff.”

White-Bey v Dept of Corrections, 239 Mich App 221, 223; 608 NW2d 833 (1999).

B. Analysis

The Board ruled on the objections submitted by Mr. Trump to Dr. Stein’s

recount petition within the time set by statute. The consequence of the Board’s

ruling was that the objections were not approved and so the recount will proceed.

Director Thomas has a legal duty to act as the Board’s designee and supervise,

direct, and control the recount. As a result, mandamus relief is not clearly

warranted here.

1. Overview of the Board of State Canvassers and Director Thomas’ duties.

The Board is a constitutional board created by Const 1963, art 2, § 7, and its

duties and responsibilities are established by law. See MCL 168.22(2). It is

composed of four members – 2 Republicans and 2 Democrats – appointed by the

Governor with the advice and consent of the Senate. MCL 168.22(3). The Director

of Elections serves “as a nonmember secretary” of the Board. MCL 168.32. “Three

members of the board of state canvassers constitute a quorum of the board.

However, an action of the board of state canvassers shall only be effective upon

concurrence of at least 1 member of each major political party appointed to the

board.” MCL 168.22d.

Relevant here, the Board has the following duties with respect to recounts.

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Under MCL 168.882(3) the Board must receive and address any objections

submitted with respect to a recount petition:

On or before 4 p.m. of the seventh day after a recount petition has been filed . . . an opposing candidate may file objections to the recount petition with the board of state canvassers. The opposing candidate shall set forth his or her objections to the recount petition in writing. Upon receipt of an objection under this subsection, the board of state canvassers shall notify the petitioner and the objecting candidate of the date of the hearing of the board of state canvassers to consider the objections. The board of state canvassers shall allow the recount petitioner and the objecting candidate to present oral or written, or both, arguments on the objections raised to the recount petition at the hearing. Not later than 5 business days following the hearing, the board of state canvassers shall rule on the objections raised to the recount petition. The board of state canvassers shall not begin a recount unless 2 or more business days have elapsed since the board ruled on the objections under this subsection, if applicable.4

The Board also must investigate the facts alleged in a recount petition and

cause the recount to occur:

The board of state canvassers, at as early a date as possible after the receipt of such petition and the deposit required, shall investigate the facts set forth in said petition and cause a recount of the votes cast in the several precincts included in the petition. [MCL 168.883.]5

Under MCL 168.889, the Board directs, supervises, and controls the recount:

All recounts provided for in sections 878 et seq. of this act shall be conducted in the several counties wherein the votes to be counted were cast by the respective boards of county canvassers in each of the several counties, subject to the direction, supervision and control of the said board of state canvassers. The said board of state canvassers shall prescribe the time and the place in each county where the recount of any votes shall be conducted, which recount shall be in public. Said board shall provide each board of county canvassers with such rules

4 Subsection 882(3) was added by 1995 PA 261. A similar section was added to the provision regarding county boards of canvassers. See MCL 168.868(3). 5 County boards of canvassers have similar duties to investigate recount petitions. See MCL 168.869 and 168.870.

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and regulations as in the opinion of the said board of state canvassers shall be necessary to conduct such recount in a fair, impartial and uniform manner in the said several counties. . . . [Emphasis added.]

Board members need not be present at a recount; the Board may designate

other state officers and individuals to direct, supervise, and control the recount, and

those individuals have the same authority has the Board to enforce and carry out

the Board’s rules and regulations. MCL 168.890. In this case, the Board—through

unanimous vote on November 28, 2016—designated Director Thomas to represent

them in any recount petitions filed.

Generally, the manner of a recount conducted by the Board must be in the

same manner as that provided for with respect to recounts conducted by county

boards of canvassers. MCL 168.891. Relevant here, MCL 168.871 gives discretion

to the Board to determine the method of recounting:

(4) A board of canvassers conducting a recount pursuant to this chapter may conduct a recount by the following means:

(a) A manual tally of the ballots.

(b) A tabulation of the ballots on a computer using a software application designed to specifically count only the office or ballot question subject to the recount.

(c) A tabulation of the ballots on a computer using the same software application used in the precinct on election day.

(d) Any combination of methods in subdivision (a), (b), or (c), as determined appropriate by the board of canvassers. [MCL 168.871(4).]

Finally, when the recount is complete, the Board must compile and certify the

result:

Whenever a recount in any county shall be completed, it shall be the duty of the county boards of canvassers to return forthwith the results

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of such recount to the board of state canvassers, which board shall compile said returns and certify the result. The returns made by the said boards of county canvassers of any recount shall be deemed to be correct, anything in the previous return of any board of election inspectors or any county canvassing board to the contrary notwithstanding. . . . [MCL 168.892.]

Here, the recount regarding Dr. Stein’s petition must be completed by “not

later than the thirtieth day immediately following the last day for filing counter

petitions or the first day that recounts may lawfully begin.” MCL 168.875. The last

day for filing a counter petition is December 7, 2016, see MCL 168.882(2), which at

this time is also the day the recount may begin barring any delay, see MCL

168.882(3). Thirty days from December 7, 2016, is January 6, 2017.6

2. Count I – Mandamus Prohibiting Recount

In Count I of his complaint, Plaintiff asserts that the “State Defendants” had

“a clear legal duty to deny Stein’s request for a recount because she is not an

‘aggrieved’ party as a matter of law and she fails to satisfy the statutory

prerequisite for a recount.” (Complaint, ¶ 14). Plaintiffs asks this Court to “order

the “State Defendants” to deny Stein’s recount. . . .” Id., ¶ 17. But Director Thomas

is not a voting member of the Board, and he does not have the authority to either

approve or deny recount petitions. The only legal duty Director Thomas has with

regard to Dr. Stein’s recount is to act as the Board’s designated representative and

direct, supervise, and control the recount on the Board’s behalf to see that the

recount is conducted with fairness, impartiality, and uniformity. MCL 168.890.

6 Coincidentally, January 6, 2017, is the day that Congress must convene to count the electoral votes of all the States for president. See 3 USC § 15.

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Plaintiff is essentially arguing that the Board should have ruled in a

particular way – that is, finding that Ms. Stein was not an “aggrieved” candidate for

purposes of MCL 168.879(1)(b) because there is no possibility that a recount will

change the results of the election in Ms. Stein’s favor. But that was not the decision

reached by a majority of Board members with the concurrence of at least 1 member

of each major political party appointed to the board. MCL 168.22d. And neither the

Complaint nor the Plaintiff’s brief allege that Director Thomas—as the Board’s

designee—has any clear legal duty to refuse to conduct a recount without such a

decision having been made by the Board.

Director Thomas has no authority to grant or deny objections to recount

petitions, and he has no authority to ignore or contradict a ruling of the Board. So,

Director Thomas did not—and does not—have a clear legal duty to deny Dr. Stein’s

allegation that she was “aggrieved.” Under these circumstances, mandamus relief

against Director Thomas should be denied.

3. Count II – Mandamus Ordering Compliance with MCL 168.882(3)

In Count II of his complaint, Plaintiff requests that this Court order the

Board to comply with MCL 168.882(3), which requires a delay of two business days

before starting any recount after objections have been ruled upon by the Board.

(Complaint, ¶¶ 18-21). Under the terms of the TRO issued by the federal court, the

recount will begin at noon on Monday, December 5, 2016. Director Thomas is

complying with the law, and so this request for mandamus is moot.

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4. Count III – Mandamus Requiring the Board to complete any Recount and Certify Electors by December 13, 2016

In Count III of his complaint, Plaintiff requests that this Court order the

Board to complete any recount and certify electors by December 13, 2016.

(Complaint, ¶¶ 22-26). As noted above, on November 28, 2016, the Board fulfilled

its duty of canvassing and certifying the results of the November 8, 2016 general

election under MCL 168.841 and 168.842. Under MCL 168.46, “[a]s soon as

practicable” after the Board’s certification, the Governor must certify to the United

States Secretary of State the names and addresses of the electors of the State

chosen as electors for president and vice president. MCL 168.46. This process has

been completed. Michigan’s certified slate of electors was transmitted to the

appropriate official in Washington, D.C. on December 2, 2016. (Ex. 4, cover letter &

certificate). These electors will meet on December 19, 2016, to cast their electoral

votes for their candidates. See MCL 168.47 and 3 USC § 7 (“[E]lectors of President

and Vice President of each State shall meet and give their votes on the first Monday

after the second Wednesday in December next following their appointment at such

place in each State as the legislature of such State shall direct.”). The official votes

of Michigan’s electors will then be sent to Congress for counting along with the

electoral votes of the other States, and an official declaration of the winner of

president and vice president. 3 USC 15.

Accordingly, Michigan is in no danger of not having its electoral votes

counted by Congress on January 6, 2016. The December 13, 2016 date noted by

Plaintiff is a conditional deadline created by federal law under 3 USC 5 for the

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determination of any challenge to the appointment of a state’s electors. The section

creates a “safe harbor” for a state’s resolution of a challenge to its electors if the

final determination is “made at least six days prior to said time of meeting of the

electors,” which is December 19, 2016, as noted above. Id. See also Bush v Palm

Beach Co Canvassing Bd, 531 US 70, 77 (2000). If the six-day conditional deadline

is not met, Congress does not have to accept the state’s determination as

“conclusive” when it meets to count the electoral votes on January 6. Id. at 77-78.

Thus, Michigan is not required to finish any recount by December 13, 2016, but if it

does not do so by the 13th, and the results of the election somehow change—which

is generally viewed to be unlikely—Congress is not statutorily required to accept a

new determination and any revised slate of electors as “conclusive” when it

convenes on January 6.

At the December 2, 2016, meeting Defendant Director Thomas asserted that

it was unclear at this time whether the recount could be completed by December 13.

In the attached affidavit, Director Thomas avers that he and his staff are working

diligently and are exerting their best efforts to complete the recount as quickly as

possible. (Ex. 6, Thomas Affidavit, ¶ 15). Further, Director Thomas states that it is

his intention to complete the recount by December 12, 2016 so that the Board may

certify the results of the recount on December 13, 2016. (Ex. 6, Thomas Affidavit, ¶

16). Thus, mandamus is unnecessary as to Director Thomas because he is already

taking appropriate actions to attempt to complete the recount by December 13,

2016.

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Plaintiff further requests that this Court “order that if, at any point in the

recount process, the number of votes that Stein requires to win Michigan’s electoral

votes exceeds the number of ballots left to be counted, the recount must end

immediately.” Id., ¶ 27. While candidates commonly agree to end their recounts

under such circumstances, the law does not require them to do so. In any event,

neither the Complaint nor Plaintiff’s brief identifies any statutory, regulatory, or

judicial authority that would create a clear legal duty of a ministerial nature for

Director Thomas to end a recount without the consent of the candidate. Mandamus

is not appropriate here.

5. Count IV – Mandamus Ordering any Recount to Proceed Electronically

In Count IV of his complaint, Plaintiff requests that this Court order the

Board to conduct the recount electronically, rather than by a hand count.

(Complaint, ¶ 29). Plaintiff recognizes that the Board has discretion to choose

which method to use to conduct the recount under MCL 169.871(4), but that this

“discretion is cabined by the Legislature’s mandate that Michigan’s electors

participate fully in the federal electoral process. The Board has no discretion to

jeopardize Michigan’s votes in the Electoral College.” Id.

When the recount commences next week it is currently set to be conducted by

a hand count. As discussed at the December 2, 2016, meeting, this is the traditional

practice of the Board. Two members of the Board did move to change the method to

a machine or electronic count, but that motion did not prevail. As indicated in the

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attached affidavit, Director Thomas opposes a machine recount because

preparations, training, and logistic planning for the recount have already begun

based upon the Board’s policy that the recount will be conducted by hand. (Ex. 6,

Thomas Affidavit, ¶ 11). A machine recount differs in key respects—most notably

in the need to transport tabulator machines to the recount locations. (Ex. 6,

Thomas Affidavit, ¶ 13). The machines require electrical outlets, take up additional

space in the recount location, and must be tested—and, possibly, re-programmed—

prior to recounting ballots. (Ex. 6, Thomas Affidavit, ¶ 13). Challengers are still

permitted to see each ballot before it is inserted into the tabulators, and—since

Michigan does not have high-speed tabulators—each ballot is individually inserted

into the tabulators. (Ex. 6, Thomas Affidavit, ¶ 13). Director Thomas sought

comments from county clerks about the possibility of recount by machine. (Ex. 6,

Thomas Affidavit, ¶ 14). E-mails Director Thomas received in response are

attached to his affidavit, and they express genuine concerns the possible change.

(Ex. 6, Thomas Affidavit, ¶ 14).

Where an action is discretionary, mandamus generally will not lie. See e.g.,

Teasel v Dep’t of Mental Health, 419 Mich 390, 409-410 (1984); Delly v Bureau of

State Lottery, 183 Mich App 258 (1990). By statute, the Board has discretion to

determine the method of conducting the recount. MCL 168.891; 168.871. Moreover,

as explained above, the Board has fulfilled its duties and presently there is no

threat to the electoral process. The Board has discretion to determine which

method to use, and Director Thomas—as the Board’s designated representative—is

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merely effectuating the Board’s exercise of its discretion. Moreover, Director

Thomas has the legal duty to follow the determination of the Board, not to ignore

the Board’s decision or replace it with his own. Therefore, mandamus relief is not

appropriate against Director Thomas.

CONCLUSION AND RELIEF REQUESTED

For the reasons set forth above, Defendant Director of Elections Chris

Thomas requests that this Court deny Plaintiff’s complaint for mandamus relief.

Respectfully submitted, Aaron D. Lindstrom (P72916) Solicitor General Counsel of Record s/Denise C. Barton Denise C. Barton (P41535) Heather S. Meingast (P55439) Erik A. Grill (P64713) Adam Fracassi (P79546) Assistant Attorneys General Attorneys for Defendants Civil Litigation, Employment & Elections Division P.O. Box 30736 Lansing, Michigan 48909 517.373.6434

Dated: December 5, 2016

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