Wednesday, September 1, 2010

Welcome to the High Court, Mr. Davis

The fake Tea Party has filed an application for leave to appeal with the Michigan Supreme Court, asking that court to overturn the Michigan Court of Appeals, a panel of which voted unanimously that the FTP should not be on the November ballot. With the much publicized departure of E. Weaver and the elevation of Alton Davis, this will be the first rule-of-law test for the newly constituted Supreme Court.

The issue is straightforward. Petitions to form new political parties are governed by Michigan's Election Law. The specific provision at issue here, apparently, is MCL (Michigan Compiled Laws) section 168.685(4), which states in relevant part:
The size of all organizing petitions shall be 8-1/2 inches by 13 inches and shall be printed in the following type sizes: The words "petition to form new political party" and the name of the proposed political party shall be in 24-point boldface type; the word "warning" and the language contained in the warning shall be in 12-point boldface type. (Emphasis added).
From the news accounts, it seems that the FTP submitted petitions for "The Tea Party" in which the word "The" was part of the party name, but was not in 24-point type. The Michigan Board of Canvassers deadlocked 2-2 on whether to approve the FTP for the November ballot, which constitutes a rejection. The FTP appealed to the Michigan Court of Appeals, which ruled 3-0 as follows:
The complaint for mandamus is DENIED. In light of plaintiff's failure to strictly comply with the requirements of MCL 168.685(4), plaintiff fails to establish a clear legal duty on the part of the [Board of State Canvassers] to certify the petition. See Michigan Civil Rights Initiative v Board of State Canvassers, 268 Mich.App. 506, 515; 708 NW2d 139 (2005). (Emphasis in original).
"Mandamus" (pronounced man-DAY-miss) is a legal term, short for "a writ of mandamus." Essentially, a complaint for mandamus is a request that a court order a government official or board to do something -- in this case, to certify the FTP for the November elections. To be successful, a mandamus plaintiff must show that (1) the plaintiff 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, (3) the act is ministerial (meaning the government official has no discretion in the matter), and (4) the plaintiff has no other adequate legal or equitable remedy.

So, the FTP had to show that it had a clear legal right to be certified, and that the State Board of Canvassers had a clear legal duty to do so. In order to make the required showing, the FTP had to comply with the election law regarding petitions for a new party.

Notably, the election law 24-point language is clear and mandatory -- note the use of the word "shall." If the typeface does not meet this requirement, the petitions are invalid under state law and must be rejected, as the Board of State Canvassers and the Michigan Court of Appeals agreed.

FTP lawyers will argue that the petitions "substantially" complied with the law and that it would not be "fair" to reject the petitions on a technicality.

The word "shall" is there for a reason. Elections need to be sacrosanct if we are to survive and flourish. There can be no compromise, and there is no way to "substantially comply" with a 24-point typeface requirement -- it's either 24 points or it isn't.

So, we have a clear rule-of-law issue for the Supreme Court to consider -- either reject the application (or grant it and affirm the Court of Appeals) or reverse the Court of Appeals, judicially inserting words into the statute, so that it reads something like this:
The words "petition to form new political party" and the name of the proposed political party shall be in approximately 24-point boldface type;
or this:
The words "petition to form new political party" and the name of the proposed political party shall usually be in 24-point boldface type;
or this:
The words "petition to form new political party" and the name of the proposed political party shall be in 24-point boldface type, unless we feel it wouldn't be fair to those we favor politically.
What do you say, Mr. Justice Davis? Will your first significant vote on the Supreme Court affirm the rule of law or destroy the sanctity of our elections because of your feelings?

Welcome to the high court. Time to step up and be counted.


  1. If you had read any caselaw regarding substantial compliance in the context of election law, you'd know that both the Court of Appeals and Supreme Court have allowed numerous petitions with defects far more glaring than the lack of the word "The" to make the ballot. But again, your overtly political bias emerges from the cloud of dust to paint what you see as a clear "rule of law" issue. Shame on you for not fairly discussing the relevant legal background.

    Needless to say, I doubt your take on this case would be the same if the shoe were on the other foot and the party who sought certification would allegedly take away votes from the Dems. It's time for your "rule of law" sham to be revealed for what it is--just another form of the judicial activism you so vehemently (and hypocritically) decry.

  2. Thanks for the comment, Mark. Hope springs eternal that, at some point, you and yours will realize that there is no such thing as "substantial compliance" when it comes to mathematics. 24 is 24, it's not 16 or 18 or anything else; and the name of the party is the name of the party, not some of the name or most of the name.

    If you read any of the cases, particularly those in which the "majority of four" overruled prior decisions, you would see that they were characterized by thoughtful discussions of the rule of the law, honoring the bargains of the parties and the decisions of the legislature. It's not the "rule by whim" the Democrats offer.

    Nice try, though. Keep reading and commenting, and why not use your real name, Mark?

  3. If only my name were Mark, Bob Young. Your reading skills are obviously no better than your name recognition skills, because both MCL 168.685(3) and (4) include the word "substantial[ly comply]" with respect to the form of the petition. Thus, the Legislature obviously thought it appropriate to leave room for minor errors or omissions. And you call yourself a textualist. Tisk Tisk.

    You should also be aware of the fact that the "real" Tea Party is not even a political party in Michigan. So there could not have been any confusion over the lack of the word "The" in the petition, because there is only one official party using the words "Tea Party" in its name.

    Also, why did you resort to referencing the "majority of four"? They (and their decisions) were not at issue in the Tea Party case. Nor is the "rule of whim" to which you so eloquently (gag me) refer.

    Finally, I actually agree with the Supreme Court's denial of leave in the case, despite the fact that the COA (and you) misapplied the relevant statutes.