STATE OF MICHIGAN COURT OF CLAIMS JAMES CRAIG, OPINION AND ORDER Plaintiff, v Case No. 22-000073-MB MICHIGAN BOARD OF STATE Hon, Elizabeth L. Gleicher CANVASSERS, and JOCELYN BENSON, in her official capacity as Secretary of State Defendants. Pending before the Court is plaintiff's complaint for immediate mandamus and injunctive relief, Also befofe the Court are defendants’ respective motions for summary disposition, ‘The Court of or issued a published decision resolving the issue at the heart of the request for mandamus relief in the matter of Johnson v Bd of State Canvassers, _ Mich App _;__ NW2d (2022) oct No. 361564). Because Johnson controls the underlying issue and because the remaining ypensin the complaint fail to state a claim, the request for mandamus and injunctive relief is DENIED and summary disposition is GRANTED to defendants, 1. BACKGROUND Plaintiff James Craig is a candidate for governor and he seeks to qualify for the upcoming ‘August 2, 2022 ptimary election. ‘To qualify, plaintiff needs 15,000 valid signatures on petition sheets Rlaintiff submitted 21,305 signatures on or before the April 19, 2022 deadline, seemingly in excess of required target number. After the Board of Elections started its review ofnominating petitions, it noticed, according to a May 23, 2022 staff report, “a large number of petition sheets, submitted by certain circulators, appeared fraudulent and consistent entirely of invalid signatures.”' A Bureau of Elections Staff Report revealed that the Bureau soon identified common issues on petitions sheets submitted by 36 petition circulators on behalf of various candidates, including plaintiff: + An unusually large number of petition sheets where every signature line was completed, or where every line was completed but one or two lines were crossed out; + Many sheets showing signs of apparent attempts at “intentional” signature invalidity, including sheets where an entry listed a county in the “city or township” field, or a birth date rather than the date of signing in the “date” field; + Anunusually large number of petition sheets that showed no evidence of normal ‘wear that accompanies circulation, including folding, scuffing, minor water damage from rain, or any of the other characteristics that come from sheets being kept on clipboards and handled by multiple people in public or outdoor conditions. + Sheets that appeared to be “round-tabled” a practice in which a group of individuals passes around sheets with each individual signing one line on each sheet with handwriting different from the circulator’s handwriting, in an attempt to make handwriting and signatures appear authentic and received from actual voters. + Sheets on which blank and completed lines were randomly interspersed, indicating that a sheet had been submitted “mid-round-table.” In such cases, a sheet ‘was submitted even though the round-tabling process had not been completed. * Sheets where all ten lines had signatures and partial addresses or dates, but only arandom subset were fully completed; + _ Sheets on which every instance of the handwriting of certain letters across different signatory lines and sheets, including in the signatures themselves, was near-identical; + Sets of sheets where the two or three distinct handwriting styles appeared on multiple sheets. [Footnotes omitted.] ' There has never been any indication or allegation that plaintiff, or any of the other candidates affected by similar issues, had any knowledge of or involvement in the fraudulent activity. 2The Bureau issued a Staff Report in which it noted its ordinary review process, and admitted that its previous review process was pethaps not equipped for the widespread, “unprecedented” fraud that it encountered. As explained by the Bureau’s May 23, 2022 Staff’ Report issued in response to all of the suspected fraud cases: Because, in the past, the number of signatures of dubious authenticity were typically scattered throughout petitions and relatively small in number, the Bureau has previously not developed a separate review procedure for fraudulent petition sheets. Instead, the Bureau would review sheets and signatures individually if identified during face review or during a challenge. However, because of the unprecedented number of fraudulent petition sheets consistent of invalid signatures identified during the initial review of petition sheets submitted this election cycle, and the fact that the same fraudulent-petition circulators submitted petition sheets for many different candidates, it was not practical to review these sheets individually during the course of ordinary face review and challenge processing. Instead, staff utilized an additional step within the processing method described above. Prior to face review, staff reviewed each candidate's petitions for petitions signed by circulators who were suspected of submitting fraudulent sheets. Signatures appearing on these fraudulent sheets were separated from the remaining petition sheets for each candidate. To verify that these fraudulent petition sheets did not include sheets or individual signatures that were actually valid signatures submitted by registered voters, staff conducted a targeted signature check of signatures across each circulator’s sheets for each candidate to confirm that these circulators’ submissions in fact consisted of fraudulent sheets with invalid signatures. ‘The Bureau determined that all reviewed signatures appearing on sheets signed by the fraudulent-petition circulators were invalid. After petition sheets submitted by the fraudulent-petition circulators were identified, the number of signatures appearing on those sheets was totaled and that total was subtracted from the number of signatures submitted by the candidate. If the candidate had enough potentially valid signatures to remaining to avoid immediate disqualification, the petitions were then put through the face review and challenge process described above. Ifnot, Bureau recommended the Board determine the petitions insufficient. Staff determined that the fraudulent petition sheets consisted of signatures that were invalid because the petitions consisted of names of voters who were not registered in the appropriate jurisdiction, or names of valid registered voters with forged signatures. Staff were able to identify fraudulent petition sheets using a combination of methods. First, staff noted that the signatures, names, addresses, and dates on many of the fraudulent sheets were obviously signed by one or a small number of individuals which can be seen in the Upon noticing these similarities in 3.handwriting, staff began to check individual signatures and voter information against the Qualified Voter File. Review showed that a significant percentage of alleged signatories were no longer registered in the jurisdiction because they had moved from the address marked on the petition sheet months or years before. Review also revealed that a number of the alleged signatories’ registrations were cancelled because the individual had died prior to the date of signing. None of the reviewed signatures appearing on these petition sheets had redeeming qualities demonstrating a match when compared with the signature on file. [Emphasis added; footnote omitted.] On April 26, 2022, a challenge was submitted to the validity of plaintiff's signatures. On or about May 2, 2022, at a Board of State Canvassers Hearing, the Bureau of Elections provided some insight on the procedures that it would purportedly use to address the suspected fraud. On May 23, 2022, the Bureau of Elections published its Staff Report in which it recommended that 9,879 of plaintiff's signatures be set aside as invalid because the petition sheets on which they appeared were submitted by circulators who had been suspected of fraud. In addition, the report recommended invalidating 506 signatures for “Signature errors,” and another 728 for “Miscellaneous errors” described as “signatures of dubious authenticity where the petition signature does not match the signature on file or multiple signatures appear to have been written by the same individual.” After invalidating these signatures, plaintiff was left with only 10,192 signatures, which was well short of the threshold for appearing on the primary ballot? The 9,879 signatures collected on sheets by suspected fraudulent petition circulators, as well as the decision and process to invalidate them, are at the heart of the issues presented in this case. According to a Bureau of Elections Staff Report issued for plaintiff, 18 suspected fraudulent 2 Plaintiff attempted to make a supplemental filing of additional signatures; however, he missed the deadline for doing so. See MCL 168.53. No issues have been raised in this case about the rejected supplemental filing. 4signature gatherers were responsible for the signatures at issue. The petition sheets obtained by these signature gatherers shared “Distinctive characteristics” of fraud, including: (1) “Consistent handwriting for the entry of a petition sheet, including signatures”; and (2) “Evidence of ‘round- tabling,’ a practice in which a group of individuals pass around sheets with each individual signing one line on each sheet in an effort to vary handwriting.” The Staff Report contained illustrative examples from a number of petition sheets for each category of the “Distinctive Characteristics.” In addition, the report noted that some instances of fraud were “more obvious than others,” such as instances where it was apparent that the petition circulators “made little effort to vary handwriting,” or when they “would intentionally scrawl illegibly.” Some of these signatures were compared against the Qualified Voter File (QVF) and “none had any redeeming qualities” according to the Staff Report. The Bureau recommended determining that plaintiff's petition signatures were insufficient and below the 15,000-signature threshold. ‘According to the affidavit of Jonathan Brater, the Director of the Michigan Bureau of Elections, the Bureau engaged in a “targeted review” of plaintiff's petition signatures. This review involved checking 2,019 of the 9,879 (approximately 20.4%) allegedly fraudulent signatures on plaintiff's nominating petitions against the QVF. After conducting this review, the Bureau determined that none of the signatures were valid. ‘The targeted review of other candidates who obtained signatures from the alleged fraudulent petition circulators revealed a similar result. ‘The May 23, 2022 Bureau of Elections Staff Report was released “At least 2 business days before the board of state canvassers” was schedule to meet to make a final determination on the sufficiency of plaintiff's petition. See MCL 168.552(10). Plaintiff submitted a response, via counsel, to the staff report on May 25, 2022. The response raised challenges to the process employed by the Bureau of Elections in the Staff Reports and suggested that a “signature-by- 5signature comparison of petition signers to the Qualified Voter File” was required and that it would result in plaintiff qualifying for the primary ballot. The Board of State Canvassers held a public meeting on May 26, 2022 for a final determination on whether it would accept the recommendations regarding plaintiff and other candidates’ petitions. Plaintiff submitted the written response at the meeting. In addition, plaintiff's counsel appeared at the hearing and was given the opportunity to challenge the Staff Report and to implore the Board to determine that the petitions were sufficient, Plaintiff submitted affidavits—some of which were notarized, some of which were not—from a small number ‘oters—I5 in total—who declared that they had in fact signed a petition sheet circulated by one of the alleged fraudsters. The Board of State Canvassers took a vote on the recommendations and deadlocked, 2-2. Because no majority was reached, plaintiff was not certified as a candidate for the August 2, 2022 primary election. Plaintiff filed his complaint and petition for writ of mandamus in this Court the day after the Board of State Canvassers’ deadlock resulted in his exclusion from the ballot. Count I of the complaint asks for mandamus relief in the form of an order compelling the Board of State Canvassers to use the QVF to determine the genuineness of the signatures that were declared as invalid for being associated with fraudulent petition circulators. According to plaintiff, MCL 168.552 compels the Board to use the QVF for every signature. Plaintiff argues that the Board could not utilize a sampling method to compare signatures. He argues that the Board was under a clear legal duty to compare petition signatures against the QVF before striking them. In addition, and because the Board failed to perform this duty, plaintiff asks for a writ of mandamusto compel the Board to perform with that duty. Alternatively, plaintiff argues that if the Board cannot complete this duty in time, the Court should order his name be placed on the ballot. Count II of the complaint alleges a violation of Const 1963, art 1, § 17. Plaintiff alleges that he was deprived of the statutory protection of comparing petition signatures against the QVF. ‘According to plaintiff, “At least” five actions of the Board violated his right to due process, including: (1) that the Board provided no notice of its decision to institute a “sampling” methodology for reviewing signatures; (2) it provided no detail on the process it used for “targeting signatures”; (3) it did not provide notice of the individuals it targeted within plaintiff's petitions; (4) it “secretly” abandoned its statutory requirements and implemented a new rule; and (5) the “Two business days’ notice followed by a three-minute presentation” at the Board meet was a “grossly inadequate opportunity” for plaintiff to disprove the Board’s conclusions. Finally, Count III of the complaint alleges that the Board violated the “purity of elections” clause contained within Const 1963, art 2, § 4(2). According to plaintiff, the Board’s decision to eschew the signature-matching requirements in MCL 168.552(13) and the en masse striking of petition signatures amounted to the creation of a new rule that “can only lead to an escalating cycle of abuse” by partisan political operators against candidates. Counts II and III of the complaint are labeled as requests for injunctive relief. However, a review of those claims reveals that plaintiff has asked the Court to order defendants to certify him as eligible to appear on the ballot for the August 2, 2022 primary election. This sounds more in the nature of a request for mandamus relief than injunctive relief. Compare Rental Props Owners Ass'n of Kent Co, 308 Mich App at 518 (describing mandamus relief), with Johnson v Mich Minority Purchasing Council, _ Mich App _, _; __ NW2d __ (2022) (Docket No. 357979), aslip op at 3 (describing injunctive relief). And because such claims are “not properly addressed via mandamus,” they could be dismissed for that reason. See Johnson, Mich App at __, slip op at 11n8. Il. ANALYSIS Plaintiff asks for mandamus and injunctive relief. To be demonstrate entitlement to the extraordinary remedy of mandamus, plaintiff must show: (1) [he] has a clear, legal right to performance of the specific duty sought, (2) the defendant has a clear legal duty to perform, (3) the act is ministerial, and (4) no other adequate legal or equitable remedy exists that might achieve the same result. [Rental Props Owners Ass'n of Kent Co v Kent Co Treasurer, 308 Mich App 498, 518; 866 NW2d 817 (2014). The issue at the heart of the request for mandamus relief in Count I has been resolved by the published Court of Appeals decision in Johnson. In particular, the Johnson Court’s analysis, set forth at pages 9-11 of the slip opinion, is sufficient to resolve the primary issue in this case and need not be repeated at length herein, Nevertheless, the Court quotes the following passage from the opinion, as it makes clear that the Board did not have a clear legal duty to compare all of the signatures in plaintiff's nominating petitions against the QVF and that mandamus relief should not issue: Based on the record before this Court, its apparent that, after a canvass and hearing on a petition under MCL 168.552, the Board determined that several individuals—the fraudulent-petition circulators—knowingly and intentionally failed to comply with MCL 168.544c(8) and (10). Asa result, the Board had the discretion to disqualify their obviously fraudulent signatures without checking the signatures against local registration records. The Board, therefore, had a clear legal duty to investigate, but it did not have a clear legal duty to conduct a comparison of each fraudulent signature against the qualified voter file. Likewise, because the Board had the discretion to not check each and every signature submitted by the fraudulent-petition circulators, the act [plaintiff] is seeking to compel defendants to perform is not ministerial in nature. ... Because [plaintiff] bears the burden of demonstrating his entitlement to the requested writ, .. . we conclude that his failure feto show that the act requested is ministerial and his failure to show a clear legal duty on the part of the Board are fatal to his claim. [Johnson, Mich App at_, slip op at 11 (internal citations omitted).] ‘This Court is bound by Johnson under the principle of vertical stare decisis. Doe v Dep't of Transp, 324 Mich App 226, 231 n 2; 919 NW2d 670 (2018). Accordingly, mandamus will not issue and summary disposition will be granted to defendants on Count I of the complaint. Counts II and III seek injunctive relief on plaintiff's constitutional claims. As noted above, it appears plaintiff has asked for mandamus relief, and the Court could decline to address these claims via mandamus. Johnson, _ Mich App at __, slip op at 11 n 8, Nevertheless, Counts II and IN fail to state a claim. ‘Turing first to the due process claim, art 1, § 17 provides that: No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just ‘treatment in the course of legislative and executive investigations and hearings shall not be infringed. At a minimum, due process requires “notice of the nature of the proceedings and a meaningful opportunity to be heard by an impartial decision maker.” Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825 (2005). Here, by all accounts, plaintiff was given notice of the Board’s May 26, 2022 meeting, as well as prior notice, according to the timeframe set forth by MCL 168.552(10), of the hearing. He was given the Staff Report before the meeting as well. In addition, counsel for plaintiff was allowed to appear at the hearing, at which counsel made a statement and submitted a written response to the report. Furthermore, plaintiff was given notice of the challenge filed on April 26, 2022; the challenge contained examples of suspected fraud, thereby putting plaintiff on notice of some of the very issues he now raises. He was also provided, in advance of the hearing, the names of the purportedly fraudulent petition circulators. Stated otherwise, he knew which signatures were being invalidated, why they were being invalidated, and he was able 9to challenge the decision at the Board’s May 26, 2022 meeting. Accordingly, he had notice and ‘an opportunity to be heard, satisfying due process. See Reed, 265 Mich App at 159. See also Johnson, _ Mich App at _, slip op at 11-12 n 8 (remarking that, while it did not need to reach the merits of the due process claim in that case, it was “clear” under the circumstances that the plaintiff “was provided with” notice and an opportunity to be heard). Plaintiff's reply briefing attempts to argue that he was deprived of due process because the rules applied to candidates changed when the state abandoned the process of checking signatures against the QVF. Plaintiff is correct that defendants have admitted that the unique circumstances of this case and other, related cases, left it without an established procedure for determining the validity of petition signatures in the face of what appeared to be widespread and unprecedented fraud, But to the extent plaintiff anchors his claim in the notion that he had the right to have every signature compared against the QVF, his argument fails, for the reasons stated above. And because plaintiff otherwise received notice and an opportunity to be heard, he has failed to state a due process claim, and Count II will be dismissed. ‘As for Count III and the purity of elections, art 2, § 4(2) demands that “the legislature” shall “enact laws to regulate the time, place and manner of all nominations and elections, to preserve the purity of elections... .” “The phrase ‘purity of elections’ requires fairness and evenhandedness in the election laws of this state.” Taylor v Currie, 277 Mich App 85, 97; 743 ‘NW2d 571 (2007) (cleaned up). ‘This section unambiguously places a duty on the Legislature. See Promote the Vote v Sec’y of State, 333 Mich App 93, 133; 958 NW2d 861 (2020) (“The Legislature has constitutional authority to enact laws to preserve the purity of elections... ."). ‘And as noted by the Court of Appeals in Taylor, 277 Mich App at 96-97, the “purity of elections” clause embodies “two concepts: first, that the constitutional authority to enact laws to preserve the -10-purity of elections resides in the Legislature; and second, that any law enacted by the Legislature which adversely affects the purity of elections is constitutionally infirm.” (Citations and quotation ‘marks omitted; emphasis added). Plaintiff has failed to state a claim under Count III. ‘The defendants named in this action are simply not implicated in art 2, § 4. He does not identify any enactment of the Legislature that wouldimplicate art 2, § 4. In addition, where the procedures employed in this case were uniformly applied to all affected candidates, he cannot allege any unfair or disparate treatment. Count III will be dismissed as well. II. CONCLUSION IT IS HEREBY ORDERED that summary disposition is GRANTED to defendants under MCR 2.116(©)(8) and that the petition for writ of mandamus is DISMISSED with prejudice. This is a final order that resolves the last pending claim and closes the case. Sune 1, 2022 Aeguh Elizabeth L-Gleicher Judge, Court of Claims “lle