990 N.W.2d 372
Mich. Ct. App.2022Background
- William Bailey, an Antrim County voter, sued Nov. 23, 2020 seeking (1) forensic imaging of 22 Dominion precinct tabulators, thumb drives, related software and the county "master tabulator," and (2) the right to conduct an independent, non‑partisan audit; he also sought preservation/protective relief and an injunction preventing machines from being powered or connected to the internet.
- The trial court entered a preservation order (and Antrim agreed not to connect the one Dominion tabulator it possessed); Bailey’s team imaged certain media on Dec. 6, 2020; a hand recount in Antrim and statewide audits were later performed.
- The Secretary of State intervened; after discovery defendants moved for summary disposition arguing mootness, lack of standing, and failure to state claims. The trial court dismissed Bailey’s complaint in May 2021, finding the claims moot and that Bailey had no right to the audit he sought.
- On appeal the Court of Appeals held the trial court erred in labeling the claims moot but affirmed dismissal under MCR 2.116(C)(8): the constitutionally guaranteed audit right (Const 1963, art 2, § 4(1)(h)) is "in such manner as prescribed by law," and the Legislature/Secretary of State (via MCL 168.31a) control audit procedures; private, voter‑directed audits are not permitted by the statute or constitution as pleaded.
- The court also affirmed dismissal of quo warranto and equal protection claims for failure to plead material facts showing error or discrimination that could have affected election outcomes, and it upheld denial of leave to amend as prejudicial and futile given the late, expansive proposed amendments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of claims | Bailey: relief still needed; not moot because he sought broader access and audit rights | Defendants: relief already granted (preservation and limited imaging); claims moot | Court: trial court erred on mootness, but dismissal affirmed on other grounds (C)(8) |
| Right to conduct private independent forensic audit (Const art 2, § 4(1)(h)) | Bailey: § 4(1)(h) grants voters a self‑executing right to a full, independent forensic audit of machines and media | Defendants: § 4(1)(h) requires audits "in such a manner as prescribed by law" and MCL 168.31a vests audit procedures/authority with Secretary of State and county clerks; no private audit right | Held for defendants: plaintiff has no statutory/constitutional right to conduct his own audit as pleaded; claim fails as matter of law |
| Quo warranto and MCL 168.861 remedies | Bailey: alleged material fraud/errors and statutory violations justify quo warranto relief and forensic imaging | Defendants: plaintiff failed to plead particularized facts showing material fraud/error that could have affected the outcome; MCL 168.861 is not a standalone cause of action | Held for defendants: quo warranto claims dismissed for failure to plead clear, positive facts showing material fraud or error; MCL 168.861 not an independent cause of action |
| Equal protection | Bailey: his vote was devalued by "rampant and systematic fraud," warranting relief | Defendants: Bailey pled only generalized allegations, not intentional/arbitrary discrimination or differential treatment of similarly situated voters | Held for defendants: equal protection claim fails for lack of allegations showing purposeful discrimination or treatment different from similarly situated voters |
| Leave to amend after discovery closed | Bailey: should be allowed to amend to add defendants/claims (including challenge to MCL 168.31a) | Defendants: amendment was late, would add parties/claims after discovery and prejudice defendants | Held for defendants: leave to amend would be prejudicial and futile; denial was proper |
Key Cases Cited
- Rooyakker & Sitz, PLLC v Plante & Moran, PLLC, 276 Mich App 146 (2007) (first judgment disposing of all claims is a final appealable order)
- El‑Khalil v Oakwood Healthcare, Inc., 504 Mich 152 (2019) (standards for de novo review of summary disposition and MCR 2.116(C)(8))
- Barrow v Detroit Mayor, 290 Mich App 530 (2010) (quo warranto under MCL 600.4545 requires material fraud or error that might have affected the result)
- Hanlin v Saugatuck Twp, 299 Mich App 233 (2013) (distinguishing quo warranto to challenge officeholder vs. election validity; pleading standards)
- Adair v State, 486 Mich 468 (2010) (principles for constitutional interpretation; give effect to intent and common understanding)
- Nat’l Pride at Work, Inc v Governor, 481 Mich 56 (2008) (when constitutional language is unambiguous, courts may not resort to extrinsic evidence)
- Bush v Gore, 531 US 98 (2000) (recognition that election procedures must protect fundamental voting rights)
- Decker v Rochowiak, 287 Mich App 666 (2010) (standards for denying leave to amend: undue delay, bad faith, prejudice, or futility)