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    Who are the NERD fund donors Mr Snyder?

    Raise the curtain.

    Welcome to the High Court, Mr. Davis

    By The Wizard of Laws, Section News
    Posted on Wed Sep 01, 2010 at 07:31:45 PM EST
    Tags: Alton Davis, Board of State Canvassers, court of appeals, elections, Elizabeth Weaver, fake Tea Party, mandamus, Michigan Supreme Court, petitions, Tea Party (all tags)

    Cross-Posted in The Wizard of Laws

    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.

    < A Most Pernicious Pest | Can Alton Davis Even Be Nominated for the 2010 Election? >

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    I have my Abacus ready (none / 0) (#1)
    by JGillman on Wed Sep 01, 2010 at 08:37:42 PM EST
    Let the counting begin..

    This strikes me as ridiculous (none / 0) (#2)
    by Seth9 on Thu Sep 02, 2010 at 03:07:45 AM EST
    The actions of the "Tea Party" were unethical, but I find it worse that we are making a precedent where we can deny the right to form a party because they happened to mess up the font on their application.

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