JON E COON V BUREAU OF ELECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
JON E. COON and LIBERTARIAN PARTY OF
MICHIGAN,
UNPUBLISHED
April 16, 2002
Plaintiffs-Appellants,
v
No. 229884
Ingham Circuit Court
LC No. 00-092155-AW
BUREAU OF ELECTIONS,
Defendant-Appellee.
Before: Cavanagh, P.J., and Sawyer and O’Connell, JJ.
PER CURIAM.
Plaintiffs Jon E. Coon and the Libertarian Party of Michigan appeal as of right from the
September 13, 2000, order of the trial court granting defendant’s motion for summary disposition
and denying mandamus. We affirm.
Plaintiffs filed the instant action in Ingham Circuit Court on July 25, 2000, seeking a
declaration that MCL 168.558(1), as amended by 1999 PA 217, was unconstitutional.1
Specifically, plaintiffs alleged violations of due process, equal protection, and the right to
freedom of expression. Plaintiffs also alleged that the statute violated the purity of elections
clause of the Michigan constitution. Const 1963, art 2, § 4. Plaintiffs also sought a writ of
mandamus ordering defendant to place Coon’s name on the ballot for the November 2000
general election.
The material facts in this action are not in dispute. According to the record, after the
Libertarian Party of Michigan’s May 2000 nomination convention, Coon was chosen to be the
party’s nominee for the state board of education. According to the complaint, on May 22, 2000,
Coon presented defendant with an affidavit of candidacy, certificate of acceptance, and statement
of organization in an effort to have his name placed on the ballot. However, Coon refused to
complete and sign the supplementary affidavit of identity noting his compliance with the
provisions of Michigan’s Campaign Finance Act (MCFA), MCL 169.201 et seq. Consequently,
defendant refused to accept Coon’s affidavit of identity and certificate of acceptance.
1
1999 PA 217 became effective on March 10, 2000.
-1-
After plaintiffs filed the present action, defendant moved for summary disposition under
MCR 2.116(C)(7) and (10) on August 18, 2000, arguing, as relevant to the present appeal, that
plaintiffs failed to make out an appropriate case for an order of mandamus, and that MCL
168.558(1) did not violate constitutional principles. A hearing on the motion was held on
August 23, 2000. As relevant to the present appeal, the trial court ruled as follows from the
bench:
In the matter before the court . . . the statute at issue has not restricted
Plaintiff Libertarian Party from being placed on the ballot with its candidate.
Rather, the decision by its candidate to refrain from signing a sworn statement,
which is required of all candidates, resulted in the party’s exclusion from the
election ballot.
As defendant correctly asserts, the statutory provision at issue is a
qualification rule that affects individual candidates and does not impact ballot
access of any political group. The Court is, therefore, of the opinion that neither
unreasonableness of the provision nor discrimination against Plaintiff Libertarian
Party has been shown by plaintiffs.
Accordingly, the trial court denied mandamus, and dismissed plaintiffs’ action. Plaintiffs
now appeal as of right. This Court denied plaintiffs’ motion to expedite this appeal in an order
entered February 20, 2002.
As noted, plaintiffs sought a writ of mandamus from the lower court ordering defendant
to place Coon’s name on the ballot for the November 2000 general election. In the context of
defendant’s summary disposition motion, the trial court denied mandamus. “A writ of
mandamus will only be issued if the plaintiffs prove they have a ‘clear legal right to performance
of the specific duty sought to be compelled’ and that the defendant has a ‘clear legal duty to
perform such act . . . .’” In re MCI Telecommunications Complaint, 460 Mich 396, 442-443; 596
NW2d 164 (1999), quoting Toan v McGinn, 271 Mich 28, 34; 260 NW 108 (1935). To the
extent that the present case requires us to address whether subsection 558(1) of the Michigan
Election Law, MCL 168. 1 et seq., violates Const 1963, art 2, § 4, this is a question of law that
we review de novo on appeal. Taylor Commons v Taylor, ___ Mich App ___; ___ NW2d ___
(Docket No. 224686, issued February 5, 2002), slip op, 3. Moreover, a statute is presumed to be
constitutional. Id.
A useful starting point for our analysis in this case is to delineate what is not at issue.
Specifically, in their brief on appeal, plaintiffs merely argue that MCL 168.558(1) is violative of
the purity of elections clause in the Michigan constitution. Notably, plaintiffs do not advance
arguments on appeal that MCL 168.558(1) violates due process, the right to freedom of
expression, or equal protection. Consequently, although it appears plaintiffs pursued these
arguments in the lower court, their failure to argue these claims on appeal renders them
abandoned. See, e.g., Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001). As a
result, we confine our analysis in the instant case to the narrow question whether MCL
-2-
168.558(1)2 contravenes the Michigan constitution’s purity of elections clause, Const 1963, art 2,
§ 4, which provides in pertinent part:
The legislature shall enact laws to regulate the time, place, and manner of
all nominations and elections, except as otherwise provided in this constitution or
in the constitution and laws of the United States. The legislature shall enact laws
to preserve the purity of elections, to preserve the secrecy of the ballot, to guard
against abuses of the elective franchise, and to provide for a system of voter
registration and absentee voting.
In Todd v Election Comm’rs of Kalamazoo, Calhoun, Branch, Eaton & Hillsdale Cos,
104 Mich 474, 483; 64 NW 496 (1895), our Supreme Court, quoting Justice Cooley’s treatise on
constitutional law, articulated the applicable standard courts are governed by in determining the
constitutionality of acts passed by the Legislature to preserve the purity of elections.
“All such reasonable regulations of the constitutional right which seem to the
legislature important to the preservation of order in elections, to guard against
fraud, undue influence, and oppression, and to preserve the purity of the ballotbox, are not only within the constitutional power of the legislature, but are
commendable, and at least some of them are absolutely essential.” [Id., quoting
Cooley, Const Lim 602.]
2
MCL 168.558(1) provides in pertinent part:
When filing a nominating petition, filing fee, or an affidavit of candidacy,
or within 1 business day of being nominated by a political party convention or
caucus, for a county, state, national, city, township, village or school district
office in any election, a candidate shall file with the officer with whom the
petitions or fee is filed 2 copies of an affidavit. The affidavit shall contain the
candidate’s name; address; ward and precinct where registered, if qualified to vote
at that election; a statement that the candidate is a citizen of the United States;
number of years of residence in that state and county; other information that may
be required to satisfy the officer as to the identity of the candidate; a statement
that, as of the date of the affidavit, all statements, reports, late filing fees, and
fines required of the candidate or any candidate committee organized to support
the candidate’s election under the Michigan campaign finance act, 1976 PA 388,
MCL 169.201 to 169.282, have been filed or paid; and a statement that the
candidate acknowledges that making a false statement in the affidavit is perjury,
punishable by a fine of up to $1,000.00 or imprisonment for up to 5 years, or both.
[Emphasis supplied.]
In Sullivan v Secretary of State, 373 Mich 627, 631; 130 NW2d 392 (1964), our Supreme
Court, commenting on the purpose of § 558, observed that the requirement of full and complete
identification of candidates required by the statutory provision was intended to “provide the
electorate with the information necessary to cast their ballots effectively for the candidates of
their choice.”
-3-
On appeal, the thrust of plaintiffs’ argument is that preventing an individual’s access to
the ballot on the basis of his failure to cite his compliance with the MCFA by way of a
supplementary affidavit is an unfair restriction by the Legislature outside the scope of Const
1963, art 2, § 4. We disagree.
As our Supreme Court acknowledged in Wells v Kent Co Bd of Election Comm’rs, 382
Mich 112, 123; 168 NW2d 222 (1969):
[T]he constitutional mandate to the legislature to enact laws to preserve the purity
of elections has been interpreted by th[e Supreme] Court to carry with it the
corollary that any law enacted by the legislature which adversely affects the purity
of elections is constitutionally infirm. The phrase, ‘purity of elections,’ is one of
large dimensions. It has no single, precise meaning. . . . [H]owever, . . . one of
the primary goals of election procedure is to achieve equality of treatment for all
candidates whose names appear on the ballot.
Further, the purity of elections clause requires the Legislature to exercise “fairness and
evenhandedness” in the drafting of Michigan’s election laws. Jacobs v Headlee, 135 Mich App
167, 176-177; 352 NW2d 721 (1984), quoting Socialist Workers Party v Secretary of State, 412
Mich 571; 317 NW2d 1 (1982). Where a party alleges unfair treatment on the basis of denial of
access to the ballot, this Court will address the argument as implicating a Const 1963, art 2, § 4
issue. Socialist Workers, supra at 598.
In the instant case, we reject plaintiffs’ contention that the requirement of MCL
168.558(1) that a candidate file a supplementary affidavit reflecting his compliance with the
provisions of the MCFA is violative of the purity of elections clause. Quite simply, the provision
at issue does not “impart[ ] a substantial unfair advantage to [specific] political parties,” and
plaintiffs have failed to persuade us that the requirement is inconsistent with the goal of
promoting equality of treatment among the various parties appearing on the ballot. Socialist
Workers, supra at 599. In other words, we do not agree with plaintiffs that MCL 168.588(1), as
amended by 1999 PA 217, provides an unfair advantage to a particular political party. Jacobs,
supra at 177.
Indeed, any disadvantage inuring to a candidate who fails to complete and submit the
supplementary affidavit flows not from the requirement of the statute itself, but from the
candidate’s decision to not comply with the requirement. Id. In their brief on appeal, plaintiffs
argue at length that the statutory provision is at odds with their belief of the proper function of
government. Nonetheless, although the requirement that a candidate submit an affidavit
reflecting his compliance with the MCFA may not accord with plaintiffs’ political beliefs, this
does not render the provision unconstitutional. As the learned trial court aptly observed, the
statute imposes the same requirement on all candidates for office, regardless of their political
affiliations. Moreover, we are of the view that requiring candidates for public office to prove
their compliance with the MCFA serves a compelling state interest by protecting the integrity of
Michigan’s electoral process. See Michigan State AFL-CIO v Secretary of State, 230 Mich App
1, 26, n 1; 583 NW2d 701 (1998) (O’Connell, J. concurring in part and dissenting in part). Thus,
the Legislature’s amendment of MCL 168.558(1) to require a candidate to demonstrate
compliance with the MCFA fell squarely within its authority under Const 1963, art 2, § 4.
Consequently, we reject plaintiffs’ challenge to the constitutionality of MCL 168.558(1).
-4-
Because plaintiffs have not established that defendant was under a clear legal duty to place
Coon’s name on the ballot, the trial court did not abuse its discretion in denying mandamus.
Affirmed.
/s/ Mark J. Cavanagh
/s/ David H. Sawyer
/s/ Peter D. O’Connell
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