Post-Election Procedure in Michigan

By: Joshua Douglas

Two states—Michigan and New York—do not have separate election code provisions discussing election contests, but each state provides a remedy of quo warranto, which ultimately serves the same function by requiring the ouster of a candidate who has already taken office but then loses a post-election challenge. Historically, quo warranto actions were the common law mechanism to contest an election. Most states in the nineteenth century modernized their election contest provisions by enacting statutes to replace the common law quo warranto proceeding. Michigan and New York, however, retained and codified quo warranto as the means to contest an election. The theory behind a quo warranto action is that the candidate declared the winner has “usurped” the office. The losing candidate therefore must ask the attorney general to initiate an investigation into whether the winner has “usurped” the elected position. The attorney general screens the case and has the discretion to decide whether to bring a quo warranto judicial action seeking to “oust” the winner from office. In Michigan, if the attorney general refuses to act a private party may bring suit, but in New York the attorney general has complete discretion as to whether to proceed, and the quo warranto action is the sole mechanism to challenge the election. The “usurper” may suffer a penalty for taking the office: in both Michigan and New York, if a court rules in favor of the losing candidate, the “usurper” is subject to a $2000 fine.