Michigan Advisory Opinions June 14, 1984: AGO 6230 (June 14, 1984)

AGO 6230.

You have requested my opinion on two questions, the first of which may be stated as follows:

1. Must local political parties, created under an amendment to a village charter, qualify as state-wide political parties pursuant to 1954 PA 116, Sec. 685; MCLA 168.685; MSA 6.1685, in order to nominate candidates by means of party caucuses?

2 OAG, 1956, No 2526, p 188 (April 2, 1956), quoting from the Michigan Election Law, 1954 PA 116, MCLA 168.1 et seq; MSA 6.1001 et seq, Secs. 343 and 382, concluded that local party members assembled in a duly called caucus of a citizens party for the nomination of village officers may take action to change the village party name and village officials may not question the action taken. The opinion, in effect, upheld the legality of local parties based upon two provisions of the Michigan Election Law, supra, in existence at that time.

The first was 1954 PA 116, Sec. 382, supra, as amended by 1955 PA 271, which provided:

'Notwithstanding any other provision of law to the contrary, any village, the charter of which does not specify the time, manner and means of nominating and electing its public officers, shall nominate and elect such officers in accordance with the provisions governing the selection of township officers, as provided in chapter 16 of this act: Provided, That the village elections are to be held annually on the second Monday in March.' (Emphasis supplied.)

The second statutory provision which was interpreted to permit the holding of local caucuses for the purpose of nominating candidates was 1954 PA 116, supra, Sec. 343 which, in part, provided:

'There shall be a township caucus and a township party committee for each political party in every organized township in this state, as hereinafter provided. . . .'

However, 1954 PA 116, Sec. 343, supra, which served as one of the underpinnings for 2 OAG, 1956, No 2526, supra, was repealed by 1965 PA 212. 1954 PA 116, Sec. 382, supra, was later amended by 1973 PA 174 to read:

'If the charter of a village does not specify the time, manner, and means of nominating and electing its public officers, the village shall nominate and elect its officers in accordance with the provisions governing the selection of township officers, as provided in chapter 16 of this act, except that nomination by caucus or primary shall occur on the third Monday in February and village elections shall be held on the second Monday in March biennially in even numbered years or annually as provided in section 5 of chapter 2 of Act No. 3 of the Public Acts of 1895, being section 62.5 of the Michigan Compiled Laws.'

Thus, the statutory language which was interpreted to support the unquestioned right of local political parties to change their names no longer exists. Although a village may incorporate in its charter the method of nominating candidates pursuant to 1954 PA 116, supra, Sec. 381, such nominating procedures must be in accordance with the remaining provisions of 1954 PA 116, supra.

Pursuant to Const 1963, art 2, Sec. 4, the Legislature is vested with the authority to enact laws providing for the time, place and manner of all nominations and elections.

In carrying out this constitutional power the Legislature has established in the Michigan Election Law, 1954 PA 116, supra, a procedure by which political parties and their candidates qualify for placement on primary and general election ballots. Pertinent to the questions at hand are the statutory provisions for the qualification of new political parties.

1954 PA 116, supra, Sec. 685(1), specifically pertains to the establishment of new political parties. It states:

'The name of a candidate of a new political party shall not be printed upon the official ballots of an election unless the chairman and secretary of the state central committee of the party filed with the secretary of state, at least 3 months before the primary election, a certificate signed by them bearing the name of the party, and unless accompanying the certificate there was filed petitions bearing the signatures of registered and qualified electors equal to not less than 1% nor more than 4% of the number of votes, the successful candidate for secretary of state received at the last election in which a secretary of state was elected. . . .'

In addition, 1954 PA 116, supra, Sec. 532, provides that a party whose principal candidate receives less than 5% of the total vote cast for all candidates for the office of Secretary of State at the last preceding general election is precluded from utilizing the primary method of nominating future candidates, but rather, must nominate candidates by means of party caucuses or conventions.

In a suit challenging, inter alia, the constitutionality of 1954 PA 116, supra, Sec. 685, the United States Supreme Court in Hudler v Austin, 419 F Supp 1002, 1013 aff'd sub nom, Allen v Austin, 430 US 924; 97 S Ct 1541; 51 L Ed 2d 769, reh den, 431 US 925; 97 S Ct 2201; 53 L Ed 2d 240 (1976), affirmed a ruling which held that the statute served 'compelling state interests in avoiding voter confusion and the overcrowding and clogging of the state's election machinery, as well as in helping to insure the election winners are the choice of a majority of the voters.' (fna1)

The predecessor Michigan Election Law, 1925 PA 351, c 7, Sec. 4, as amended by 1943 PA 46, at least for purposes of entitling political parties to be placed on ballots, contemplated the organization of political parties on a state-wide basis. OAG, 1945-1946, No 0-4453, p 626 (March 6, 1946). Thus, the fact that a party wishes to call itself local or to run less than a full slate of candidates does not constitutionally obligate the state to provide a lower standard of ballot access for it. Hudler v Austin, supra.

In OAG, 1977-78, No 5306, p 439, 441 (May 8, 1978), it was concluded that political parties established for purely local purposes must meet the requirements set forth for state-wide political parties in order to qualify for a position on the ballot:

'Under Michigan law a party may qualify for the ballot in the various precincts throughout the state only by qualifying as a statewide party. There are no provisions for local or district parties, and I am aware of no interpretations of the state or federal constitutions which would compel the state to adopt procedures for localized parties. . . .'

Although local political parties may represent purely local interests in a village, it is clear that the political parties must comply with 1954 PA 116, Sec. 685, supra, to appear on the ballot. Political parties, whether state or local, which fail to comply with the requirements of the Michigan Election Law, supra, for a place on the ballot, are not entitled to placement of their respective nominees on the ballot.

In response to your first question, it is my opinion that local political parties must meet the requirements of 1954 PA 116, Sec. 685, supra, in order to nominate, by means of caucuses, their candidates for placement upon the village election ballot.

Your second question may be stated as follows:

2. If the local political parties do not qualify pursuant to 1954 PA 116, Sec. 685, supra, but nevertheless nominate candidates by means of party caucuses, does the board of county canvassers have the authority to refuse to certify the election results?

A board of county canvassers has the responsibility and duty to canvass the votes, prepare a statement of votes cast, and declare the results pursuant to 1954 PA 116, supra, Sec. 826, the only section dealing with local offices. It is well established that the duty to canvass an election imposed upon the board of county canvassers is purely ministerial and clerical. People ex rel Attorney General v Van Cleve, 1 Mich 363 (1850); Attorney General v Bd of Canvassers of Iron County, 64 Mich 607; 31 NW 539 (1887); McQuade v Furgason, 91 Mich 438; 51 NW 1073 (1892); May v Bd of Canvassers of Wayne County, 94 Mich 505; 54 NW 377 (1893); McLeod v State Bd of Canvassers, 304 Mich 120; 7 NW2d 240 (1942).

In McQuade v Furgason, supra, the Michigan Supreme Court stated:

'[I]t is the settled law of this State that canvassing boards are bound by the return, and cannot go behind it, especially for the purpose of determining frauds in the election. Their duties are purely ministerial and clerical. . . .' 91 Mich at 440.

It is clear that the ministerial duty of the board of county canvassers comprises the canvassing of the returns and the issuing of a certificate of election. Such duty does not vest the board of county canvassers with the authority to pass upon the legality of an election.

It is my opinion, in answer to your second question, that although the nominating process used by a village does not comport with state law, the board of county canvassers must, nevertheless, perform its ministerial duties of canvassing the votes and certifying the election results.

Frank J. Kelley

Attorney General

a1. In Socialist Workers Party v Secretary of State, 412 Mich 571; 317 NW2d 1 (1982), an additional requirement imposed by 1954 PA 116, supra, Secs. 560 and 560b, as added by 1976 PA 94, that the minor party receive 3/10 of 1% of the vote in the primary in order to be placed on the general ballot, was ruled unconstitutional. However, the petition requirement of 1954 PA 116, Sec. 685, supra, remains valid.