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STATE OF MICHIGAN

IN THE COURT OF APPEALS


DONALD J. TRUMP,

Case No.

Plaintiff,

COMPLAINT FOR MANDAMUS AND


INJUNCTIVE RELIEF
This is a Complaint for Mandamus against
the Michigan Board of State Canvassers to
require immediate compliance with
mandatory and clear provisions of the
Michigan Election Law. Accompanying this
Complaint is a Motion for Immediate
Consideration.

MICHIGAN BOARD OF STATE


CANVASSERS and CHRISTOPHER
THOMAS, Director of Elections, in his
official capacity,
Defendants.

Gary P. Gordon (P26290)


Jason T. Hanselman (P61813)
Dykema Gossett, PLLC
Attorneys for Donald J. Trump
201 Townsend Street, Suite 900
Lansing, MI 48933
(517) 374-9100

Donald F. McGahn II
General Counsel
Donald J. Trump for President, Inc.
51 Louisiana Ave., N.W.
Washington, D.C. 200001-2113
(202) 879-3939
Chad A. Readler
Jones Day
Attorney for Donald J. Trump
325 John H. McConnell Blvd., Suite 600
Columbus, OH, 43221
(614) 469-3939
Pro hac vice application pending

Denise Barton (P41535)


Assistant Attorney General
Michigan Department of Attorney General
525 W. Ottawa Avenue
G. Mennen Williams Bldg.
Lansing, MI 48933
(517) 373-6434

Eric E. Doster (P41782)


Doster Law Offices, PLLC
Attorney for Donald J. Trump
2145 Commons Parkway
Okemos, MI 48864
(517) 483-2296

Mark Brewer (P35661)


Goodman Acker PC
Attorneys for Jill Stein for President
17000 W 10 Mile Rd Fl 2
Southfield, MI 48075-2923
John D. Pirich (P23204)
Honigman Miller Schwartz and Cohn LLP
Attorneys for Donald J. Trump
222 North Washington Square, Suite 400
Lansing, Michigan 48933
(517) 377-0712

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COMPLAINT FOR MANDAMUS,


DECLARATORY RELIEF, AND INJUNCTIVE RELIEF
President-Elect Donald J. Trump (Trump), for his complaint for a writ of
mandamus, declaratory relief, and injunctive relief against the Michigan Board of State
Canvassers (the Board) and Director of Elections Christopher Thomas (the Director),

NATURE OF THE CASE


1.

This is an original action by President-Elect Donald J. Trump in which the

Plaintiff seeks a writ of mandamus to compel the Board and the Director to not undertake a
recount or, in the alternative, to compel the Board to undertake a recount using election machine
counting, rather than hand counting all ballots.
2.

Green Party Presidential Candidate Dr. Jill Stein (Stein) received 1.07% of

Michigans vote for President in the November 2016 Election, yet filed a petition (the
Petition) with the Director seeking a hand recount of approximately 4.8 million votes in
Michigans Presidential election. (Exhibit 1)
3.

The Petition is five sentences long and does not identify: (1) how Stein could

be aggrieved under MCL 168.879(1)(b); (2) the nature and character of fraud or mistakes
alleged; or (3) the counties, cities, or townships and the precincts in which fraud or mistake
exist.
4.

The Petition fails to state with particularity any allegation of fraud or mistake

or even describe the potential basis for such fraud or mistake.

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states as follows:

NECESSITY FOR IMMEDIATE ACTION


5.

There is an immediate need for this Court to adjudicate the merits of this case

on an expedited basis because commencement of a recount costing tens of millions of


dollars is imminent.
The Michigan Supreme Court has recognized the importance of considering

election-related cases on an expedited basis. Scott v Director of Elections, 490 Mich 888,
889; 804 NW2d 119 (2011).
7.

Additionally, MCR 7.213(C)(4) requires election-related cases to be expedited

and given priority on the Courts calendar.


8.

Accordingly, pursuant to MCR 3.305(C), Trump respectfully requests that

this Court issue an Order for the Board and the Director to Show Cause why a writ of
mandamus, declaratory relief, and injunctive shall not issue. Plaintiff further requests that
the Courts Order mandate briefing within 48 hours to provide the Court adequate time to
decide this case before the recount commences.
JURISDICTION
9.

MCL 600.4401, MCR 3.305(A), and MCR 7.203(C)(2) allow Plaintiffs to seek a

writ of mandamus against state officers in this Court.


10.

Because there exists an actual controversy otherwise within the jurisdiction of

this Court, the Court has subject matter jurisdiction over Plaintiffs requests for injunctive
relief and a declaratory judgment pursuant to MCR 2.605(A).
PARTIES
11.

Trump was a candidate for President of the United States of America and is

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6.

now the President-Elect. President-Elect Trump will be sworn-in as the 45th President of the
United States of America on January 20, 2017.
12.

The Board is a state board of four members with responsibility under the Michigan

Election Code for, among other things, determining whether to certify recount petitions.
The Director is Michigans Director of Elections and is vested with the authority

to administer and supervise the State of Michigans election laws under the supervision of the
Secretary of State, including the conduct of recounts. MCL 168.32. The Director is sued only in
his official capacity.
GENERAL ALLEGATIONS
The Boards Duties Regarding Recount Petitions
14.

The Michigan Election Law allows a candidate to ask the Board to recount the

results of a Presidential election.


15.

Specifically, the Michigan Election Law states that a candidate may petition for a

recount of the votes if all of the following requirements are met:


(a)

The office is an office for which the votes are canvassed by the board of
state canvassers under section 841 or is the office of representative in
Congress, state representative, or state senator for a district located wholly
within 1 county.

(b)

The petition alleges that the candidate is aggrieved on account of fraud or


mistake in the canvass of the votes by the inspectors of election or the
returns made by the inspectors, or by a board of county canvassers or the
board of state canvassers. The petition shall contain specific allegations of
wrongdoing only if evidence of that wrongdoing is available to the
petitioner. If evidence of wrongdoing is not available, the petitioner is
only required to allege fraud or a mistake in the petition without further
specification.

(c)

Except as otherwise provided in this subdivision, the petition for a recount


is filed not later than 48 hours following the completion of the canvass of
votes cast at an election.

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13.

The petition is presented to and filed with the secretary of state.

(e)

The petition is written or printed and is signed and sworn to by the


candidate.

(f)

The petition sets forth as nearly as possible the nature and character of the
fraud or mistakes alleged and the counties, cities, or townships and the
precincts in which they exist.

(g)

The petition specifies the counties, cities, townships, and precincts in


which the recount is requested. MCL 168.879.

16.

If a candidate files a recount petition and pays the deposit under MCL 168.879,

the Michigan Secretary of State must give notice of the recount petition to each opposing
candidate within 48 hours after the filing of the petition MCL 168.882(1).
17.

An opposing candidate may file objections to the recount petition with the Board,

setting forth objections to the recount petition. MCL 168.882(3).


18.

Upon receiving an objection to a recount petition, the Board must notify the

petitioner and the objecting candidate of the date of the Board hearing to consider the objections.
Id.
19.

The Board must allow the recount petitioner and the objecting candidate to

present oral or written, or both, arguments on the objections raised to the recount petition at the
hearing. Id.
20.

Not later than 5 business days following the hearing, the Board must rule on the

objections raised to the recount petition. Id.


21.

The recount cannot begin a recount unless 2 or more business days have elapsed

since the Board ruled on the objections under this subsection, if applicable. Id.

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(d)

The 2016 Election Results


22.

On November 9, 2016, Hillary Clinton conceded the presidential election to

Donald J. Trump.
23.

In Michigan, the Boards of County Canvassers in each county canvassed the votes

included in the election totals.


24.

Stein, who never finished so high as third in any state Presidential election,

nonetheless began raising funds to conduct recounts in various states.


25.

On November 28, 2016, upon completion of the canvass, the Board certified the

results of the election.


26.

The final vote tallies in the canvass included 2,279,543 votes for President-elect

Trump, 2,268,839 votes for Hillary Clinton, 172,136 votes for Libertarian candidate Gary
Johnson, and 51,463 votes for Stein.
SECRETARY

OF

See 2016 Presidential Election Results, MICHIGAN

STATE (last visited Nov. 30, 2016), http://www.michigan.gov/sos/0,4670,7-127-

1633_8722_76444-397762--,00.html.
27.

That same day, although no formal recount petition had yet been filed by Stein,

the Board indicated that the anticipated statewide recount and the Director indicated that recount
would be conducted by hand.
28.

The Board directed the Director to commence a recount and delegated to the

Director and his staff the authority to commence preparations for that recount before receiving
the Recount Petition.
29.

While Michigan law mandates that recount petitions be filed no later than 48

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cast in their precincts, verifying provisional ballots and ensuring that every valid vote cast was

hours following the competition of the canvass of votes, MCL 168.879(c), it puts no limitations
on filing earlier, including before the canvass of votes, Santia v Bd of State Canvassers, 152
Mich App 1; 391 NW2d 504 (1986).
30.

Nonetheless, rather than filing any time between November 8 and certification on

Dr. Jill Steins Recount Petition


31.

Two days after the Board certified the votesat almost the last possible

momentStein filed a recount petition with the Board (the Recount Petition). See Exhibit 1.
32.

It is unclear what steps the Director has taken to analyze the sufficiency of the

Recount Petition with regard to applicable statutory requirements and what steps the Director has
taken to facilitate the commencement of the recount.
33.

What is clear is that, over the course of that 48 hours, Stein managed to craft only

a 4-paragraph Recount Petition that does not: (1) explain how Stein is aggrieved; or (2) set forth
as near as possible the nature and character of the fraud or mistakes alleged.
34.

Specifically, the Recount Petition states merely:

I, Jill Stein, a candidate for the office of the President of the United States in an
election held on November 8, 2016, petition the Board of State Canvassers for a
recount of the votes case for this office. The undersigned members of my slate of
electors join me in this Petition.
I and the undersigned members of my slate of electors, individually and
collectively, are aggrieved on account of fraud or mistake in the canvass of the
votes by the inspectors of election, and/or the returns made by the inspectors,
and/or by the Board of County Canvassers, and/or by the Board of State
Canvassers.
I request that all of the precincts and absent voter counting board (AVCB)
precincts within the State of Michigan be recounted by hand count. A list of these
precincts is attached as Exhibit 1.

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November 28, Stein waited for the Board to meet, then waited a few more days to file.

35.

Steins Recount Petition was notarized in Massachusetts.

36.

Under Massachusetts law, a jurat must take substantially the following form:

On this _____________day of_____________, 20______, before me, the


undersigned Notary Public, personally appeared _________________(name of
document signer),proved to me through satisfactory evidence of identification,
which were____________________, to be the person who signed the preceding
or attached document in my presence, and who swore or affirmed to me that the
contents of the document are truthful and accurate to the best of (his) (her)
knowledge and belief.
___________________(official signature and seal of Notary). See Apostilles and
Certificates of Appointment, Exhibit 2.
37.

The jurat on Steins petition does not state that Stein personally appeared.

38.

The Recount Petition also does not list the forms of identification Stein used. The

notarization is therefore invalid and the Recount Petition must be rejected because Stein has
failed to sign and swear to the Recount Petition as the candidate.
39.

On December 1, 2016, Trump filed Objections to the Petition. See Exhibit 3.

40.

Stein has not alleged that she can win Michigans presidential election as the

result of a recount, but instead contends that only vague assertions of being aggrieved are
sufficient to trigger a recount of nearly 5 million votes.
41.

Also on December 1, 2016, Stein filed a response to Trumps Objections to the

Petition. See Exhibit 4.


42.

On December 2, 2016, the Board met to decide whether to certify the Recount

Petition and direct the Bureau of Elections to undertake a recount.


43.

At the December 2 meeting, attorneys for Trump detailed the various legal

deficiencies with the Recount Petition. One Board member made a motion to not certify Steins
Recount Petition because it failed to fulfill the statutory prerequisites for a recount petition under

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My deposit of $125 per precinct is enclosed.

MCL 168.879.
44.

That motion was seconded by another Board member, however, the Board

ultimately deadlocked and failed to reject the Petition.


The Electoral College
Federal laws safe-harbor statute requires that a state determine its electors at

least six days before the time fixed for the meeting of the electors. 3 USC 5.
46.

Michigan, by requiring its electors to convene and vote within the time-frame

required by that statute, see MCL 168.47, has evinced its intent to come within its safe harbor.
47.

This year, the meeting of the electors will occur on December 19, 2016. 3 USC

48.

Because Michigan has indicated its intent to participate in the electoral process

5.

described by 3 USC 5, any controversy or contest that is designed to lead to a conclusive


selection of electors [must] be completed by December 13. Bush v. Gore, 531 US 98, 110; 121
S Ct 525; 148 L Ed 2d 388 (2000).
49.

Reading MCL 168.879 to require recounts that cannot be completed during the

safe-harbor period would conflict with MCL 168.47.


50.

That conflict is easily avoided, however, by reading Michigans recount

provisions as implicitly prohibiting recounts initiated so late in the process that they cannot be
reliably completed before the 3 USC 5 deadline expires.
COUNT I
MANDAMUS
51.

Trump re-alleges the preceding paragraphs as if fully set forth herein.

52.

Because the Board cannot undertake a recount premised upon a petition that does

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45.

not comply with MCL 168.879 and the results the Board previously certified recognize Trump as
the winner of Michigans Presidential Election, Trump has a clear legal right to the Board
declining to undertake a recount based on the statutorily non-compliant Recount Petition.
53.

Because the Recount Petition does not comply with MCL 168.879, the Board has

54.

The Board rejecting the Recount Petition for failure to comply with MCL 168.879

is ministerial and involves no exercise of discretion or judgment.


55.

Stein asserts that the Board should exercise discretion ignore the clear statutory

directive and instead conduct a recount for the purpose of academic exercise even though Stein:
(1) could not possibly win and, therefore, has no injury and cannot be aggrieved; and (2) fails
to set forth the nature and character of any fraud or mistakes that purportedly occurred.
56.

At a Board Hearing on November 27, 2006, Director of Elections Chris Thomas

explained that the Bureau of Elections had rejected a recount petition because the petitioner was
not an aggrieved candidate given that the candidate could not actually affect the outcome of the
election. (Exhibit 5)
57.

Similarly, here, Stein, with only 1.07% of the vote and no possible opportunity to

earn Michigans electors or become President, seeks to thrust a costly and time consuming
recount upon Michigan citizens.
58.

Stein urges the Board to expend tens of millions of dollars on a wild goose chase

that even Stein cannot identify.


59.

Stein also suggests that the Board ignore plain statutory language requiring that a

recount petition be sworn by the candidate and encourages the Board to instead accept an

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a clear legal duty to reject the Recount Petition.

incomplete Notary Public jurat.


MCL 168.878 states:

Nothing in the following sections of this chapter contained shall be construed to


repeal any action or remedy which may now exist by reference of any controversy
to the courts, except that any proceeding intended to restrain, enjoin, modify,
control or otherwise interfere with the action of the board of state canvassers, the
board of county canvassers or any other representative of the board of state
canvassers operating under the provisions of the following sections of this
chapter, shall be instituted only against the board of state canvassers and by no
other action than mandamus.
61.

Trump, therefore, has no other adequate legal or equitable remedy to compel the

Boards performance.
62.

Mandamus is the appropriate remedy for compelling the Board to perform its

ministerial duties with regard to the statutory criteria necessary to conduct a recount.
63.

Without immediate action by this Court, Trump will continue to suffer irreparable

injury.
COUNT II
INJUNCTIVE RELIEF
64.

Trump re-alleges the preceding paragraphs as if fully set forth herein.

65.

By refusing to reject the Recount Petition for failure to comply with Michigan

Election Law, the Board and the Director are clearly disregarding Michigan Election Law.
66.

By authorizing and taking steps to undertake a recount in violation of Michigan

Election Law, the Board and the Directors actions immediately, adversely and irreparably affect
Trumps interests and those of all Michigan citizens.
67.

Unless the Board and the Director are immediately restrained, such irreparable

injury will continue.

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60.

68.

Because no monetary value can be placed on Trumps interest in the Board and

the Director properly applying the Michigan Election Law, Trump has no adequate remedy at
law.
69.

Issuing a preliminary injunction would not cause substantial harm to others

Michigan Election Law by not undertaking a recount in violation thereof.


70.

Stein cannot possibly suffer any harm by the issuance of a preliminary injunction

because she cannot reasonably identify any possible way postponing the recount while this Court
evaluates whether the Recount Petition complies with the Michigan Election Law.
71.

Balancing the equities here, Stein could have sought a recount any time after the

election, but waited until nearly the last moment, so Steins own delay has placed the entire state
at risk of a non-compliant recount that could have been resolved weeks ago if Stein had not
waited to file.
72.

The issuance of a preliminary injunction serves the public interest by: (1) ensuring

the integrity of Michigans election process by preventing a recount premised on a Recount


Petition that does not comply with the Michigan Election Law; and (2) not requiring taxpayers to
pay for a burdensome recount that cannot possibly result in Stein winning the election.
COUNT III
TEMPORARY RESTRAINING ORDER
73.

Trump re-alleges the preceding paragraphs as if fully set forth herein.

74.

Immediate and irreparable injury, loss, or damage will result to Trump and

Michigan citizens if the recount proceeds.


75.

Specifically, absent the issuance of a temporary restraining order, because the

Board has already directed the Director to proceed with a recount, all eighty-three Michigan
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because Trump merely asks this Court to order the Board and the Director to follow the

counties must over the weekend prepare for a recount to begin early next week that will cost tens
of millions of dollars.
76.

Upon information and belief, county clerks around Michigan are in the process of

renting halls and equipment and hiring and training temporary employees to work at the recounts

77.

State and local governments should not be burdened by incurring expenses for a

recount that should never occur.


78.

The only way to prevent local governments from incurring expenses while this

Court considers Trumps request is to grant a Temporary Restraining Order against the Director
from undertaking a recount.
WHEREFORE, Trump respectfully requests that this Court:
a.

Grant Trumps Motion for Immediate Consideration.

b.

Issue a writ of mandamus directing the Board to comply with MCL 168.879s

requirements that: (1) a candidate seeking a recount must be aggrieved; (2) in order to be
aggrieved, a candidate must set forth an actual harm such that a recount of election results
could change the result in that candidates favor; (3) the petition sets forth as nearly as possible
the nature and character of the fraud or mistakes that occurred; and (4) a petition be sworn by
having a properly notarization.
c.

Declare that: (1) a candidate seeking a recount must be aggrieved; (2) in order

to be aggrieved, a candidate must set forth an actual harm such that a recount of election
results could change the result in that candidates favor; (3) a recount petition must forth as
nearly as possible the nature and character of the fraud or mistakes that occurred; (4) to be

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being scheduled in every county.

properly sworn under MCL 168.879, that petition must be properly notarized; (5) because it is
impossible for a hand recount to be completed by December 13, 2016, any recount must be done
using voting machines rather than a hand count; (6) if the recount is not complete by noon on
December 13, 2016, the Board shall ensure compliance with MCL 168.47 by certifying

d.

Issue an Ex Parte Temporary Restraining Order enjoining the Director from

conducting a recount based upon Steins Recount Petition.


e.

Issue an Order, Preliminary Injunction, and Permanent Injunction enjoining the

Director from conducting a recount based upon Steins Recount Petition.


f.

Issue such injunctive or other relief as this Court deems just and equitable.
Respectfully submitted,

Dated: December 2, 2016

/s/ Gary P. Gordon


Gary P. Gordon (P26290)
Jason T. Hanselman (P61813)
DYKEMA GOSSETT PLLC
Attorneys for Donald J. Trump
201 Townsend Street, Suite 900
Lansing, MI 48933
Telephone: (517) 374-9133
Eric E. Doster (P41782)
DOSTER LAW OFFICES, PLLC
Attorney for Donald J. Trump
2145 Commons Parkway
Okemos, MI 48864
Telephone: (517) 977-0147
Donald F. McGahn II
Counsel
Donald J. Trump for President, Inc.
51 Louisiana Ave., N.W.
Washington, D.C. 200001-2113
(202) 879-3939

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Michigans electors based on the Boards November 28, 2016 certification.

John D. Pirich (P23204)


HONIGMAN MILLER SCHWARTZ COHN
Attorney for Donald J. Trump
222 North Washington Square Suite 400
Lansing, MI 48933
Telephone: (517) 377-0712
4833-6009-0173.8
ID\HANSELMAN, JASON - 019956\000999

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Chad A. Readler
JONES DAY
Attorney for Donald J. Trump
325 John H. McConnell Blvd., Suite 600
Columbus, OH, 43221
(614) 469-3939
Pro hac vice application pending

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