Opinion

Michigan Republican Party v. Secretary of State

Court
Michigan Court of Appeals
Filed
Aug 6, 2025
Status
Unpublished
Cited by
0 cases
Authority
More cited than 38.6%

The opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

MICHIGAN REPUBLICAN PARTY, UNPUBLISHED

REPUBLICAN NATIONAL COMMITTEE, and August 06, 2025

CINDY BERRY, 12:22 PM

Plaintiff-Appellants,

v No. 372995

Court of Claims

SECRETARY OF STATE and DIRECTOR OF LC No. 24-000165-MZ

ELECTIONS,

Defendant-Appellees.

Before: MARIANI, P.J., and MALDONADO and YOUNG, JJ.

PER CURIAM.

This case challenges the breadth of one of the rights foundational to our democracy—the

right to vote. But it does so narrowly. First, this case concerns itself with only a select group of

voters: individuals who vote in Michigan elections who do not presently live in Michigan. Second,

this case is temporally limited, too, focusing exclusively on obtaining relief in advance of the 2024

election, which has since come and gone and been certified. As a result, we affirm the Court of

Claims’ dismissal of plaintiffs’ claims under the doctrine of laches because, given how plaintiffs

chose to plead and pursue this lawsuit, there were no claims outside of those related to the

November 5, 2024 election. Anything beyond the laches holding by the Court of Claims was dicta

and we decline to address it here.

I. BACKGROUND

Before speaking to the procedural history of the present case, some general background on

voting is relevant. As mentioned earlier, this case is about individuals who do not presently live

in Michigan voting in Michigan elections. This phenomenon has long been contemplated by our

state and federal laws. Specifically, the Michigan Constitution provides “[e]very citizen of the

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United States who has attained the age of 21 years,[1] who has resided in this state six months, and

who meets the requirements of local residence provided by law, shall be an elector and qualified

to vote in any election except as otherwise provided in this constitution.” Const 1963, art 2, § 1.

Federal and state statutes have defined residency to include individuals who reside abroad due to

active service, as well as their accompanying spouse and dependent(s). Uniformed and Overseas

Citizens Absentee Voting Act (UOCAVA), 52 USC 20301 et seq., MCL 168.759a. Also pursuant

to statute, our Secretary of State issues an Elections Official Manual (the Manual) with instructions

for local officials about how to perform election duties,2 including the procedures regarding the

registration of military and overseas voters and those who accompany them.

It is the Michigan statute defining “the requirements of local residence” to include “a

spouse or dependent of an overseas voter who . . . is not a qualified and registered elector anywhere

in the United States” but is “accompanying that overseas voter,” MCL 168,759a(3), as well as

Chapter 7 of the Manual, that plaintiffs argue are constitutionally unsound.

Plaintiffs filed their complaint making these constitutional challenges on October 8, 2024,

at 4:09 p.m. It was titled “Verified Complaint for Expedited Declaratory and Injunctive Relief

Under MCR 2.605.” Broadly, plaintiffs’ complaint asserted that MCL 168.759a(3) is invalid

because it is contrary to the residency requirement in Const 1963, art 2, § 1. Plaintiffs also argued

that the Manual’s instructions were invalid because they were based on MCL 168.759a(3). The

complaint requested “injunctive and declaratory relief under MCR 2.605” in paragraph 38 and in

its request for relief requested a “speedy hearing” and advanced placement on the court’s calendar,

again citing to MCR 2.605.

Plaintiffs sought several forms of relief within that expedited timeframe. First, plaintiffs

sought a declaration that the Manual’s instructions unconstitutionally conflicted with Const 1963,

art 2, § 1. Second, plaintiffs requested that the Secretary of State be ordered to rescind the

improper instructions and issue a revised Manual that complied with Const 1963, art 2, § 1. Third,

plaintiffs sought to enjoin the Secretary of State from accepting voter-registration forms from any

person who could not confirm Michigan residency. Fourth, plaintiffs sought to require the

Secretary of State to update elections guidance. Last, plaintiffs sought to require the Secretary of

State to reject ballots cast by overseas voters who had not met Michigan’s residency requirements,

or alternatively, to segregate all ballots cast by overseas voters to determine whether those voters

met Michigan’s residency requirements.

The parties filed cross-motions for summary disposition. Defendants sought summary

disposition on the basis that plaintiffs had unreasonably delayed their challenge to longstanding

laws and instructions until the Secretary of State and voters would be unduly prejudiced by the

delay. Defendants argued that, even though the rebuttable presumption of laches did not apply,

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US Const, Am XXVI, § 1, provides: “The right of citizens of the United States, who are eighteen

years of age or older, to vote shall not be denied or abridged by the United States or by any State

on account of age.” No party disputes that citizens between 18 and 21 years of age are electors

and qualified to vote in elections.

2

MCL 168.765a(17).

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the broader doctrine of laches did. According to the Director of Elections, more than two million

absentee voter ballots (AVBs) had been issued as of September 30, 2024, and more than 611,000

had been returned. Defendants argued that it would be impossible to segregate the ballots that

plaintiffs were challenging. In response, plaintiffs argued that laches did not apply because they

had acted diligently and that the delay had not prejudiced defendants.

Later, in a footnote to a responsive pleading to defendants’ motion for summary

disposition, plaintiffs also argued that, regardless of any decision related to the November 5, 2024

election, they had requested relief that would be available after the election. Plaintiffs drew the

court’s attention to the general constitutionality of Michigan’s residency requirements and the

extent to which the Legislature was entitled to define residence. Plaintiffs further argued that, even

if the residency requirements of MCL 168.759a were constitutional, the Manual’s instructions

failed to include key limitations related to the statute, including that the spouse or dependent be

“accompanying” an overseas voter. And, as written, the instructions could allow nondependent

adults who are overseas to vote in Michigan elections. Regarding these arguments, plaintiffs

asserted that defendants were not prejudiced under the doctrine of laches because any prejudice

was related to only the November 5, 2024 general election. Plaintiffs also orally requested to

amend their complaint to include post-November 5, 2024 relief at the summary disposition

hearing. The Court of Claims did not respond to or permit that amendment.

The Court of Claims opined that “it is hard to imagine a more prejudicial situation” than

that arising out of plaintiffs’ complaint, filed less than a month in advance of the 2024 election.

The Court of Claims found that all “requested relief is barred by the doctrine of laches.” Despite

that, because the issue was likely to recur, the Court of Claims considered plaintiffs’ challenge on

the merits, and granted summary disposition to defendants. This appeal followed.

II. STANDARD OF REVIEW

This Court reviews de novo the trial court’s equitable decision regarding the doctrine of

laches but reviews for clear error the trial court’s findings of fact to support its decision. Tenneco

Inc v Amerisure Mut Ins Co, 281 Mich App 429, 444; 761 NW2d 846 (2008). “A decision is

clearly erroneous if, although there is evidence to support it, this Court is left with a definite and

firm conviction that a mistake was made.” Id. Under de novo review, this Court reviews legal

issues without deference to the lower court. Wright v Genesee Co, 504 Mich 410, 417; 934 NW2d

805 (2019).

III. LACHES

The doctrine of laches is an equitable doctrine that applies when a party has failed to make

a claim or enforce a right at the proper time. Nykoriak v Napoleon, 334 Mich App 370, 382; 964

NW2d 895 (2020). The doctrine estops a party “from asserting a right it could have and should

have asserted earlier.” Home-Owners Ins Co v Perkins, 328 Mich App 570, 589; 939 NW2d 705

(2019). The doctrine “is an equitable tool used to provide a remedy for the inconvenience resulting

from the plaintiff’s delay in asserting a legal right that was practicable to assert.” Id. (quotation

marks and citation omitted). A rebuttable presumption of laches applies to an election-related civil

action filed less than 28 days before the affected election:

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In all civil actions brought in any circuit court of this state affecting

elections, dates of elections, candidates, qualifications of candidates, ballots or

questions on ballots, there shall be a rebuttable presumption of laches if the action

is commenced less than 28 days prior to the date of the election affected. This

section shall not apply to actions brought after the date of the affected election.

[MCL 691.1031.]

By filing their complaint on October 8, 2024, at 4:09 p.m., plaintiffs narrowly avoided this

presumption. However, the doctrine of laches may still apply to an election-related claim even

when this rebuttable presumption does not apply. Nykoriak, 334 Mich App at 383. “To

successfully assert laches as an affirmative defense, a defendant must demonstrate prejudice

occasioned by the delay.” Home-Owners Ins Co, 328 Mich App at 589 (quotation marks and

citation omitted).

As the Court of Claims observed:

Plaintiffs filed their action at the end of the day on October 8, 2024. While this was

28 days before the November 5, 2024 general election, the late-in-the-day filing

ensured that this Court had only 27 days to consider the issue. Plaintiffs did not

serve defendants until October 10, leaving only 25 days until the general election.

Notably, plaintiffs filed their complaint 17 days after the final day to send AVBs to

absent uniformed services and overseas voters, as well as the subject group

members.

And on appeal, plaintiffs do not contest the prejudice analysis as to the November 2024 election.

The question before us is whether the complaint adequately requested any relief beyond the

November 2024 election. We find that it did not and the Court of Claims’ ruling on laches was

correct as a matter of law.

Simply stated, plaintiffs are the masters of their complaint, and they did not expressly

allege a claim or expressly request relief outside of the November 2024 election. Instead, they

specifically tailored their lawsuit to that election. As mentioned above and detailed in defendants’

appellate brief, plaintiffs made clear the bed they made—plaintiffs filed a “Verified Complaint for

Expedited Declaratory and Injunctive Relief under MCR 2.605.” In their “Parties, Jurisdiction,

Venue” section, plaintiffs stressed their efforts in connection with the November 2024 election

and the effect their requested relief would have on that election. They also alleged “because no

absent voter ballots have been tabulated, there is still time to address [the alleged

unconstitutionality of the Manual]. Therefore, a decision from this Court will redress the violation

of Plaintiffs’ rights under the Michigan Constitution and will also guide Plaintiffs’ future conduct

in this regard for the November 2024 general election and beyond.” And in their request for relief,

plaintiffs requested that the Court of Clams “order ‘a speedy hearing’ of this action and ‘advance

it on the calendar’ as provided under MCR 2.605(D), and that it issue the following relief,” which

included:

D. Order the Secretary to take all steps necessary to remedy the harm caused by

her unconstitutional actions, including:

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Issuing all necessary directives and guidance to local election officials, including

county, city, and township clerks;

Updating all public facing websites and voter registration portals within her custody

or control to reflect the constitutional prohibition on non-residents voting in

Michigan elections; and

Updating all necessary voter registration forms;

E. Reject the ballots cast by overseas voters who never resided in Michigan,

including ballots of overseas voters who submitted a Federal Post Card Application

or Federal Write-In Absentee Ballot and checked the box affirming: “I have never

lived in the United States.”

F. In the alternative, direct the Secretary to segregate ballots cast by overseas voters

who have never resided in Michigan including ballots of overseas voters who

submitted a Federal Post Card Application or Federal Write-In Absentee Ballot and

checked the box affirming, “I have never lived in the United States,” so that

Plaintiffs and this Court may ascertain the scope of the constitutional violation and

whether it effects the election’s outcome[.]

Based on the language in their own pleading, plaintiffs sought a complete and final resolution of

their complaint on an expedited basis, with relief directed at the November 5, 2024 general

election. As was established through questioning at oral argument in this Court, plaintiffs’ desire

for relief applicable to the November 2024 election did not require such a highly targeted and fully

expedited approach; plaintiffs could have filed a complaint on a regular track and separately

requested preliminary injunctive relief as to the November 2024 election. They did not. By the

time plaintiffs attempted to tack on additional requests for relief, they had already received what

they asked for—an expedited hearing on their bid for final judgment and relief in advance of the

November 2024 election. The Court of Claims correctly applied laches to bar this expedited

lawsuit. We affirm.

As for the Court of Claims’ analysis of the merits of plaintiffs’ remaining constitutional

and statutory claims, we agree with the sentiments provided by both parties at oral argument before

this Court: any such discussion on the merits was dicta. We also agree with defendants, as they

stated in their brief and again at oral argument, that “to the extent Plaintiffs argue the Court of

Claims somehow barred them from raising their constitutional claim in the future, they

misapprehend the court’s ruling.” The instant lawsuit was properly dismissed on the basis of

laches; any further discussion of plaintiffs’ claims was unnecessary to that disposition below and

is unnecessary to our affirmance of it here. The adjudication of the merits of any such claims can

await another day and another lawsuit.

Affirmed.

/s/ Philip P. Mariani

/s/ Allie Greenleaf Maldonado

/s/ Adrienne N. Young

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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