Muhith Mahmood v. City of Hamtramck

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

MUHITH MAHMOOD, UNPUBLISHED

March 27, 2026

Plaintiff-Appellant, 8:34 AM

V No. 378814

Wayne Circuit Court

CITY OF HAMTRAMCK and WAYNE COUNTY LC No. 25-018688-CZ

BOARD OF CANVASSERS,

Defendants-Appellees,

and

ADAM ALHARBI,

Intervening Defendant-Appellee.

Before: BORRELLO, P.J., and O’BRIEN and WALLACE, JJ.

O’BRIEN, J. (dissenting).

Plaintiff asked the trial court to issue a writ of mandamus “order[ing] the tabulation of the

37 ballots” that were not counted as described by the majority. The trial court denied this request,

concluding that the Wayne County Boad of Canvassers had discretion whether to tabulate the 37

ballots, making a writ of mandamus improper. The majority concludes that “the trial court abused

its discretion by failing to grant the writ of mandamus.” I disagree and therefore dissent.

A writ of mandamus is an extraordinary remedy, and the party seeking such a writ must

establish that

(1) the party seeking the writ “has a clear legal right to the performance of the duty

sought to be compelled,” (2) the defendant has a clear legal duty to perform the act

requested, (3) the act is ministerial, that is, it does not involve discretion or

judgment, and (4) no other legal or equitable remedy exists that might achieve the

same result. [Southfield Ed Ass’n v Bd of Ed of Southfield Pub Schs, 320 Mich App

353, 378; 909 NW2d 1 (2017) (citation omitted).]

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Plaintiff is asking for a writ of mandamus ordering the Wayne County Board of Canvassers to

tabulate the 37 uncounted ballots, so plaintiff must establish that the board of county canvassers

had a clear legal duty to perform this act.

In plaintiff’s complaint, he relied on MCL 168.765a(4) to support the existence of this

duty.1 That subsection states, in pertinent part:

In a city or township that uses absent voter counting boards under this

section, the absent voter ballots must be counted in the manner provided in this

section and, except as otherwise provided in section 764d, absent voter ballots must

not be delivered to the polling places. [MCL 168.765a(4).]

The section of the Michigan Election Law, MCL 168.1, et seq., in which this subsection appears

addresses absent voter counting boards, and the above subsection imposes a duty on such boards,

not the board of county canvassers.

The majority relies heavily on MCL 168.814, which states:

A ballot cast by an eligible elector must not be rejected or otherwise not

counted in a canvass, recount, or court order altering the certification of a

canvassing board on the grounds that an election official failed to comply with a

directive set forth in this act unless that ballot is otherwise ineligible under this act

or federal law.

This section has never been cited by plaintiff or amicus who filed in support of plaintiff.

Regardless, the majority emphasizes the final portion of this provision, effectively reasoning that

a ballot must be counted in a canvass “unless that ballot is otherwise ineligible under this act.” I

do not believe this section is relevant, however, because it only applies if a ballot is not canvassed

“on the grounds that an election official failed to comply with a directive set forth in this act.”

It is true that the 37 uncounted ballots were not stored in compliance with MCL 168.810a—

titled, “Safeguarding of election materials”—but the problem with the 37 uncounted ballots is not

solely that they were stored in an unsecured location. The bigger issue is that the city clerk

confirmed that unauthorized individuals were in the clerk’s office and, while there, had access to

the unsecured ballots, so the clerk could no longer confirm the integrity of the ballots. In other

words, the ballots were not “merely” stored in an unsecured location in violation of MCL 168.810a,

but the clerk confirmed that unauthorized individuals had access to the unsecured ballots. This

confirmed unauthorized access to the 37 uncounted ballots provided a basis for not counting the

ballots beyond the fact that the city clerk failed to properly store them as required by the Michigan

Election Law.2

1

Plaintiff does not rely on this statute in his brief on appeal but cites it in his reply brief.

2

I do not find this Court’s opinion in Gracey v Grosse Pointe Farms Clerk, 182 Mich App 193;

452 NW2d 471 (1989), particularly helpful to resolving this case. The procedural history of that

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This brings us to the basis for the trial court’s ruling—MCL 168.823. The court reasoned

that Subsection (3) of this statute provided the Board of Canvassers discretion to act how it did.

MCL 168.823(3) provides, in relevant part:

The board of county canvassers shall correct obvious mathematical errors

in the tallies and returns. The board of county canvassers may, if necessary for a

proper determination, summon the election inspectors before them, and require

them to count any ballots that the election inspectors failed to count, to make correct

returns in case, in the judgment of the board of county canvassers after examining

the returns, poll lists, or tally sheets, the returns already made are incorrect or

incomplete, and the board of county canvassers shall canvass the votes from the

corrected returns. In the alternative to summoning the election inspectors before

them, the board of county canvassers may designate staff members from the county

clerk’s office to count any ballots that the election inspectors failed to count, to

make correct returns in case, in the judgment of the board of county canvassers after

examining the returns, poll lists, or tally sheets, the returns already made are

incorrect or incomplete, and the board of county canvassers shall canvass the votes

from the corrected returns. [Emphasis added.]

This subsection provided a means by which the board of county canvassers could have tabulated

the 37 uncounted ballots. But, as the emphasized portions demonstrate, aside from correcting any

obvious mathematical errors, the procedures in MCL 168.823(3) are discretionary. See Wilcoxon

v City of Detroit Election Comm, 301 Mich App 619, 631; 838 NW2d 183 (2013) (explaining that

it is well-established that the use of the words “may” and “judgment” denote discretionary

conduct). It follows that the Wayne County Board of Canvassers had discretion to tabulate the 37

uncounted ballots “if necessary for a proper determination,” but the decision to do so was left to

“the judgment of the board of county canvassers.” MCL 168.823(3). A writ of mandamus cannot

lie if the act requested to be performed “involve[s] discretion or judgment,” Southfield Ed Ass’n,

320 Mich App at 378, so MCL 168.823(3) cannot form the basis for a writ of mandamus ordering

the Wayne County Board of Canvassers to tabulate the 37 uncounted ballots.

In plaintiff’s brief on appeal, he grounds his duty argument entirely in Const 1963, art 2,

§ 4(1). Plaintiff emphasizes in particular Const 1963, art 2, § 4(1)(a)’s language that all citizens

who are electors qualified to vote in Michigan shall have “[t]he fundamental right to vote,” and

Const 1963, art 2, § 4(1)(h)’s language extending this right “to vote an absent voter ballot.” This

case is a quagmire, but at bottom, the contested absentee ballots were counted as part of a recount,

and the plaintiff was seeking to have the Wayne County Board of Canvassers certify the results of

the recount, while the intervenor was seeking to have the contested absentee ballots thrown out

because they were not properly delivered to the clerk. Id. at 199-201. This Court explained that

the absentee ballots being improperly delivered to the clerk did not invalidate them but merely

subjected them to challenge pursuant to MCL 168.745. Id. at 203, 209. I do not understand anyone

in this case to be arguing that the 37 uncounted ballots should be rejected or are otherwise invalid.

The question, as I understand it, is whether the Wayne County Board of Canvassers had a duty to

tabulate the 37 uncounted ballots as requested by plaintiff in his writ of mandamus.

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fundamental right to vote, plaintiff rightly observes, includes the right to have that vote counted.

See In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1,

47; 740 NW2d 444 (2007) (CAVANAGH, J., dissenting) (“The fundamental right to vote

encompasses the right to actually have those votes counted”); Reynolds v Sims, 377 US 533, 554;

84 S Ct 1362; 12 L Ed 2d 506 (1964). After citing these principles, plaintiff concludes, without

further explanation, that “defendants had a duty to count” the 37 uncounted ballots.

The broad principles on which plaintiff relies do not compel the conclusion that the Wayne

County Board of Canvassers had a clear legal duty to tabulate the 37 uncounted ballots whose

integrity the clerk could not confirm. “Within the meaning of the rule of mandamus, a ‘clear, legal

right’ is one clearly founded in, or granted by, law; a right which is inferable as a matter of law

from uncontroverted facts regardless of the difficulty of the legal question to be decided.” Warren

City Council v Fouts, 345 Mich App 105, 124; 4 NW3d 79 (2022) (quotation marks and citation

omitted). It is simply not inferable as a matter of law that a person’s right to have their vote

counted imposed a clear legal duty on the Wayne County Board of Canvassers, in particular, to

tabulate the uncounted ballots.

In summary, after reviewing all of the laws cited by the parties and the majority, I am not

persuaded that the Wayne County Board of Canvassers had a clear legal duty to tabulate the 37

uncounted ballots as plaintiff requested in his writ of mandamus.3 The problem as I see it is not

that the clerk failed to store the ballots in compliance with the Michigan Election Law but that

unauthorized individuals were confirmed to have had access to the unsecured ballots, as a result

of which the clerk could not confirm the integrity of the uncounted ballots.4 In situations like this,

the ballots may still be tabulated, but only at the discretion of the board of county canvassers under

MCL 168.823(3). That statute, by its terms, leaves the exercise of this ability “in the judgment of

the board of county canvassers,” so it cannot be the basis for a writ of mandamus. See Southfield

Ed Ass’n, 320 Mich App at 378 (explaining that a clear legal duty must “not involve discretion or

3

The majority does not reach plaintiff’s arguments that the trial court erred by failing to grant

plaintiff a declaratory judgment or injunctive relief, so I do not reach those issues either.

4

The fact that the clerk cannot confirm the integrity of the 37 uncounted ballots is a problem, and

I do not believe that the ballot-challenge procedures under MCL 168.745—which the majority

orders the 37 uncounted ballots be subjected to—sufficiently address the issue. When a ballot is

challenged, the basis for the challenge is whether the person was “an unqualified voter,” MCL

168.745, and such a challenge is resolved if it is determined that the voter was qualified to vote in

the election, MCL 168.748.

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judgment”).5 I therefore agree with the trial court that the Wayne County Board of Canvassers did

not have a clear legal duty to tabulate the 37 uncounted ballots, so I would affirm.6

/s/ Colleen A. O’Brien

5

Plaintiff and amicus correctly observe that the Wayne County Board of Canvassers could have

ensured the integrity of the 37 uncounted ballots before tabulating them by, for instance,

identifying and contacting all 37 voters and having them verify their ballots and the marks thereon.

I do not believe the existence of this possibility took away the Wayne County Board of Canvassers’

discretion under MCL 168.823(3), however.

6

Intervening-defendant spends much of his brief on appeal discussing statutes and caselaw

concerning recounts, and the majority rightly ignores this discussion because plaintiff has

repeatedly disavowed any suggestion that he is requesting a recount. That said, MCL 168.871 (the

statute that governs the eligibility of ballots in the event of a recount) does create somewhat of an

oddity if the 37 uncounted ballots are counted. Under MCL 168.871(1), only ballots that were

properly stored are generally eligible to be recounted. The proper-storage requirement can be

waived if a sufficient explanation is provided, but such an explanation must provide “that the

security of the ballots is otherwise preserved.” MCL 168.871(2). The security of the 37 uncounted

ballots was clearly not preserved, so if plaintiff was requesting a recount, those ballots would

seemingly be ineligible under MCL 168.871(2).

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