Vorva v. Plymouth-Canton Community School District

Per Curiam. Plaintiff appeals as of right from the circuit court’s order granting summary disposition for defendants pursuant to MCR 2.116(C)(8) and (C)(10). We affirm. On March 22, 1997, the Plymouth-Canton Community School District held a special election to authorize a bond issue in the amount of $79,795,000. The school district sought to borrow this sum of money for the purposes of constructing and improving school facilities. After the polls closed, the Board of Canvassers for the Plymouth-Canton Community School District canvassed the returns of the election and concluded that there were 5,733 votes in favor of the bond proposal, 5,637 votes against it, and 721 invalid votes. After the election, several individuals, including plaintiff, filed petitions with the school district calling for a recount or a special election because there had been mechanical malfunctions in the UniLect Coiporation voting equipment, 1 which “disenfranchised” *655 over seven hundred voters. The Board of Canvassers for the Plymouth-Canton Community School District convened to consider the petitions for a recount and the petitions for a special election. The petitions were accepted, which resulted in the Wayne County Board of Canvassers conducting a recount on April 15, 1997, which was then followed by a testing of the UniLect System for mechanical defects. After the recount, the Wayne County Board of Canvassers concluded that the bond issue had passed by a vote of 5,733 “yes” to 5,637 “no.” The Board of Canvassers for the Plymouth-Canton Community School District, after simulating an election and reviewing the results, concluded that the UniLect System machines were not defective or malfunctioning. Therefore, the petitions for a special election were denied. Thereafter, plaintiff filed a complaint for mandamus and injunctive relief. Plaintiff first contends that the trial court erred in denying his request for a writ of mandamus compelling the board of canvassers to void the election and order a special election. We disagree. Issuance of a writ of mandamus is proper where (1) the plaintiff has a clear legal right to performance of the specific duty sought to be compelled, (2) the defendant has the clear legal duty to perform such act, and (3) the act is ministerial, involving no exercise of discretion or judgment. Bingo Coalition for Charity — Not Politics v Bd of State Canvassers, 215 Mich App 405, 413; 546 NW2d 637 (1996). Mandamus is an extraordinary remedy that may lie to compel the *656 exercise of discretion, but not to compel its exercise in a particular manner. Teasel v Dep’t of Mental Health, 419 Mich 390, 409-410; 355 NW2d 75 (1984). The board of canvassers is authorized to order a special election if it has been shown that an elector cannot cast a valid vote at an election because of a defect or mechanical malfunction of a voting machine, voting device, ballot, or other election equipment or material. MCL 168.831 et seq.; MSA 6.1831 et seq. The board of canvassers conducted an examination of the voting machines and concluded that there were no defects or mechanical malfunctions, and plaintiff has presented no evidence to the contrary. Consequently, defendant board had no legal obligation to order a special election, therefore, a writ of mandamus may not ensue. In further support of his position, plaintiff argues that the voting system was defective, not by virtue of a mechanical malfunction of the machines themselves, but because the electorate was not properly instructed in the use of the machines. This type of “defect” is not contemplated by the provisions of MCL 168.831 et seq.; MSA 6.1831 et seq., because it is not within the purview of a local board of canvassers to review the substantive quality of the instructional materials accompanying the machine. The Secretary of State is charged with the responsibility of providing instructions for the use of electronic voting machines to local election officials. MCL 168.31; MSA 6.1031, MCL 168.795a(2); MSA 6.1795(1)(2). We find no merit in plaintiff’s request for a writ of mandamus. Next, plaintiff argues that the trial court erred in dismissing count I of the complaint wherein plaintiff alleged that the school board violated the mandates *657 of MCL 168.770a; MSA 6.1770(1) because it failed to seek the approval of the Secretary of State before using the UniLect System in the March 22, 1997, election. We disagree. Section 770a, in general, requires the approval of the Secretary of State before a new voting system may be used. However, the UniLect System was an electronic voting system. Use of systems of this nature are specifically addressed in §§ 794 through 799a of the Election Law. 2 MCL 168.795a; MSA 6.1795(1) requires that the board of canvassers approve electronic voting systems. In this case, the Board of State Canvassers approved the UniLect System for use in Michigan in March 1994. Further, MCL 168.794c; MSA 6.1794(3) specifically provides that §§ 794 to 799a control with respect to elections where electronic voting systems are used. The trial court properly found that § 795a, not § 770a, governed the use of the UniLect System. Thus, we find no error in the court’s dismissal of count I of plaintiff’s complaint. Although the court granted summary disposition with respect to count I of plaintiff’s complaint, it granted plaintiff leave to amend his complaint to allege that the school board failed to comply with the provisions of § 795a. As addressed above, § 795a requires that electronic voting systems be approved by the Board of State Canvassers before use in an election. In addition, that section requires that if the approved electronic voting system is improved or changed, it must be submitted in its improved or changed form for recertification by the Board of State Canvassers. It is the alleged violation of this later pro *658 vision that plaintiff pleaded in his amended complaint. After the amendment was made, defendants renewed their motions for summary disposition. At that time, because plaintiff could not establish that the alleged statutory violation affected the outcome of the election, or that it was the cause of the 716 invalid votes, and the UniLect System still met the minimum standard for certification, the court granted summary disposition with respect to plaintiff’s claims of statutory noncompliance. We find no error in this ruling. Under the circumstances of the present case, noncompliance with the statute does not render the election results invalid. In Noel v Oakland Co Clerk, 92 Mich App 181, 188-189; 284 NW2d 761 (1979), this Court quoted 29 CJS, Elections, § 67: “Ordinarily, provisions of an election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after an election such provisions are directory only, in support of the result, unless they are of such a character that their violation would effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless they affect an essential element of the election, or it is expressly declared by statute that compliance with them is essential to the validity of the election. ” [Emphasis added.] See, also, Gracey v Grosse Pointe Farms Clerk, 182 Mich App 193, 208; 452 NW2d 471 (1989). Further, “[i]t has been repeatedly held by [the Michigan Supreme Court] that irregularities in the conducting of an election will not invalidate the action taken unless it appears that the result was, or may have *659 been, affected thereby.” Rosenbrock v School Dist No 3, Fractional, 344 Mich 335, 339; 74 NW2d 32 (1955). In this case, plaintiff cannot show that the school board’s alleged violation obstructed the free and intelligent casting of the vote, or the ascertainment of the results, or that it affected an essential element of the election. Plaintiff cannot show the presence of any of these factors because even in its changed state, the UniLect System still met the minimum requirements for certification and the “change” that plaintiff contends warranted recertification is unrelated to the ability of the voter to cast his vote. The “change” was solely related to the ability to ascertain results in the event of a recount. In this regard, the machine was still able to perform a recount, indeed it was required to do so in this case, it just lacked the capacity to do so from two separate sources. Because plaintiff’s challenge came after an election, the statutory provisions became purely directory. Noel, supra at 188-189. As such, statutory noncompliance does not render the election invalid. Id. Finally, plaintiff alleges that he and the unidentified 716 voters were denied the equal protection of the law. We disagree. Plaintiff’s claims are not of the nature recognized by the Equal Protection Clause of either the federal or the state constitution. The equal protection guarantee requires that persons under similar circumstances be treated alike. El Souri v Dep’t of Social Services, 429 Mich 203, 207; 414 NW2d 679 (1987). “United States Supreme Court precedents consistently indicate that the United States Constitution’s Equal Protection Clause reaches only intentional or purposeful discrimination.” HarviUe v State Plumbing *660 & Heating, Inc, 218 Mich App 302, 306; 553 NW2d 377 (1996). In this case, plaintiff did not allege any intentional or purposeful discrimination or that similarly situated individuals were treated differently. Indeed, it does not appear from the record that there was any differential treatment of the voters. Each voter was given an opportunity to vote under the same circumstances. Unfortunately, because of voter error or a conscious decision not to cast a vote while in the booth, 716 votes were invalid. In Hadley v Junior College Dist of Metropolitan Kansas City, Mo, 397 US 50, 56; 90 S Ct 791; 25 L Ed 2d 45 (1970), the United States Supreme Court recognized that the “Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election . . . .” Because each voter was given an equal opportunity to cast his vote, and over eleven thousand electors were successful in this endeavor, no equal protection violation has occurred. Affirmed. Footnotes [1] At the election, the school district used an electronic voting system developed by UniLect Corporation. The UniLect System was approved for use in Michigan by the Board of State Canvassers on March 11, 1994, and had been used on four prior occasions for township and school district elections. The system permits the voter to touch a “yes” or “no” rectangular box on a touch sensitive screen to enter the vote. When the desired box is touched, it becomes illuminated. However, if that box is touched for a second time, the illumination shuts off and the voter has, effectively, withdrawn that selection. After the selection is made, the voter must touch an “end all voting” box to record the vote. If the voter’s selection is not illuminated when the “end all voting” box is touched, no vote is *655 recorded. Consequently, if a voter makes Ms imtial selection, then touches the selection for a second time, and then does not make an alternative selection before touching “end all voting,” no vote has been recorded. [2] MCL 168.794; MSA 6.1794 through MCL 168.799a; MSA 6.1799(1).