Mandamus Requires a Clear Statutory Duty: No Compelled Consideration of Voter Affidavits in Nominating-Petition Signature Review Under MCL 168.552

1. Introduction

Ariel Drissman v Michigan Department of State arose from a ballot-access dispute in which Ariel Drissman (plaintiff-appellant), a candidate for Oakland County Probate Judge, sought to compel the Michigan Department of State (defendant-appellee) to certify him for the ballot. Michigan law required him to file 4,000 valid petition signatures. Although he submitted 4,716 signatures, the Oakland County Clerk found only 3,862 valid.

Drissman timely requested administrative review by the Secretary of State under MCL 168.552(6). After the request, he submitted 111 voter affidavits attesting that challenged signatures were genuine. The Bureau of Elections (BOE) declined to consider those affidavits and instead conducted the signature-genuineness analysis by comparing petition signatures to digitized signatures in the qualified voter file. The BOE reinstated 23 signatures, leaving Drissman 115 signatures short.

Drissman then filed an original action in the Court of Appeals seeking the extraordinary remedy of mandamus to compel certification. The Court of Appeals denied relief in a published opinion, Drissman v Dep’t of State, ___ Mich App ___ (June 4, 2026) (Docket No. 380984). The Michigan Supreme Court granted expedition but denied leave to appeal. Justice Welch concurred, agreeing mandamus was unavailable while clarifying that the statutory scheme does not necessarily forbid consideration of extrinsic evidence like affidavits and inviting legislative repair to prevent voter disenfranchisement.

2. Summary of the Opinion (Michigan Supreme Court Order and Welch Concurrence)

  • The Court granted the motion to expedite.
  • The Court denied the application for leave to appeal, stating it was not persuaded the question should be reviewed.
  • Welch, J. (concurring) agreed that Drissman failed to satisfy mandamus requirements because neither the BOE nor the Clerk had a clear legal duty under MCL 168.552 to consider the voter affidavits—particularly when submitted after the three-day request-for-review period—nor a clear duty to consider affidavits even if timely.
  • Welch, J. nevertheless clarified that MCL 168.552 does not forbid reviewing officials from considering evidence beyond the qualified voter file; such consideration may be discretionary, but discretion cannot be enforced via mandamus.
  • Welch, J. emphasized the risk of disenfranchisement when allegedly valid signatures are excluded without consideration of available proof, and suggested the Legislature amend the statute to require consideration of voter affidavits submitted within a reasonable post-deadline window and to mandate counting signatures deemed valid upon review.

3. Analysis

3.1. Precedents Cited

Kennedy v Secretary of State, 515 Mich 893, 893 (2024)

Justice Welch anchored the concurrence in Kennedy, which reiterates that mandamus requires, among other elements, a clear legal right in the plaintiff and a clear legal duty in the defendant. By invoking Kennedy, Welch framed the dispute as a duty-based failure: even if affidavits are persuasive as a factual matter, mandamus cannot compel officials to do something the statute does not clearly require.

Stand Up v Secretary of State, 492 Mich 588, 598 (2012)

Stand Up supplied the standard of review—mandamus issuance/denial is reviewed for abuse of discretion. That standard dovetails with the case’s outcome: where the statute leaves room for judgment (or does not impose a duty at all), mandamus is typically inappropriate.

Taxpayers for Mich Constitutional Gov't v Michigan, 508 Mich 48, 82 (2021)

Quoted via Kennedy, Taxpayers for Mich Constitutional Gov’t provided the canonical four-part mandamus test. Its importance here is structural: Drissman’s claim faltered not on whether affidavits could prove genuineness, but on whether the law made affidavit consideration a required, ministerial step.

Hillsdale Co Senior Servs, Inc v Hillsdale Co, 494 Mich 46, 58 n 11 (2013) and Toan v McGinn, 271 Mich 28, 34 (1935)

These cases define the critical “ministerial act” element. Citing Toan through Hillsdale, Welch emphasized that an act is ministerial only if “the law prescribes and defines the duty … with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” Because MCL 168.552 mandates certain comparisons using the qualified voter file but does not mandate considering affidavits, there is no precisely defined duty to enforce by mandamus.

McCoy v Berrien Co Clerk, 348 Mich App 602, 620-622 (2023)

McCoy was cited in the Court of Appeals’ treatment of other signature issues (duplicates and date-verification). While Welch deemed those issues “not relevant to this statement,” McCoy contextualizes how Michigan courts have treated petition-signature rules as administrable standards rather than equitable balancing, reinforcing the broader theme: courts tend to enforce the legislative scheme as written, particularly in accelerated election contexts.

Neilson v Bd of State Canvassers, ___ Mich App ___, ___ (June 17, 2024) (Docket No. 371256)

Welch relied on Neilson for the key distinction between not required and not allowed. Neilson held that “nothing in the statute” required reviewing officials “to consider each and every submission … regardless of the time” of submission. Welch used Neilson to support denial of mandamus while also underscoring that Neilson did not hold affidavits were prohibited—only that mandamus cannot force their consideration absent a statutory duty.

Drissman v Dep't of State, ___ Mich App ___ (June 4, 2026) (Docket No. 380984)

The Court of Appeals’ published opinion supplied the immediate holding below: Drissman failed to show a clear legal duty requiring the Department to consider his voter affidavits, especially where they were submitted after the three-day window. Welch agreed with the mandamus outcome but refined the appellate court’s concluding language to prevent it from being read too broadly as a categorical bar on extrinsic evidence.

3.2. Legal Reasoning

  1. Mandamus is duty-enforcing, not outcome-enforcing. Welch’s reasoning tracks the mandamus elements: even if counting the disputed signatures would be substantively “right,” the remedy is unavailable unless the defendant’s obligation is clear and ministerial.
  2. MCL 168.552(6) imposes a clear deadline for the request, not a clear command about evidence. The statute requires an aggrieved person to file a written request for review within three days. Welch agreed the Court of Appeals correctly observed that nothing in the statute required the agency to consider affidavits submitted after that deadline. At the same time, Welch read the text as not necessarily prohibiting later evidentiary submissions; it simply does not compel consideration of them.
  3. MCL 168.552(3) and MCL 168.552(13) mandate qualified-voter-file-based comparisons for genuineness. Welch emphasized that these subsections prescribe the mechanism for signature comparison—use of digitized signatures in the qualified voter file (or master card if no digitized signature exists). Because the statute does not expressly require consideration of affidavits or other extrinsic proof, no “clear legal duty” exists.
  4. Discretion can exist without being mandamus-enforceable. Welch’s central clarification is conceptual: the absence of a duty does not automatically imply a prohibition. In Welch’s view, the agency may have discretion to consider extrinsic evidence, but mandamus cannot be used to compel discretionary choices.
  5. Separation of powers and election administration constraints. The concurrence implicitly respects the Legislature’s primacy in designing petition-challenge procedures. Where the scheme is silent or incomplete, courts may not rewrite it via mandamus—especially in the compressed timelines of election disputes.

3.3. Impact

  • For candidates: The opinion signals that candidates should assume affidavit-based rehabilitation is not guaranteed under current law and that mandamus will likely fail unless the statute clearly commands officials to accept and consider such proof. Practically, campaigns must focus on over-collection, internal quality control, and rapid preparation of a record that fits within what the statute clearly requires.
  • For election administrators: Welch’s clarification reduces the risk that Drissman will be read to forbid consideration of extrinsic evidence. Agencies may view the concurrence as persuasive support for creating consistent internal practices (if desired) that allow consideration of late or supplemental materials—while understanding that such practices are not compelled by mandamus.
  • For future litigation: Petition challengers and candidates will likely litigate at the duty-definition level: whether any statutory text, rule, or formally adopted procedure creates a “clear legal duty” to consider certain materials. If an agency adopts binding rules promising consideration of affidavits, litigants may try to reframe the “clear duty” source away from statute alone.
  • For the Legislature: Welch’s concurrence is an explicit invitation to amend MCL 168.552 to: (a) require consideration of voter affidavits filed within a defined reasonable period, and (b) mandate counting signatures determined valid on review—steps aimed at reducing inadvertent disenfranchisement arising from rigid or unclear evidentiary cutoffs.

4. Complex Concepts Simplified

Writ of mandamus
A court order compelling a government official to perform a specific legal duty. It is “extraordinary” because courts use it only when the duty is clear and no adequate alternative remedy exists.
Clear legal duty / clear legal right
The law must plainly require the official to do the act, and the plaintiff must plainly be entitled to that act. If the statute is silent or ambiguous, mandamus usually fails.
Ministerial act
A task the law specifies so precisely that there is no room for judgment (e.g., “if X, then do Y”). If judgment or discretion is involved, the act is not ministerial.
Qualified voter file
The state’s official voter registration database, including digitized signatures used for signature comparisons under MCL 168.552(13).
Rebuttable presumption
A default rule that applies unless sufficient contrary evidence is presented. Here, if the qualified voter file indicates a signer was not registered (or not registered in the listed city/township) on the signing date, the signature is presumed invalid—though, in theory, the presumption could be rebutted if the governing process allows for rebuttal evidence.
Extrinsic evidence
Evidence outside the statutorily designated comparison source (here, outside the qualified voter file), such as sworn voter affidavits attesting to signature genuineness.

5. Conclusion

The Michigan Supreme Court’s denial order left standing the Court of Appeals’ rejection of mandamus relief, and Justice Welch’s concurrence crystallized the controlling practical lesson: under the current text of MCL 168.552, candidates cannot obtain mandamus compelling election officials to consider voter affidavits offered to rehabilitate signatures because the statute does not impose a clear, ministerial duty to do so.

At the same time, Welch cautioned against overreading the statutory scheme as an evidentiary prohibition: the statute may mandate reliance on the qualified voter file for signature comparisons, yet still leave room—by discretion—for officials to consider other proof. The concurrence ultimately frames the issue as a policy gap best addressed legislatively, particularly where the consequence of unconsidered proof may be the effective disenfranchisement of voters who sought to support—and later vote for—their preferred candidate.