We know the names and the associated conduct which gave rise to historic disciplinary actions, court-ordered sanctions, or both as a result of participating or appearing in one of the 62 lawsuits filed nationwide in the aftermath of the 2020 general election.¹ Rudy Giuliani. Sidney Powell. L. Lin Wood. John Eastman.

In Michigan, U.S. District Court Judge Hon. Linda Parker ordered eight attorneys licensed to practice law in the state to pay sanctions in the “Kraken” lawsuit disputing the 2020 election results.² As noted by Benjamin E. Griffith, an adjunct professor of election law at the University of Mississippi School of Law:

[W]hen [these] lawyers loaned their credibility to the idea that the election was stolen, they crossed an important line. That line was between taking on unpopular or challenging cases to ensure a fair hearing and making allegations about core features of our democracy that were either knowingly false or unlikely ever to have evidentiary support.³

Renee Knake Jefferson, a professor and chair of legal ethics at the University of Houston Law Center, correctly concluded that “[w]hen lawyers misuse their law licenses by lying about the established results of a fair election before a judge or jury, they violate their oath and the very ethics rules affording them the right to practice law.”⁴

Regardless of political affiliation, there should be little dispute that these high-profile matters distract from the significant number of election-related lawsuits and administrative challenges State Bar of Michigan members file on a regular basis. Many of those lawsuits and administrative actions have merit. However, too many lack good faith arguments, are not well-grounded in law, or are procedurally deficient and a waste of judicial resources.

When courts and administrative bodies are flooded with the latter and not the former, there is an increased risk that meritorious claims are glossed over and the public loses faith in members of the bar.

For those who routinely practice election law, these matters can bring great personal and professional satisfaction. Often, these matters occur under tight timelines and intense public scrutiny. Clients rely on the attorney’s legal acumen, work ethic, judgment, and creativity. Election litigation requires stamina and, often, a willingness to simply outwork your opponent.

Election law litigation is not for the faint of heart. Lawyers should not merely dip their toes into the election law pool. I was fortunate — and remain blessed — to have learned the statutory and procedural rules governing election matters from some of the best practitioners in the state.⁵ What follows are a few key lessons I have learned during my 23 years of practice.

KNOW THE LAW

Michigan is one of eight states that administers elections at the local level.⁶ While the secretary of state has the authority to “[a]dvise and direct local election officials as to the proper methods of conducting elections,” elections are administered by Michigan’s 83 county clerks, 280 city clerks, and 1,240 township clerks.⁷ According to the Michigan Bureau of Elections, ours is one of the most decentralized election systems in the United States.⁸

Article II of the 1963 Michigan Constitution provides the baseline for the rights of registered voters and statutory rules governing elections.⁹ As a result of the passage of Proposal 2 in 2022, certain voting rights and election procedures are enshrined in the Constitution. This includes requiring nine days of early voting, drop boxes, and the right to vote by absentee ballot for any reason.¹⁰

The Michigan Election Law (MEL), MCL 168.1 et seq., implements the constitutional foundation for elections established by Article II. Included in its 37 chapters are provisions governing the conduct of state and local elections including election schedules, rules for nominating and electing candidates for various state and local offices, and the implementation of the constitutional right of initiative and referendum. In addition, the process for certifying elections through the county and state canvass, any ensuing recounts, and the recall of public officials is detailed. On top of this, the U.S. Constitution empowers Congress to regulate federal elections.¹¹

This says nothing of the related laws contained in the Michigan Campaign Finance Act (MCFA), MCL 169.201 et seq., that govern all contributions and expenditures made in furtherance of or related to state and local elections.

The bottom line: at virtually every step leading up to election day, on election day, and after election day, the rules governing how a candidate or ballot question appears and how all these activities are funded are specifically addressed in one way or another in the MEL or MCFA. Knowing where to find the rules is only half the battle. Understanding them, their interrelation, and how the courts have (or have not) interpreted these laws is crucial to successfully practicing election law.

KNOW THE TIMELINES

Similar to statutes of limitations, MEL contains numerous deadlines for candidates and proposals that must be strictly followed in order to qualify for the ballot. For example, absentee voter ballots must be delivered at least 47 days before any election or primary election.¹² The Board of State Canvassers must complete its canvass and determine a winner of an election no later than the 20th day after the election.¹³ However, unlike other statutes of limitations, courts lack the authority to move election day, certification of election deadlines, and other time limits for printing and mailing ballots.¹⁴ Thus, failure to timely challenge the qualifications of a candidate or ballot proposal or the results of an election will likely lead to dismissal of the challenge for no other reason than being too late.¹⁵

KNOW YOUR CLIENT

According to former Secretary of State Henry Kissinger, “Ninety percent of the politicians give the other 10% a bad reputation.”¹⁶ Candidates for office and those running ballot committees often want the assistance of good lawyers to help further their political ends. However, when it comes to paying fees for those services, many candidates and ballot-question committees see greater value in contributions being spent on voter persuasion and contact as opposed to legal fees. After 20-plus years of practice, my advice is to make sure you get a retainer for your services sufficient to cover your anticipated first two weeks of fees and do not let invoices go stale. If you wait to get paid until the campaign is over, you are destined to be listed on the final campaign finance report as a debt to the committee with little hope of recovering those fees.

KNOW YOUR REPUTATION MATTERS

Typically, your client has not spent thousands of dollars on law school or countless hours studying during law school or in preparation for the bar exam. Your client most likely does not risk losing the ability to practice law every time a pleading is filed or a statement is made in court. As members of the bar, we attorneys wear those badges. And as members of the bar, we must ensure that we do not allow ourselves to be used by candidates or ballot committees to pursue frivolous legal theories or engage in improper legal tactics to further a political agenda.

CONCLUSION

Balancing your professional ethics and duty of candor to the courts and your client in matters that have local, state, and national significance is never easy. However, with the right preparation and remembering to keep your ethical obligations as the ultimate check, practicing election law can be rewarding.