Michigan Supreme Court Denies Mandamus, Killing Proof-of-Citizenship Ballot Measure Hours After SCOTUS Also Declines to Intervene

What happened

On the evening of Thursday, September 3, 2026 — the day before Michigan’s statutory deadline to finalize the November ballot — the Michigan Supreme Court denied an original mandamus action (Case No. 170595) brought by Americans for Citizen Voting–Michigan (ACVM) and co-applicant Fred Smith against the Michigan Board of State Canvassers. The 16-page order (certified by the Clerk, Sept. 3) says relief is denied because “the actions taken by the Board of State Canvassers in this case were discretionary, mandamus relief cannot issue,” and that “the Legislature can amend MCL 168.476” on audit timing, when affidavits must be considered, and whether rejected signatures are compared to affidavits, because the statute “contains no requirements on any of these matters.” Justices Welch and Hood concurred; Justice Zahra concurred in part (the five untimely affidavits) and dissented in part, writing that he would vacate the Board’s rejection of four affidavits as a due-process violation and remand. The order text does not contain the phrase “no strict ministerial duty to certify,” which a news outlet attributed to the ruling; do not quote that phrase as the court’s. The order’s vote tally is not stated in the text.

The ruling landed within hours of, and on the same calendar day as, a separate denial from the U.S. Supreme Court: Justice Brett Kavanaugh, acting as Circuit Justice for the Sixth Circuit, denied ACVM’s emergency application (Docket No. 26A275) for an injunction pending appeal earlier that same Thursday — a one-line denial with no written opinion and no referral to the full Court. Triangulating two outlets’ timestamped live-updates (Michigan Advance’s 7:40pm update noting the MSC action “later on Thursday evening”; The Gateway Pundit’s 4:28pm EDT report that the MSC case was “still pending” at that hour), the MSC’s denial followed the SCOTUS denial by roughly two to three hours, both within the same evening. The two-front denial closed off ACVM’s routes to the ballot one day before the statutory finalization deadline.

The documents support describing this as a sequence of three closed routes (the order itself calls the statutory timing a problem: Justice Hood writes the overlapping Board and ballot-notice deadlines “sometimes makes timely relief functionally impossible”; Justice Welch writes that no one disputes plaintiffs got the process the statute requires). They do not support a finding of bad faith or of coordination. The sequence: canvasser-board non-certification (Aug. 24) → state-court mandamus denial (Sept. 3) → federal shadow-docket emergency denial (Sept. 3), all completed within 11 days and finalized the day before the statutory deadline that made further appeal moot.

The underlying dispute

The Board of State Canvassers deadlocked 2-2 along party lines on August 24, 2026 (Republicans voting to certify, Democrats voting not to) after a Bureau of Elections statistical sample of 1,000 submitted signatures came back 3 short of the 629 needed to project the petition over the 446,198-signature threshold. ACVM had submitted 23 notarized curative affidavits from voters whose signatures the Bureau had flagged as non-matching in the Qualified Voter File; the Board accepted 14 and rejected 9 — 4 for alleged signature mismatch on the affidavit itself, 5 as untimely (submitted less than 48 hours before the Board’s meeting, under Mich Admin Code R 168.846 as cited in Justice Zahra’s opinion). Co-applicant Fred Smith was one of the 9 voters whose affidavit was rejected as untimely, despite the Board separately finding it a valid affidavit proving he had signed the petition. The 23/14/9 and 4+5 split appears in Justice Zahra’s opinion in the order itself (the 4 mismatch rejections: two unanimous, one majority, one 2-2; the 5 untimely: all 2-2) and in ACVM’s SCOTUS application. Sample arithmetic from the order: 629 of 1,000 needed; 692 valid on Aug. 17; 612 after challenges (17 short); 626 after 14 affidavits (3 short). That the Board conceded the five late affidavits were valid signatures is plaintiffs’ claim as recounted by Zahra, not a finding. Justice Welch’s concurrence says the Board followed MCL 168.476 and plaintiffs “received all of the procedural protections”; Zahra’s partial dissent says due process was violated for the four. No court majority has ruled on the Bureau’s five-and-a-half-month review delay.

The same-week contrast — and what explains it

The same Michigan Supreme Court, in a separate order also dated Thursday, September 3, 2026, declined to overturn the Board of State Canvassers’ affirmative certification of a different ballot measure — the Michiganders for Money Out of Politics (MMOP) campaign-finance-disclosure initiative (Proposal 2) — rejecting a challenge from Protect MI Free Speech and Michigan Chamber of Commerce president Jim Holcomb that argued the Board had used a faulty statistical-sampling formula. Proposal 2 proceeds to the November 3, 2026 ballot.

One measure was kept off the ballot; the other was kept on it; both rulings issued the same day by the same court. The distinction is procedural posture, not differential treatment: ACVM needed the court to compel an act the Board never took (mandamus requires a clear legal right to a ministerial, non-discretionary duty — a high bar); Protect MI Free Speech needed the court to overturn an act the Board had already taken. Both challenges asked the MSC to second-guess the same kind of Board judgment — statistical-sample-based signature sufficiency — and the court treated that judgment as discretionary in both directions, which produces opposite results depending on which side of a certification decision a challenger starts from. See michigan-acv-proof-of-citizenship-ballot-access-denial-verified for the full mechanism comparison.

Do not conflate

SCOTUS Docket 26A275 (this case) is unrelated to SCOTUS Docket 24A405 (Kennedy v. Benson, RFK Jr.’s 2024 attempt to be removed from the Michigan presidential ballot, denied Oct. 29, 2024, Gorsuch dissenting). An imprecise “…v. Benson” caption search surfaces the wrong case. Cite only by docket number.

Funding context

ACVM’s 2025 fundraising (~$4.9M) was almost entirely two out-of-state dark-money nonprofits that do not disclose their own donors: Restoration of America (Illinois activist Doug Truax) at ~$3.5M and Liberty Initiative Fund (chaired by ACVM chair Paul Jacob himself) at ~$275,000.

Related

• michigan-acv-proof-of-citizenship-ballot-access-denial-verified — full verification note: opinion text status, affidavit reconciliation, date confirmation, structural comparison to the Proposal 2 ruling
• scoping-michigan-2026-down-ballot-slate-supreme-court-legislature-us-house-ballot-proposals — parent scoping memo, full Michigan 2026 down-ballot context
• judicial-capture — mandamus/discretionary-review doctrine as a structural ballot-access chokepoint