A friend, who is registered to vote in southeast Michigan, recently told me that he was considering voting for Evan McMullin for President of the United States. McMullin's name will not appear on the Michigan ballot this November. However, according to his campaign website, McMullin has filed the necessary paperwork to run as a write-in candidate in Michigan.
This got me thinking: Does Michigan law actually permit write-in votes for President of the United States?
The Michigan Secretary of State's office says it does. Indeed, according to this Detroit Free Press article, the Secretary of State confirms that seven people have filed the requisite paperwork to run as write-in candidates for President in Michigan this year. But I'm not so sure.
I fully acknowledge that Michigan law does not expressly prohibit write-in candidates for President. It merely provides, without differentiating among offices, that a person who wishes to run as a write-in candidate must file a declaration of intent with the appropriate elections official by "4 p.m. on the second Friday immediately before the election." MCL 168.737a(1).
So what's the problem? Well, as you probably know, we do not vote directly for President and Vice President of the United States. Instead, we vote for a slate of presidential electors. Michigan's write-in statute does not provide any mechanism by which a write-in candidate for President of the United States may designate a slate of electors or a vice presidential running mate.
Contrast this with MCL 168.590d(2), which permits a presidential candidate without party affiliation to qualify for the Michigan ballot by filing paperwork with the Secretary of State no later than 66 days before the general election. Section 590d(2) specifically provides that a candidate for President without party affiliation must identify "the names and addresses of persons chosen to be presidential electors and the name of the person who shall appear on the ballot as candidate for vice-president . . . ."
If the Legislature had truly intended to permit write-in votes for the office of President of the United States, doesn't it seem that the lawmakers would have provided a similar mechanism for write-in candidates to identify a slate of electors and a running mate on their required declaration of intent forms?
A friend who is familiar with the practices of the Michigan Secretary of State's office has told me that write-in candidates for President are asked to name a slate of electors and a running mate when submitting their declaration of intent forms under § 737a. However, I reiterate that Michigan law does not authorize such a procedure or even mention it.
Under Article II, § 1, clause 2 of the United States Constitution, the state legislature — not the Secretary of State's office — has exclusive authority to determine the method by which the state's presidential electors are chosen. McPherson v. Blacker, 146 U.S. 1, 27, 35 (1892). I perceive absolutely no evidence that the Legislature intended to allow write-in votes for presidential electors in Michigan. The Secretary of State might believe that Michigan law allows write-in votes for electors of President of the United States, but I have serious doubts.