Lawsuit Wants Order Forcing Gov To Call Election In 35th Senate District

(Source: MIRS.news, Published 08/11/2025) A collection of 35th Senate District residents have filed a lawsuit seeking an order to compel Gov. Gretchen Whitmer to call a special election to fill the 35th State Senate District.

The plaintiffs, district voters in Bay, Midland and Saginaw districts, claim the Governor’s inaction has deprived roughly 270,000 residents of their constitutionally guaranteed right to representation in the Senate for more than 200 days.

Philip Ellison, the attorney who is filing the lawsuit in the Court of Claims, said Article V, Section 13 of the Constitution provides that the Governor "shall issue writs of election to fill vacancies in the Senate or House of Representatives," and the use of the word "shall" means it is mandatory.

The case, Ellison said, raises a fundamental question: In Michigan's constitutional framework, is the Governor a gatekeeper or merely a messenger when it comes to filling legislative vacancies?

"The answer will determine not just the fate of the 35th District's residents, but also the boundaries of gubernatorial power in future vacancy disputes," he said.

The court could issue an order requiring Whitmer to act within a set number of days, or it could find that Whitmer retains broad discretion over timing, which Ellison said could set a precedent allowing extended, including indefinite, vacancies in the state Legislature.

A message seeking comment from the Governor's office hasn't been returned.

Dykema attorney Steven Liedel, former legal counsel to Gov. Jennifer Granholm, said the "frivolous" lawsuit is based on a misinterpretation of state law, which has consistently held since 1874 that courts cannot compel a governor to act via a writ of mandamus.

The original cases, People ex rel. Sutherland v. Governor, was affirmed in the Michigan Court of Appeals' 2022 ruling in Taxpayers for Michigan Constitutional Government v. State of Michigan.

That appeals panel included a Granholm appointee as well as an appointee of Republican Gov. Rick Snyder.

"It's pretty much black letter law that you can't bring an action in a Michigan court trying to compel the governor … regardless of the circumstances. … It doesn't matter what the claim is. Any writ of mandamus 'will not lie' against the governor," Liedel said, quoting the 1874 opinion from Michigan Supreme Court Justice Thomas Cooley.

Ellison has been sanctioned before for filing a frivolous lawsuit.

In 2023, a federal court sanctioned Ellison and a co-counsel for pursuing "frivolous causes of action" against a title services company. The U.S. Sixth Circuit Court of Appeals affirmed that decision and the U.S. Supreme Court denied a request to review the decisions, according a Law360 article.

When asked for a response to the characterization that the lawsuit is frivolous, Ellison said: "The Governor is not above our state's highest and most important laws and the courts will decide how violating the Constitution should be remedied whether by mandamus, injunction, or a declaratory judgment."

Ellison filed a motion on Monday seeking an order directing Whitmer to appear in court "and explain why she has failed, for more than 200 days, to perform her mandatory constitutional duty."

The 35th District seat once belonged to then-Sen. Kristen Mcdonald Rivet (D-Bay City), who vacated the post when she was elected to the U.S. House in November.

Historically, Michigan governors have acted to fill legislative vacancies with special elections being called within days or weeks of a resignation. Since the era of the full-time Legislature in 1967, governors, on average, have taken 15 days to call a special election after a legislative vacancy.

To date, however, she's taken more than 200 days to fill the 35th.