After more than seven months without representation in the Michigan Senate, several residents of Michigan’s 35th Senate District are taking legal action against Michigan Gov. Gretchen Whitmer in hopes of compelling the governor to call a special election in the district.

The suit, filed in the Michigan Court of Claims by Outside Law PLC on Sunday, was brought on behalf of seven residents from Saginaw, Midland and Bay counties. The complaint seeks a writ of mandamus from the court compelling the Democratic governor to initiate a special election for the open Senate seat.

The suit is also seeking a declaratory judgment that a failure to call the special election violates the Michigan Constitution, and an injunction requiring the scheduling of a special election at the earliest practicable time.

“This isn’t about politics; it’s about the Constitution and the Michigan Constitution isn’t optional,” Philip L. Ellison, the attorney for the plaintiffs said in a statement. “Every day this seat stays empty with no plan for fulfillment is another day 270,000 people are silenced in Lansing.”

Michigan’s 35th Senate District was previously represented by U.S. Rep. Kristen McDonald Rivet, D-Bay City; however, the district has been left vacant since McDonald Rivet stepped down to serve in Congress, with the representative sworn into her new office on Jan. 3.

More than eight months later, the seat remains vacant as Whitmer draws criticism from several Republicans and some Democrats who are demanding the governor call a special election in the district.

The district serves as a key battleground seat for the state Senate, and a special election could potentially shake up the chamber’s Democratic majority. While Democrats currently hold a majority in the chamber, a Republican victory in the district would split the chamber.

Although Lt. Gov. Garlin Gilchrist, a Democrat and president of the Senate, could cast a tie-breaking vote, all members would need to be present and voting. If any member of the chamber is absent, a 19-18 vote would leave Gilchrist unable to vote, and any legislation would fail without the 20 votes needed to pass through the chamber.

While Whitmer’s press secretary told the Advance they do not comment on pending litigation, Steve Liedel, an attorney with Dykema and former legal counsel to Gov. Jennifer Granholm, called the case a “frivolous lawsuit.”

“Since 1874 the Michigan Supreme Court has held that a mandamus action to compel the governor to perform some constitutional duty is not enforceable by the courts,” Liedel said, noting the ruling has been repeatedly affirmed over the decades, most recently in 2022.

Liedel said he suspects there will be a motion to dismiss, most likely filed by the attorney general representing the governor, with the Court of Claims obligated to follow the precedent.

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