Republicans increased pressure Sunday on the Board of State Canvassers to delay certification of Michigan’s vote, a legally questionable strategy that some believe will trigger an instant court fight.
Republican U.S. Senate candidate John James on Sunday tweeted a video message calling on canvassers to delay by as much as two weeks for an audit of results. And Republican state Senate Majority Leader Mike Shirkey, fresh from a Friday trip to the White House, suggested the board may take the “full time allowed” and Democrats pushed for a Monday vote.
We must restore trust if we are ever going to restore unity. We go from election to election & nothing ever gets fixed because those in the best position to fix things are emotionally exhausted or politically unmotivated. Here’s a quick update for you all. ⬇️ pic.twitter.com/Sp8ZCQ162Z
— John James (@JohnJamesMI) November 23, 2020
The board of canvassers, made up of two Republicans and two Democrats, is to meet at 1 p.m. Monday, with many eyes of the nation upon them, to determine the winners of the Nov. 3 elections in Michigan. Although their decision carries much weight, they have few options but to certify, election law experts suggest.
Unofficial returns already certified by local officials in all 83 Michigan counties show Democrat Joe Biden won 154,188 more votes than President Donald Trump. Those results aren’t official until canvassers certify them, which will determine for which candidate Michigan’s 16 Electoral College votes will be cast on Dec. 14.
“If the Secretary of State places the county returns before the board, and no information is missing, the board has an obligation to certify. It has no other duties to exercise,” said Steve Liedel, an election law specialist for Dykema Gossett law firm in Lansing who served as former chief legal counsel to Democratic Gov. Gretchen Whitmer’s transition team.
If the canvassers don’t certify on Monday, an action could be filed in court on the same day to compel them to do so, Liedel said, noting that the director of elections has already recommended certification after receiving complete, certified returns from all counties.
The four-member board has been a focus of intense attention in recent days as Trump aides, in press conferences, on television and in lawsuits, have made unsupported claims of election fraud in attempts to block certification of the results. It’s among pressures in several states to overturn results.
The pressures on the board could lead to one of three likely scenarios: Certification, a delay, or a 2-2 deadlock on the board. The two latter scenarios could result in court fights designed to force certification.
The Michigan Democratic Party on Sunday in a letter requested the board “carry out your responsibility” and certify the Nov. 3 election results.
James, who lost to U.S. Sen. Gary Peters by 92,337 votes, said an audit was unlikely to change the outcome of his race, but it was important to identify and fix flaws in Michigan’s election process.
Michigan House Speaker Lee Chatfield on Sunday raised the possibility of a “constitutional crisis” if the board splits on Monday. His comments come two days after he, Shirkey and other Michigan Republicans met with Trump at the White House, amid much scrutiny in the wake of Trump’s challenges to results in several states.
“It would then go to the Michigan Supreme Court to determine what their response would be, what their order would be,” said Chatfield, R-Levering, on “Fox & Friends.” “If they didn’t have an order that it be certified, well now we have a constitutional crisis in the state of Michigan. It’s never occurred before.”
Experts and former canvassers say if the canvassers don’t take action to certify, they will likely face a state court order directing them to do so.
“This is not a matter of discretion,” said Sam Bagenstos, a University of Michigan law professor and former Democratic nominee for the Michigan Supreme Court.
“This is not something where the canvassers get to do what they want to do. They look at the results that have been provided by the counties, and if they’re in the proper form, they certify them.”
At least one Republican canvasser has expressed reservations. Norm Shinkle, a state canvasser since 2008 who is heavily involved in state GOP politics, said he’s considering asking for a delay at Monday’s meeting to review the reasons for unbalanced poll books in Detroit that Wayne County officials said totaled about a few hundred votes out of 878,000 ballots cast.
Shinkle told The Detroit News on Friday he wasn’t convinced the Wayne County Board of Canvassers had successfully certified the election after the two GOP canvassers there attempted to rescind their affirmative votes after the 14-day deadline. The canvassers were unsuccessful in their attempt to rescind, Wayne County’s top legal counsel said.
“Now, I’m only one voice out of four,” Shinkle said. “But if there’s evidence that we need more information, then we should ask for it.”
Even with a delay, Shinkle acknowledged he has been ordered to break 2-2 deadlocks on petition initiative certifications by courts before. And it’s unlikely any discrepancies in ballot reporting would net enough votes to change the outcome of an election in which a record 5.5 million Michigan residents voted.
“Everyone can do the math,” said Richard Primus, a constitutional law professor at the University of Michigan Law School.
“Joe Biden won Michigan by something like 150,000 votes. In any election where millions of people vote, there will be some number of local irregularities or some number of votes that might be challenged. But not 150,000.”
Monday’s 1 p.m. meeting will be conducted remotely with public access through the Secretary of State’s Facebook page due to the pandemic. Members of the public wishing to ask questions or speak can sign up to do so ahead of the meeting through the Secretary of State’s website.
How it works
Shinkle expected the Bureau of Elections to deliver packets to each of the canvassers over the weekend with an explanation of each county’s results and any challenges that they had.
At Monday’s meeting, the state bureau is likely to explain the reports and give canvassers any final paperwork they need to understand the breadth of results in Michigan.
Shinkle has hinted that he might ask for a delay in the certification vote at that time or make a detailed request for an audit focused specifically on Detroit and Wayne County.
Wayne County’s canvassers were told Tuesday that approximately 70% of Detroit’s absentee vote counting boards were out of balance without explanation, potentially disqualifying them from any recount. The total dipped for the city’s in-person precincts, where 22% were out of balance and unexplained. The imbalances mean those precincts or counting boards likely can’t be used in a recount, which candidates can request after the final certification.
The imbalances do not necessarily indicate voter fraud, but are likely the result of clerical errors, experts say. Canvassers have certified Detroit results with similar imbalances in 2016 and in the August primary.
If Shinkle and fellow Republican canvasser Aaron Van Langevelde were to vote against certification, the board would deadlock 2-2 and the results would remain unofficial.
In that case, the board is likely to be taken to the Michigan Court of Appeals, where judges would order canvassers to carry out their duties and certify the election, said Jeannette Bradshaw, one of two Democratic state canvassers and the board’s chairwoman.
Shinkle said he has many questions about lingering allegations in Wayne County, all of which have been refuted by elections officials there. But he wouldn’t say what type of action he might take Monday.
“They’re telling me things that are just jaw-dropping,” said Shinkle, referring to affidavits filed in lawsuits and other unnamed sources. “I’m telling them: Get the evidence in.”
The canvassers take any poll book imbalances seriously and will ask questions and urge action to keep it from happening again, but it won’t affect the final certification vote, said Julie Matuzak, the other board Democrat.
“That’s a big deal to us,” Matuzak said about the imbalances. “It probably doesn’t affect the election. It won’t affect the election. But it’s important to us. We want perfection.”
Under Michigan law, the board must begin the state certification process within 20 days after the election (which this year is Nov. 23) and wrap it up within 40 days of the election (Dec. 13).
But states only have until Dec. 8, what is known as “safe harbor” day, to choose electors to ensure they will be accepted by Congress.
When the vote is certified, Democratic Gov. Gretchen Whitmer will notify the U.S. secretary of state of the electors who align with the state’s popular vote. The electors will cast Michigan’s 16 votes in the Electoral College next month in Lansing.
The electors, nominated by their parties, vote on Dec. 14. In past years, the vote has occurred at Michigan’s Capitol.
If the state canvassers deadlock or otherwise don’t certify the election, Whitmer could potentially remove the canvassers and appoint new ones to complete the process, Liedel said. Whitmer was a national co-chair of Biden’s campaign.
Under Michigan’s Constitution, the state canvassers are officers within the executive branch of state government subject to the direction, supervision and removal by the governor, Liedel said.
“Gubernatorial appointments are effective immediately and, if subject to Senate advice and consent, stand confirmed unless rejected in 60 days,” Liedel said.
In a normal election year, the bipartisan canvassers function as a “cooperative system” by which the two parties affirm the election results in a way that neutralizes partisanship, UM’s Primus said.
“If there was a government official who announced the result, that official would usually be a member of a political party and in a close election, people would challenge that person’s integrity.
“If you have a well-functioning system, where signing off on the result is by design bipartisan, it lends the result more legitimacy.”
Canvassers weigh in
Former Republican canvasser Colleen Pero agreed the courts likely would force a certification if the board deadlocked. But even a court opinion can leave gray areas.
After the 2016 election, when Green Party nominee Jill Stein was angling for a recount, the Board of State Canvassers had dueling court orders — one from the state Court of Appeals telling them to deny the recount and another from a Detroit U.S. District Court Judge Mark Goldsmith, an appointee of former President Barack Obama, ordering them to continue the recount.
Pero recalled thinking her law license and Shinkle’s law license were on the line if they failed to comply with the orders.
“I moved that we instruct the election officials not to proceed with a recount if he (Goldsmith) lifted his order,” she said. Goldsmith eventually sided with the state Court of Appeals, agreeing Stein was not an “aggrieved” candidate under state law because she had no shot of winning in a recount.
There are always some irregularities and some rules not followed correctly during an election, said Pero. But changes to Michigan’s election law in the past three years may have escalated the issue. Still, a 154,000 vote difference is “a big hurdle” for irregularities alone to explain, she said.
“I’m sure that the members of the Board of Canvassers are conferring with their legal counsel at the Attorney General’s office,” Pero said. “I know we did that all of the time.”
Jeff Timmer was a Republican on the Michigan Board of State Canvassers for about four years before he resigned in 2012. He now is a member of Project Lincoln, an effort by certain Republicans and former Republicans to ensure Trump loses his reelection bid.
In his experience, Timmer said the courts compelled the board to rule when there was a deadlock.
“There’s very little latitude other than to do what you have to do,” he said.
To refuse certification, he said, would be “the most naked of political power plays to subvert the popular vote, the popular will of Michigan.”
There was pressure on the board in 2011 when it blocked a petition to repeal the state’s emergency manager law, but that scenario fell short of what is now on the shoulders of canvassers, Timmer said.
“There was certainly pressure, but I don’t think it was the kind of naked partisan disenfranchisement by not certifying an election where there were more than 5.5 million votes,” he said.
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