All eyes on Michigan election certification
From personal calls with a Wayne County canvasser, to meeting with Republican state lawmakers in Washington, the president's strategy questioning Michigan's election, which President-elect Joe Biden won, continues as time runs short.
At the Michigan Board of State Canvassers meeting on Monday, two Democrats and two Republicans will meet to certify the results of Michigan’s election. Unofficial results, which have been certified by all of Michigan’s 83 counties, show President-elect Joe Biden with a lead of more than 150,000 votes, more than 14 times the margin by which President Donald Trump won the state in 2016.
The process of this small administrative board is the last step in Michigan’s election process. What has ordinarily been described by legal experts as a straightforward and at times perfunctory duty has been launched into the national spotlight after Trump continues to falsely claim victory and potentially try to make a play for the state’s 16 electors.
Despite Republicans’ continued alarm bells that election irregularities exist, a mountain of bureaucratic assurances in the form of thrown out or withdrawn lawsuits, statements from state and local election officials, and a Friday report from the state’s Bureau of Elections have accumulated, thus far, proving the contrary—Michigan’s election was secure.
Yet, the Trump campaign appears to be engaged in a Hail Mary effort to run out the clock so Michigan’s electors aren’t awarded to Biden by a key electoral college deadline of December 14, or go rogue and try to persuade Republican state legislators to subvert the popular vote and state law in an effort to install electors who are loyal to Trump.
On Thursday, the president summoned senior Republicans in Michigan’s state Legislature to the White House—raising hackles of political observers and voters in Michigan and across the nation.
Despite the pressure campaign, Democratic state officials remain convinced the board will do its job and certify the election.
In a Friday interview on MSNBC, Michigan’s Secretary of State Jocelyn Benson said of the Monday meeting, “We expect them to comply with that very clear legal duty.”
In a press conference, Democratic Governor Gretchen Whitmer said, “The canvassers need to do their job. I expect that they will do their job and certify this result.”
Whitmer also implored Senate Majority leader Mike Shirkey (R-Clarklake) and House Speaker Lee Chatfield (R-Levering) to “…put country over party, respect the law, and see through that the will of the people is reflected in our electors and not play games with this fundamental part of our democracy.”
Despite warnings against the meeting, a senior group of Republicans from the state Legislature, accompanied by lawyers, flew to Washington to meet with President Trump.
A scrutinized trip to the White House
In a statement issued minutes after the meeting reportedly ended, lawmakers announced they’d used the opportunity to ask the president for additional COVID-19 relief before adding, “We have not yet been made aware of any information that would change the outcome of the election in Michigan,” pledging they would “follow the law” and “normal process regarding Michigan’s electors.”
The statement concluded that the process of the Board of State Canvassers should be “free from threats and intimidation,” fraudulent behavior should be investigated and prosecuted to the full extent of the law, and “the candidates who win the most votes win elections and Michigan's electoral votes.?These are simple truths that should provide confidence in?our elections.”?
Initially, the announcement quelled fears that the legislators would intervene in the process. But by Saturday morning, President Trump had retweeted the statement from Shirkey’s Twitter account adding, “This is true, but very much different than reported by the media. We will show massive and unprecedented fraud!”
The tweet was cold comfort to plenty of state lawmakers and observers in Michigan who are waiting for a potential replay of the whiplash at last Tuesday’s Wayne County Board of Canvassers meeting, where Republican canvassers initially voted not to certify results in Michigan’s bluest and most populous county.
Then, after facing a torrent of furious public commenters who alleged a vote not to certify would disenfranchise a majority of Black voters in the state, the two Republicans reversed course and voted to certify the results.
After certifying, Republican canvassers Monica Palmer and William Hartmann later filed affidavits saying they wanted to recant their votes—which a spokeswoman for the Secretary of State and legal counsel for the Wayne County Board of Canvassers said is not possible.
Like changing the rules at the end of the fourth quarter
Despite the certification of results, Republicans have continued to target Wayne County. By Saturday, the chair of the Michigan Republican Party, Laura Cox, and Republican National Committee Chairwoman Ronna McDaniel drafted a joint letter requesting the Board of State Canvassers adjourn for 14 days to audit the results there.
The request was initially made by Republican Senate candidate John James who lost to incumbent Democratic Senator Gary Peters.
But according to statute, the secretary of state cannot legally release ballots, ballot boxes, equipment or other items necessary to perform an audit until after the canvassers certify the results—a point Benson has made clear in advance of the letter. She announced last week the state plans to conduct a risk-limiting audit after certification.
Legal experts also agree, citing the state’s election code.
John Pirich, a veteran of state election law and adjunct faculty member at the Michigan State University College of Law, says, “Auditing the election is not within its scope of duties; the board is only responsible for reviewing the vote calculations and signing them. This process has nothing to do with discretion or the board members’ political leanings.”?
Legal Counsel to former Governor Jennifer Granholm, Steve Liedel, agrees.
“This is just about the math; both parties agree that the math from every county, which have all certified the results, is valid, and the results are certified,” says Liedel.
In the case of a deadlocked vote or failure to certify, Liedel says there is no role for the state Legislature to appoint electors, citing the state’s separation of powers clause.
“Appointing members of the electoral college is not legislative—it’s not passing a law. And, there’s nothing in the Michigan Constitution that would authorize the Legislature to do that,” Liedel says.
“It would be like changing the rules of a football game at the end of the fourth quarter… this is a process that was a matter of law. Back in August, both parties at their fall conventions adopted a slate of electors and they decided to play the game that says ‘you run your election and the person with the most votes gets their electors selected for the electoral college.'”
If the Legislature were to select electors not according to the popular vote, “In addition to being illegal there’s no sense of fair play if that were to occur,” he adds.
Yet in an interview on FOX and Friends Sunday, Speaker Lee Chatfield said his perspective is different, citing federal not state law.
“If there were to be a 2-2 split on the Board of State Canvassers it would then go to the Michigan Supreme Court to determine what their response would be, what their order would be. If they didn’t have an order that it be certified well now we have a constitutional crisis in the state of Michigan that’s never occurred before,” said Chatfield.
Senate Majority Leader Mike Shirkey spoke out on Twitter foreshadowing the possibility of a delay, “As I’ve repeatedly said our election process MUST be free of intimidation and threats. Whether the Board of Canvassers certifies our results tomorrow or decides to take the full time allowed by law to perform their duties, it’s inappropriate for anyone to exert pressure on them.”
Running out of time
If the board is deadlocked, Mark Brewer, former chairman of the Michigan Democratic Party and Attorney at Goodman Acker LLC, says, “they will be ordered to certify by a court backed up by the very sanctions a court can impose.”
Brewer adds, “Those sanctions have been used in the past against recalcitrant board members: contempt, possible bar grievances, and all the other penalties.”
The board is expected to vote on Monday because “they’ve got all the data. There is no reason for them to adjourn. There’s nothing for them to wait for on Monday,” says Brewer.
The Bureau of Elections has recommended the Board of State Canvassers certify the results, noting that all of Michigan’s 83 counties have certified the results. Now, Michigan and the country will wait for this ordinarily mundane bureaucratic process to unfold. The Board of State Canvassers is set to meet remotely at 1 p.m. on Monday.