Michigan Vote Certification Is Today

Above: Senate Majority Leader Mike Shirkey, R-Clarklake, and House Speaker Lee Chatfield, R-Levering. (MLive file photos)

Today we will find out if Michigan Republicans are true patriots, or Vichy Republican collaborators in the “GOP Clown Car Coup” to steal the election for Donald Trump.

The Detroit Free Press reports, Board of State Canvassers faces potential deadlock: Is it time for reform?

For what is believed would be the first time in history, Michigan’s elections board could deadlock Monday on certifying the state’s presidential election results.

By law and by practice, certification by the Board of State Canvassers — comprised of two Democratic appointees and two Republican ones — is supposed to be a routine sign-off [a non-discretionary ministerial duty]. Certification acknowledges that Michigan’s unofficial results match the tabulated vote counts. It follows a two-week period of double-checking in Michigan’s 83 counties, where some inaccuracies in the unofficial numbers, as is normal, were found and corrected.

But these are not normal times.

The climate is hyper-partisan, disinformation is rampant, and Republican President Donald Trump and his team of lawyers are spreading false claims, working to somehow overturn election results in Michigan[.]

The prospect of a deadlock — which is by no means assured at the state level but did occur for a few hours Tuesday at the similarly structured Wayne County Board of Canvassers — has experts questioning whether a four-member board, halved along partisan lines, is still workable in a world where Republicans and Democrats disagree not just on policy, but on facts.

Note: In Michigan, although the prospect of the Board of State Canvassers failing to certify a presidential vote is new, the board being paralyzed by 2-2 partisan deadlocks is not. The board has repeatedly split along partisan lines about certifying ballot proposals before the Michigan Court of Appeals has had to step in.

[A]t the Michigan Board of State Canvassers, Republican board member Norman D. Shinkle said he has many concerns, ranging from election equipment used in Michigan to the absentee voting process, to transparency issues, and he is leaning toward seeking a delay in certification. Shinkle’s wife, Mary, was a Republican poll challenger at the TCF Center in Detroit and signed an affidavit used by the Trump campaign in a federal lawsuit that has since been withdrawn.

It would take Shinkle’s vote plus one other to delay certification. The other Republican member, Aaron Van Langevelde, has not said how he plans to vote. Van Langevelde, an attorney and former assistant prosecutor in Branch County, works for state House Republicans, whose leader, Speaker Lee Chatfield, R-Levering, flew to Washington, D.C., on Friday with a handful of other GOP lawmakers to meet at the White House with Trump.

Chatfield and state Senate Majority Leader Mike Shirkey, R-Clarklake, said after the meeting with Trump they have not been “made aware of any information that would change the outcome of the election in Michigan,” and intend to follow the normal process. Michigan GOP leaders after White House meeting: ‘We will follow the law’:

“We have not yet been made aware of any information that would change the outcome of the election in Michigan and, as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election,” House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey said in a joint statement after the meeting.

My statement on our meeting with the President today: pic.twitter.com/npKXVFI60x

— Sen. Mike Shirkey (@SenMikeShirkey) November 20, 2020

But on Saturday, Ronna McDaniel, chair of the Republican National Committee and a Michigan resident, and Laura Cox, chair of the Michigan Republican Party, wrote the board asking it to delay certification for 14 days, pending an audit, citing “procedural and accounting irregularities” such as discrepancies between the number of people recorded as having cast ballots at various Detroit precincts and the actual number of ballots counted. Republican leaders ask Michigan election board to delay certification of results, in latest GOP effort to cast doubt on the vote.

Election officials have said such poll book imbalances are not uncommon in precincts across Michigan and are not evidence of fraud. Instead, they typically are the result of human error, such as a reporting oversight when an absentee ballot envelope arrives and is later found not to have a ballot inside.

Secretary of State Jocelyn Benson says postelection audits are planned, including a performance audit in Wayne County, but under Michigan law such audits can only be conducted after results are certified.

The meeting of the Board of State Canvassers, which votes independently of both the Legislature and the governor, is set for 1 p.m. Monday and can be viewed on the Facebook page of the Michigan Secretary of State’s Office.

If the board does not vote Monday to certify Michigan’s election results, legal experts don’t expect it will pose a serious threat to appointing the state’s presidential electors.

If the board showed no signs of acting to certify, someone would almost certainly sue in the Michigan Court of Appeals, seeking an order requiring the board to do so. Such an order could then be appealed to the Michigan Supreme Court. Once court proceedings are concluded, preferably before the Dec. 8 “safe harbor” date by which Congress is required to accept Michigan’s electoral votes, Gov. Gretchen Whitmer would certify the state’s 16 presidential electors ahead of the Dec. 14 convening of the Electoral College.

Samuel Bagenstos, Professor of Law at the University of Michigan Law School, and Justin Levitt, Professor of Law at Loyola Law School-Los Angeles, are both scholars of voting rights, and both have served as senior officials in the Civil Rights Division of the U.S. Department of Justice. They explain in an op-ed, Refusing to certify legitimate votes is a felony (excerpt):

[A] canvassing board may not legally refuse to certify an election where no legitimate evidence undermines valid ballots. Michigan courts have repeatedly rejected wild claims of election fraud or improprieties as “incorrect and not credible.” The votes, at this point, speak for themselves. Should a member of the state canvassing board seek to misuse their authority, that obstruction won’t actually deliver a different result. First, understand what state canvassers do: certification just involves adding county tallies and declaring a winner. Michigan law provides a separate space to review the election process — a post-election audit, which does not delay or stop certification. The canvassers have one job. State courts can step in to make sure it gets done. Canvassers failing to do their duty may delay the inevitable for a moment — but not much more than that.

[L]egislative leaders have disavowed any illegal effort to ignore the votes of their citizens. President-Elect Biden’s electoral-vote margin is so large that refusing to certify Michigan’s votes would not change the outcome. All it would do is disenfranchise this state’s voters.

And then there’s federal law, backed by criminal penalties. Any refusal to certify an election based on meritless innuendo would likely violate the Voting Rights Act of 1965. Section 11(a) makes it illegal to “willfully fail or refuse to tabulate, count, and report” lawful votes.

Stick a pin in this for any county canvas boards in Arizona who think they can delay certification of the vote.

It’s as simple as it sounds. It’s a felony. And that may help explain why you’ve rarely heard of officials refusing to certify an election.

[T]here are plenty of reasons why a delay in canvassing won’t actually change the result, and why state canvassing boards shouldn’t be expected to engage in futility. But even in the unlikely event that a few officials forsake their duty, the law should promptly bring this over-extended drama to a close.

Despite this certain outcome, Michigan House Speaker Lee Chatfield suggested the possibility of a “constitutional crisis” during an interview on Fox News Sunday morning. Michigan House speaker floats possibility of ‘constitutional crisis’:

The Board of State Canvassers features two Republicans and two Democrats. Many legal experts believe the panel has a [a non-discretionary ministerial] duty, under Michigan law, to certify the results Monday.

“If there were to be a 2-2 split on the State Board of Canvassers, it would then go to the Michigan Supreme Court to determine what their response would be, what their order would be,” Chatfield, R-Levering said on “Fox & Friends” Sunday. “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.”

And it won’t occur now. The court will issue a writ of mandamus requiring certification.

In a statement Friday, the League of Women Voters of Michigan, the American Civil Liberties Union and the Detroit Branch of the NAACP urged the Board of State Canvassers to certify the election tallies.

“The Board of State Canvassers participates in a very straightforward and perfunctory process,” John Pirich, a longtime elections attorney in Michigan, said in the groups’ press release. “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.”

If the board certifies the results, under state law, Michigan’s 16 electoral votes will go to Biden, who won the state by 14 times the margin Trump won by four years ago. The Electoral College meets on Dec. 14.

Many legal experts believe if the board doesn’t certify the results, the courts will order the results be certified. State Sen. Jeremy Moss, D-Southfield, referenced this expectation, highlighting a 2005 Court of Appeals ruling where the panel was forced to certify a petition.

“GOP leaders know this, instead choosing to sow doubt,” Moss tweeted. “But our system will work.”

One way or another, despite the Trump campaign’s illegal interference to prevent final certification of the vote in Michigan, the vote will be certified for Joe Biden.

For further legal analysis, see election law expert Richard Pildes at the New York Times, Why Trump Will Fail in Michigan.