Certification Day in Michigan
At high noon.
At noon central time the Michigan Board of State Canvassers is set to certify the votes cast in the 2020 general election. Via the NYT, here’s What We Know About a Suddenly Important Michigan Elections Board, with the most salient being the following (emphasis mine):
While election law experts say the certification vote is a strictly ministerial duty that the board members are obligated to fulfill, political operatives in Michigan are preparing for a chain of events in which the two Republicans on the board follow the Trump campaign’s wishes.
A count has been done. Their job is to certifying that the count has been done so that the results can made official. This does not stop further audits or investigations if needed. Indeed, if you think about it, how can unofficial results be challenged? A certified number and the commensurate records are needed as something to challenge.
As the piece notes:
Michigan’s Democratic secretary of state, Jocelyn Benson, said on Sunday that state law dictated that no audit or investigation could be done until the election was certified, because state elections officials cannot legally gain access to poll books or ballot boxes before then.
CNN’s write-up tells us What to know about Monday’s Michigan State Board meeting to certify election results:
The role of the board is very narrow and limited. It is to canvass and certify election results. Michigan election law experts told reporters on a press call Friday that the language of the law, which states that the board “shall canvass the returns,” is key to understanding the requirements of the board.
“That’s a mandatory requirement,” John Pirich, a former assistant attorney general to the state of Michigan and current law professor at Michigan State University, said when explaining the laws that govern the board.
“The Michigan Supreme Court has been very clear that ‘shall’ means ‘shall.’ It’s mandatory. It’s ministerial. They have no choice,” said Mark Brewer, the longest serving chair of the Michigan Democratic Party and an attorney at the lawfirm Goodman Acker.
The board cannot ask for an audit prior to certification, according to Michigan law.”It’s clear. It says after certification, and it’s not to be used for recounts or certification issues,” Pirich said, referring to the law.
The NYT piece has bios of the four commissioners, and given the descriptions of the Republican members, it is not outside the realm of the possible for them to refuse to certify, as one member is a public supporter of Trump, and the other has already issued concerns about minor discrepancies in past elections:
Norm Shinkle, 70, of Williamston, near Lansing, is an open supporter of Mr. Trump’s, volunteering for the campaign and even singing the national anthem at a rally for the president in Michigan last month.
A longtime politician in Michigan, he has served as a poll challenger in the past. His wife, Mary Shinkle, was a poll challenger this year at the TCF Center in Detroit, where absentee ballots were counted, and she filed an affidavit complaining about the tense environment there.
Aaron Van Langevelde, 30, of Charlotte in mid-Michigan, is the unknown quantity on the board. Appointed in 2018, he has declined interview requests from The New York Times and other news outlets.
After the state’s primary elections in August, he said he was seriously worried about the number of precincts that had voting disparities in Detroit, despite the fact that the problems were relatively minor, and expressed reluctance to certify the results without a pledge that the secretary of state would take control over the city’s elections.
“I want to make sure we’re doing whatever we can to prevent the same thing from happening in November,” he said at the time. “That would be a disaster.”
So, we shall see.
Should there be a deadlock, the likely results would be the court ordering the certification since there is no grounds not to certify the results.
Further, two law professors note in a column in the Detroit Free Press: Refusing to certify legitimate votes is a felony
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.
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.
I suspect it won’t boil down to charges of this nature, but given the way the 2020 process is playing out, I won’t be shocked if we get a 2-2 deadlock and then an exasperated judge having to order the Commission to do its job.
In normal times this would be an utterly boring an unremarkable process, but, alas, times are not normal.