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.

FILED UNDER: Campaign 2020, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Sleeping Dog says:

    But, but, but,,,

    What part of shall, don’t you understand.

    Sheesh.

    4
  2. Mister Bluster says:

    At noon central time the Michigan Board of State Canvassers is set to certify the votes cast in the 2020 general election.

    Per WikiP only the four westernmost counties in the Upper Peninsula of Michigan are on Central Standard Time so you are correct that it will be noon somewhere in Michigan.
    However it will be 1pm Eastern Standard Time in Lansing.

    2
  3. jpe45 says:

    The notion that any of this would be criminal is positively insane.

  4. @Mister Bluster: I had read that the meeting was at 1pm eastern, so I am right even if I was thinking Michigan was in central time 🙂

  5. Michael Reynolds says:

    @jpe45:
    Why?

    1
  6. DrDaveT says:

    @jpe45:

    The notion that any of this would be criminal is positively insane.

    It’s pretty much the electoral equivalent of the government arresting you and confiscating your property when there is no evidence that any crime was committed, much less that you did it.

    Why would that be criminal? Seems pretty clear to me.

    4
  7. Teve says:

    Ok so apparently the Michigan AG and SoS hinted to the board members that anyone who didn’t vote to certify would be prosecuted. Journalists on Twitter are saying that changed the odds.

    2
  8. Teve says:

    Yup they’re going to certify.

    1
  9. Joe says:

    @Teve:
    I hope you’re correct, but I would assume the Democrats have the writ of mandamus fully drafted and available to file in the appellate court the very second that the Republican Commissioners vote against certification. If at least one of the Republican Commissioners votes to certify, you just leave the writ in your pocket.

    I am not at all sure that the State AG would have the authority to prosecute under the Voting Rights Act, a federal law.

    1
  10. Teve says:

    @Joe: the Republicans are asking big obvious questions to the rules people that cause the rules people to lay out, clearly, plainly, that they are required to certify, they have no choice. For an audience of one orange man, i am sure.

    1
  11. Mister Bluster says:
  12. OzarkHillbilly says:

    @DrDaveT: It’s pretty much the electoral equivalent of the government It’s pretty much the electoral equivalent of the government arresting you and confiscating your property when there is no evidence that any crime was committed, much less that you did it..

    Well, right now the government confiscates private property when there is no evidence that any crime was committed, much less that the person involved did it and they do it without arresting anyone.

    Jus’ sayin’…

    2
  13. Mister Bluster says:

    Live Linkto Michigan Board of State Canvassers

  14. Mister Bluster says:

    Per a remark I see on the link page this has been going on for 2 hours.

  15. Joe says:

    @Mister Bluster:
    Don’t worry. Teve tells me the outcome is a foregone conclusion (and I hope he’s right).

  16. Joe says:

    @Joe: And Teve is proved correct! One of the two Republican commissioners had signaled his intention to certify.

  17. Teve says:

    Journalists love to gossip on Twitter.

    1
  18. ptfe says:

    Man, listening to this just makes it sound like the GOP poll watchers were a nightmare trying to eliminate votes from the start. Democrats can be defeated on merits, but Republicans have given up governance and given up any cogent policy objectives in favor of grift, theft, and process subversion. What a pathetic way for a party to try to cling to power.

    6
  19. Teve says:

    @timalberta

    Republican canvasser AARON VAN LANGEVELDE announces he will vote to certify Michigan’s election results.

    It’s over, folks. Joe Biden officially wins Michigan.

    2
  20. HarvardLaw92 says:

    The vote has been concluded. The board voted to certify the results. Michigan is over.

    3
  21. JohnSF says:

    And it’s done.

    4
  22. Kathy says:

    @JohnSF:

    And our long multinational nightmare is almost over.

    5
  23. dazedandconfused says:

    @HarvardLaw92:

    Over? Consider the mentality driving this:

    https://www.youtube.com/watch?v=tG25f13s2JA

  24. HarvardLaw92 says:

    @dazedandconfused:

    Yes, over. The next, and final step, is for the Democratic governor of Michigan to sign off on the results. Once that occurs, and it obviously will, the electors are locked, well in advance of the requirement spelled out in the Electoral Count Act of 1887. Michigan election law is pretty crystal clear. There is no mechanism by which Trump can subvert those votes. It’s over.

    Note also that Little Miss Moffet at the GSA just signed off on ascertainment as well. It’s over.

    2
  25. DrDaveT says:

    @OzarkHillbilly:

    Well, right now the government confiscates private property when there is no evidence that any crime was committed, much less that the person involved did it and they do it without arresting anyone.

    Do they?

    I assume you’re talking about taxes, but taxes don’t actually confiscate anything that is yours. Instead, they take a cut of transactions — you getting paid for labor by your employer, you purchasing something at a store, you selling some stock, etc. In exchange for providing the infrastructure that makes those transactions possible. The money was never yours until after the government took their cut; sometimes they lend you the use of it for a time before requiring you to give it back.

    The Republican allergy to taxes is caused by a fundamental misunderstanding of what “private property” is. It’s on a par with the 4-year-old who insists that the toy is his, not mommy’s.

  26. Kathy says:
  27. Matt says:

    @DrDaveT: Ozark is talking about asset forfeiture and how some police departments use it to straight up rob out of town people…

  28. Matt says:

    @Matt: Hell the people don’t even have to be out of town. What got a lot of people to notice this were the towns in Texas who were robbing out of town people.