Much is being reported in the news concerning the certification of the Michigan election. This article seeks to set the record straight and clarify what we know at this moment in time.
Some of the confusion is related to the RNC letter dated Nov. 21 calling for a delay in certification sent to the Michigan Board of State Canvassers by the Michigan Republican Party(MGOP), represented by Laura Cox and the Republican National Committee(RNC), represented by Ronna McDaniel. The two groups requested a 14-day delay of certification to investigate “anomalies and irregularities” alleged to have occurred on Nov. 3. Republican Senate candidate John James also requested a delay on Nov. 20. Michigan canvassing official Norman Shinkle(R) also sought to delay certification on Nov. 19.
Cox and McDaniel have argued “it’s possible to investigate some claims made in the affidavits and unbalanced poll books in Wayne County while still complying with the Dec. 8 deadline for certification. The states are required to certify by the “safe harbor” date or invite court or congressional intervention.” All states must certify before the Electoral College meets on Dec. 14 and any challenge to the results must be resolved by Dec. 8. With certification, the state can proceed with formalizing the election of officials up and down the ballot. Governor Whitmer would then certify the slate of 16 people already chosen by Democrats to cast the state’s electoral votes for Biden. They’ll cast those votes when the Electoral College meets on Dec. 14.
Unfortunately, state law prohibits the State Board of Canvassers from delaying certification for any reason if the the Secretary of State, Jocelyn Benson, “presents complete returns from the county canvasses.” In a meeting on Nov. 23, under motion number one in the meeting, the board certified the votes as presented. Shinkle abstained from the vote, alluding to election issues in Detroit, while fellow Republican and Vice Chair Aaron Van Langevelde voted with the board’s two Democratic members. “There is no excuse for confusion and uncertainty that seems to follow every election in our state,” Shinkle said in a statement before the vote.
Van Langevelde explained in the meeting that certifying the results is “their required duty under the law.” The Board simply has no legal standing to delay such certification to conduct an audit, recount or any other investigation. “This board must respect the authority entrusted to it and follow the law as written. We must not attempt to exercise power we simply don’t have,” said Van Langevelde, a staff attorney and policy adviser for the state House Republican Caucus. “The law is pretty clear here. This board has such limited authority,” he continued.
In the rare instance (has never happened) that the Board were to deadlock 2-2 on certification, Michigan House Speaker, Lee Chatfield (R) explained in an interview that,“[i]f 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. 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,” he continued.
Michigan Election Law Procedures for the Board of Canvassers
A detailed thread, by Steven Leidel, summarizing the law surrounding certification of the election in Michigan can be found below. Leidel was Chief Legal Counsel to a former Michigan Governor and specializes in, among other things, legislative drafting, strategy and interpretation. A comprehensive summary of the state laws governing the election can be found here.
The Michigan Board of State Canvassers lacks discretion to take additional time to certify state results if the Secretary of State presents complete returns from the county canvasses.
It's duties are ministerial and mandatory under the Michigan Election Law.
— Steven C. Liedel (@SCLiedel) November 22, 2020
Audits and Recounts Happen after Certification
Jake Rollow, Communications and External Affairs Director for the Office of the Secretary of State, said in a statement:
“Candidates have a right to request a recount after election certification, and if a recount were to find a different winner, that could indeed change the outcome of the election. They are also aware that any claim of election misconduct or fraud should be reported immediately to law enforcement or the Bureau of Elections. Audits play a different role in Michigan elections – to examine and identify errors for future improvement – and Michigan law prohibits audits prior to state certification of election results. As stated earlier this week, multiple audits are already planned after certification has occurred.”
When he speaks of planned audits, he is referring to standard procedural audits found in the state post election audit manual that are conducted after elections in Michigan as an “educational tool to ensure proper counts” and procedures in future elections. “Information collected as part of the post-election audit process will be used as an educational tool for all levels of election administration. Assignments will be made in the eLearning Center to reinforce deficiencies found of the local and/or county clerks.” The manual outlines audit procedures for all the components of conducting an election in the state of Michigan.
Rollow also stated that, at this time “no evidence of widespread misconduct or fraud has been reported, and judges initially appointed by both Republicans and Democrats have found allegations of widespread fraud to be wholly meritless.” He added that “[t]he clerical errors identified in this election by county canvasses are commonplace in the state and across the nation.”
It is important to note that during the Board of Canvasser meeting on Monday, motion number three “requested that the Michigan Legislature conduct an in-depth review of Michigan election processes and procedures to address concerns that have been raised by experts and citizens about our elections in order to assure our citizens that Michigan elections are accurate, transparent and fully protective of all citizens constitutional rights.” The motion was moved by Shinkle; supported by Matuzak. Ayes: Bradshaw, Van Langevelde, Matuzak, Shinkle. There were no nays and the motion was carried.
On Thursday, Nov. 20, President Trump met with senior Republicans in Michigan’s state Legislature at the White House. Their statement after the meeting indicated that they were not, to date, “aware of any information that would change the outcome of the election in Michigan [and] as legislative leaders.” On Sunday, House speaker Chatfield said that Trump did not ask lawmakers to interfere in the election certification process.
MI lawmakers who met with Trump today:
“We have not yet been made aware of any information that would change the outcome of the election in Michigan and as legislative leaders”
“Michigan’s certification process should be a deliberate process free from threats and intimidation” pic.twitter.com/ErpDL6Rf9z
— Jordan Fabian (@Jordanfabian) November 20, 2020
The Wayne County certification process was also a rocky one, resulting in great confusion about the state of the certification there. A Nov. 19 article, published by Uncoverdc, summarizes the difficulties two election board Republicans, Chairperson Monica Palmer and fellow board member William Hartmann faced when they refused to certify the vote in the state’s largest county that includes the city of Detroit. They maintained that the vote was “out of balance countywide.” The two board officials finally certified the county with the condition that an audit would be initiated to look at the irregularities there. Secretary of State Benson said on Nov. 19 that she planned to conduct several audits, including one for Wayne County.
In a statement later in the day, Benson seemed to backtrack on her commitment to look at Wayne county irregularities. The document posted in her thread refers to what is called a Risk Limiting Audit–like the procedural one referred to above. This audit shows no such audit is planned of Wayne County. This should not be surprising given her seemingly unwavering insistence that the election was won fair and square by Biden. Not once did she show support for the canvassers who fought certification along the way due to material concerns over irregularities.
Mich. Sec. of State @JocelynBenson on Wayne County GOP members refusing to certify election results:
“Nothing more than an attempt to misuse these roles to play partisan politics and cause confusion which, again, is kind of the norm that we’ve seen throughout this election.” pic.twitter.com/AYDUQhGjPS
— All In with Chris Hayes (@allinwithchris) November 18, 2020
The statewide risk limiting audit will be accompanied by the routine local procedural audits that will review the accuracy and process of elections in local communities, as was also carried out following the Nov 2019 election & the May 2020 election. https://t.co/vyZtvPekzz (4/9)
— Jocelyn Benson (@JocelynBenson) November 19, 2020
Benson’s Nov. 23 op-ed written on the heels of the state certification on Nov. 23 seems to confirm her position that a specific audit is unnecessary. She advocates only for the procedural risk limiting audit. She explains that “[a] risk-limiting audit is the most statistically reliable method of evaluating the tabulation of ballots in an election. It involves drawing a large random sample of ballots in any given jurisdiction to confirm that, when ballots are visually inspected, the outcomes closely match the results reported by tabulation machines.”
In the article she doubles down, saying that it is “important to be clear that post-election audits are designed to identify issues and opportunities for improvement in future elections. They are not conducted or performed in response to false or mythical allegations of “irregularities” that have no basis in fact. Where evidence exists of actual fraud, it should be submitted in writing to the Bureau of Elections, which refers all credible allegations to the Attorney General’s office for further investigation. It’s crucial to understand that no evidence of widespread wrongdoing has been presented to date, and judges appointed by both Republicans and Democrats have denied numerous lawsuits on grounds that their allegations lack any merit at all.”
Wayne County Lawsuit
There is, however, a decent shot at prevailing for a “results audit” in Wayne County on some fronts. A results audit determines whether votes were counted accurately. A Nov. 8 election crimes lawsuit, Costantino v. Detroit, filed by David Kallman with the Great Lakes Justice Center. The press release can be found here. The suit charged Wayne County elections officials knowingly allowed “numerous issues of fraud and misconduct” in the general election there. The lawsuit requested a preliminary injunction from the Supreme Court of Michigan to stop certification of the election. However, yesterday’s Board of Canvassers’ certification rendered moot the request for an injunction to stop certification results. Kallman explained, in an interview on War Room Pandemic Ep. 531 today, that he was issued an invitation to come back in “a narrow decision.” The interview starts at minute marker 43:42
“A number of the justices in concurring opinions and one dissent, actually came out very strongly that the issues we’ve raised are still relevant, need to be addressed immediately and encouraged us to go back to the trial court and ask for an emergency expedited hearings on the issue of the audit. The justices made it clear that the audit was not precluded by the certification yesterday.” Two of the justices made it clear to him that the evidence was “very compelling and it was very troubling to them.” Justice Brian Zahra “made quite a comment when going through the different allegations…with the fraud and the poll challengers not being allowed to do their legal duty.”
The lawsuit is substantive with multiple witnesses who signed affidavits alleging various election crimes including:
-Validating ballots the name showing on the ballot did not appear in the official voter database.
-Election workers were ordered to not verify voters’ signatures on absentee ballots, to backdate absentee ballots, and to process invalid ballots.
-The suit claims election workers processed ballots that appeared after the election deadline and falsely reported those ballots had been received prior to the election evening deadline.
-And the suit claims many of the invalid ballots won’t be hard to pinpoint, saying election workers in Wayne County altered already illegal ballots by inserting a birthdate of
Kallman plans to “go back immediately to the trial court as directed by the supreme court to ask for an emergency hearing and have the issue of the audit, which is really the main thrust of what we want. We want a results audit of the Wayne County election.”
Rules for Recount
State level recounts “for statewide offices, multi-county legislative offices (including U.S. Representative in Congress and State Representative), and judicial offices canvassed by the Board of State Canvassers” the deadline to file a recount petition “elapses 48 hours after the Board’s approval of the motion to certify the results of the election as official. MCL 168.879(1)(c).”
The deadline for legislative offices that are wholly contained within a single county (including U.S. Representative in Congress – 13th District and certain State Representative districts), the recount petition filing deadline elapses 48 hours after the adjournment of the Board of State Canvassers meeting at which the results were certified as official. However, because of the way the calendar falls this year with Thanksgiving, Nov. 30 is this year’s deadline.
The full document detailing procedures, fees and deadlines associated with recounts can be found here.
In a Presidential election, the procedure is as follows:
The candidate “must now file a notarized statement saying they have “good faith” that they could win a recount. They must identify each precinct they want recounted and pay a deposit to the county for each precinct depending on how close the race is. If the recount changes the election results, they get their money back. If it doesn’t, the county keeps the money. Because Trump lost to Biden by 2.8 percent of the overall state votes cast in the race, the Trump campaign would have to pay $125 per precinct to recount. There are 503 precincts in the City of Detroit, so if he wanted to recount all of them, it would cost $62,875. Statewide costs could approach $1 million.” An automatic recount is triggered for a statewide race if the final total puts the top two candidates within 2,000 votes of one another. The recount is conducted by hand.
The security of the ballots is paramount. After the first ballot count, ballots are securely stored. A precinct may not be recounted, for example “if there is an opening found in a ballot bag, if the numbers on the ballot box seals are different than those in the poll book, or if the number of ballots in a precinct don’t match the total number of voters who are recorded in the poll books.” This has been a problem in Detroit in the past. During the Aug. 4 primary, the number of recorded absentee ballots did not match the actual number of ballots cast in 72% of the city’s precincts. In those cases, the original vote total for that precinct stands.
As of this date, the Trump campaign has no ongoing lawsuits or appeals in the state of Michigan contesting the election. The Trump team dropped the lawsuit on Nov. 19. Lead lawyer, Rudy Giuliani stated that they were “withdrawing our lawsuit in Michigan as a direct result of achieving the relief we sought: to stop the election in Wayne County from being prematurely certified before residents can be assured that every legal vote has been counted and every illegal vote has not been counted.”
The Michigan state legislature, however, has agreed to look at irregularities in the election. Trump Campaign Legal advisor, Jenna Ellis issued a statement today celebrating the development.
????????????NEW: PENNSYLVANIA, ARIZONA, MICHIGAN LEGISLATURES TO HOLD PUBLIC HEARINGS ON 2020 ELECTION
Trump Legal Team Statement pic.twitter.com/T0Cy0VfI0G
— Jenna Ellis (@JennaEllisEsq) November 24, 2020