This morning I started to write a post about today’s Michigan vote certification. Then I noticed that the Michigan Board of State Canvassers was scheduled to meet at 1 pm, or noon my time. So I thought, I’ll wait to see what they do. Well, it’s mid-afternoon, and I’m still waiting. There’s a live feed of the meeting here, if you want to watch what’s going on.
As I keyboard, the meeting has been going on for nearly three hours. They’re taking a recess.
The canvassing board has four members, two Democrats and two Republicans. The holdup is one of the Republicans, Norm Shinkle; there are reports that he has told people he will refuse to certify in order to hold up the whole process, which might possibly allow the Republican state legislature to void the election and choose Trump electors. Today’s meeting has been turned into a hearing on the election, with witnesses and public comments, and Shinkle has been grilling witnesses, which as I understand it is not something the board is authorized to do.
Here’s a useful article by Elizabeth McElvein at Lawfare that explains the Michigan Board of State Canvassers and what it is supposed to do. It is supposed to certify the vote. It is not authorized to investigate allegations about the election.
The Michigan Supreme Court has held repeatedly that a canvassing board wields purely ministerial powers. A board may, and indeed must, tabulate the votes submitted by the counties, but “it has no power to go behind the returns and recount the votes.” The state Supreme Court has affirmed this principle even in the face of allegations that the “election law of this State was most grossly violated.” So even if Shinkle’s allegations of massive voter fraud were true—and it’s worth repeating that there is no evidence that that’s the case—it seems unlikely that a court would permit the board to cite this as a basis for certification delay, let alone to investigate the allegations.
McElvein goes on to say that under Michigan law the current board meeting may not dissolve until they have processed the returns handed to them and certified the vote. If they fail to certify, they are commiting a felony.
Shinkle reportedly wants to hold up certification pending an audit. However, per state law, an audit can’t be performed until after certification. By all accounts the state already is prepared to audit the vote after certification.
Clara Hendrickson of the Detroit Free Press writes that Shinkle probably won’t get away with voiding the vote.
Legal experts do not expect the courts would fail to order the board to certify the election since Michigan election law is so clear on the board’s legal obligation to do so. If the two Republican members of the State Board of Canvassers fail to certify Michigan’s election results, legal experts expect lawsuits filed in the Michigan Court of Appeals would result in the court ordering the board to certify and expect an order would be upheld by the Michigan Supreme Court.
It’s also possible that Gov. Gretchen Whitmer could replace a board member in order to get the election certified. This is just exhausting.