Michigan Board of State Canvassers has clear obligation to certify election results

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Betsy Camardo of Hazel Park stands with a dog that says “Count Every Vote” outside of TCF Center in Detroit on Nov. 4, 2020. (Photo: Junfu Han, Detroit Free Press)

On Monday, Michigan’s Board of State Canvassers is scheduled to meet to certify the state’s election results.

The process for certifying results is one that typically passes unnoticed. By the time results are presented to the board for certification, the winners of the election are clear after all the votes have been cast and counted and then reviewed and certified by each county’s board of canvassers. All the state board has to do is a bit of math to add up the county results and produce statewide totals.

This year, however, widespread misinformation and false claims of election fraud made by President Donald Trump in an effort to overturn the Nov. 3 election has brought increased attention to the perfunctory role the board plays.

Skepticism about the election process voiced by one of the board’s Republican members, Norman D. Shinkle, has also created a cloud of uncertainty over what will happen Monday when the board members meet. Here’s everything you need to know about the board, what it does and what could happen.

Absentee ballots are processed by election officials in the Detroit Elections Department Absentee Ballot counting room at TCF Center in Downtown Detroit on Wednesday, Nov. 4, 2020.  (Photo: Kimberly P. Mitchell, Detroit Free Press)

What is the Board of State Canvassers?

Created by the Constitution of Michigan of 1850, the primary responsibility of the Board of State Canvassers is to certify Michigan’s election results.

The board is a four-member body made up of two Democratic and two Republican members, but it was not always structured this way. One political party used to have a majority on the board. Contentious recounts in the 1950s led to a constitutional amendment to prevent partisanship from interfering with the certification, says attorney and former Michigan Democratic Party chair Mark Brewer. This change in the state constitution over half a century ago split the board evenly along partisan line so that the board would not be dominated by members of one political party.

More: Who makes up the Board of State Canvassers?

More: Who makes up the Board of State Canvassers?

How does one become a member of the board? 

Members of the board are appointed by the governor with the advice and consent of the Senate to serve four-year terms. The nominees for the board come from the major political parties’ state central committees. Each party sends three nominees to the governor for each position on the board that is up for reappointment and the governor selects one of the party’s nominees. Upon taking office, each member has to take an oath of office promising to uphold the U.S. Constitution and Michigan Constitution.

How does the board certify election results? 

After the election, county boards of canvassers review the votes cast in each county and certify the county’s election results. The boards for each of Michigan’s 83 counties have already sent a certified copy of the election results to Michigan Secretary of State Jocelyn Benson as required by law. It now falls to the State Board of Canvassers to certify Michigan’s statewide results. Michigan election law lays out a clear process for doing so.

The board is required to meet on or before the twentieth day after  the election. Brewer said “the board has always, unanimously certified on that day.” The board is scheduled to meet Monday.

During the meeting, the Secretary of State will provide the members of the board the election results of each county. The board is required to review and certify the results. The vote totals provided by the county have already been canvassed by each county’s board to make sure three numbers match: the number of ballots recorded in each precinct’s poll book, the number of ballots from a precinct tabulated in the counting machine and the number of counted ballots held in the precinct’s ballot container. The canvass reports any discrepancies between these numbers.

The results certified by the county are used to add up the vote totals for federal and state office as well as ballot proposals. Counties do not have the power to do that. Steven Liedel, an attorney who specializes in state constitutional law, said if there’s a legislative race that includes Wayne and Oakland counties, for example, Wayne County can’t do anything with regard to Oakland County and vice versa. A body at the state level needs to certify those results. That’s what the Board of State Canvassers does.

“This is just about the math, and everyone is saying here’s the math and both parties agree that the math is the math,” Liedel said.

Added Brewer, “These meetings have been routine, ministerial, non-discretionary on the part of the board and that’s a very proud history Michigan has had for the last 65 years of this board always acting in a unanimous, bipartisan fashion to certify our elections.”

John Pirich, a former assistant attorney general who now teaches at Michigan State University Law School, agreed. “It’s a very straightforward and perfunctory process.”

What is the board doing when it certifies election results? Are they certifying that the election results are accurate? What does a board member do if he or she does not believe the results are accurate?

When the board certifies the election results, it is simply putting together the results provided to members by the county boards of canvassers to produce the official statewide results. “Essentially they are compiling and certifying the results for state elections and proposals based upon the county canvassers. That’s it,” Liedel said. Members of the board cannot withhold their support for certifying the election because they believe the results are inaccurate or have an issue with the election outcome. Under Michigan election law, any recount or audit of the election results must take place after they are certified.

Are the members of the board required to certify the election results? 

Yes. Experts in Michigan election law agree that the members of the board have a clear constitutional and legal obligation to certify the results.

What happens if the board deadlocks 2-2 along partisan lines in certifying the election? 

The Office of the Attorney General would likely advise the members of the board of their legal duty to certify the results. If the members continue to oppose certification, they would likely face lawsuits filed in the Michigan Court of Appeals asking the court to order members to certify the election. Any “aggrieved party” could sue, including candidates for office, a state political party, individuals nominated to serve as presidential electors, the secretary of state, sponsors of a constitutional amendment, the attorney general on behalf of the state, voters or voter advocacy organizations. The governor could also sue the board. The members of the state board are executive officers under the supervision of the governor, so Gov. Gretchen Whitmer could initiate court proceedings to force the members to fulfill their constitutional and legal obligations.

What happens if the members refuse to show up at the meeting or walk out of the meeting before certifying the results?

These instances constitute a failure by the board to fulfill its legal obligation and would similarly lead to legal action against the members forcing them to certify the results. Brewer said, “If folks don’t show up or they walk out or they fail to do their duty, the same set of laws applies whether you vote no, whether you don’t show up, whether you try to boycott the meeting by walking out, you’re still ignoring your duty under the law.”

Has the board ever been taken to court?

Yes, mostly for failing to certify ballot proposals. For instance, in 2004, Citizens for Protection of Marriage, a group opposed to gay marriage filed a petition to place a constitutional amendment on the ballot for that year’s general election. When the members of the board declined to certify the proposal, Citizens for Protection of Marriage filed a complaint for mandamus in the Michigan Court of Appeals to compel the board to certify the group’s petition. The court issued an order of mandamus, and the board approved the ballot initiative.

How many votes are needed to certify the election results? 

Any action by the board, including certifying results, requires the votes of three members, ensuring the support of at least one member from each political party.

Could a delay in the certification derail the process for appointing Michigan’s presidential electors?

If the board does not vote Monday to certify Michigan’s election results, experts don’t expect it will pose a serious threat to appointing the state’s presidential electors. If legal action against members of the board is necessary to certify the results, experts expect the court will quickly step in to order the board to fulfill its legal duty. Under the Electoral Count Act, if states resolve legal disputes and certify their election results by Dec. 8, Congress is required to accept the state’s electoral votes. Missing this deadline is unlikely. “The deadlines are all set up to give states plenty of time to determine their results and resolve any conflicts in advance of the ‘safe harbor’ date,” said Adav Noti, senior director for trial litigation and chief of staff for the Campaign Legal Center, a voter advocacy organization. If Michigan blows past the ‘safe harbor’ deadline, the results can still be certified in time for Whitmer to appoint the state’s presidential electors by Dec. 14, the day the Electoral College convenes.

Clara Hendrickson fact-checks Michigan issues and politics as a corps member with Report for America, an initiative of The GroundTruth Project. Contact her at [email protected] or 313-296-5743 for comments or to suggest a fact-check. 

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