LANSING — For what is believed would be the first time in history, Michigan’s elections board could deadlock Monday on certifying the state’s presidential election results.
By law and by practice, certification by the Board of State Canvassers — comprised of two Democratic appointees and two Republican ones — is supposed to be a routine sign-off. Certification acknowledges that Michigan’s unofficial results match the tabulated vote counts. It follows a two-week period of double-checking in Michigan’s 83 counties, where some inaccuracies in the unofficial numbers, as is normal, were found and corrected.
But these are not normal times.
The climate is hyper-partisan, disinformation is rampant, and Republican President Donald Trump and his team of lawyers are spreading false claims, working to somehow overturn election results in Michigan and other key states, and upend President-elect Joe Biden’s victory in the Electoral College, where Biden rung up 306 electoral votes to Trump’s 232.
“This system was set up decades ago, during a time when American politics and Michigan politics were more bipartisan,” said David Kimball, a professor of political science at the University of Missouri in St. Louis. By having a bipartisan board carry out the pro forma function of election certification, “it would signal to everyone that both parties believe the results are fair,” he said.
“What could go wrong?”
The prospect of a deadlock — which is by no means assured at the state level but did occur for a few hours Tuesday at the similarly structured Wayne County Board of Canvassers — has experts questioning whether a four-member board, halved along partisan lines, is still workable in a world where Republicans and Democrats disagree not just on policy, but on facts. Some also ask whether Michigan’s system needs a built-in tiebreaker, as is found in other Midwest states such as Ohio, Wisconsin and Minnesota. Still others say it is time to take the politics out of election certification, just as Michigan attempted to do with the contentious issue of drawing political boundaries in 2018, when voters created an independent citizen redistricting commission.
“A better model would attempt to displace partisanship altogether rather than build it into the system,” said Barry Burden, a political science professor and director of the Elections Research Center at the University of Wisconsin.
At the Michigan Board of State Canvassers, Republican board member Norman D. Shinkle said he has many concerns, ranging from election equipment used in Michigan to the absentee voting process, to transparency issues, and he is leaning toward seeking a delay in certification. Shinkle’s wife, Mary, was a Republican poll challenger at the TCF Center in Detroit and signed an affidavit used by the Trump campaign in a federal lawsuit that has since been withdrawn.
It would take Shinkle’s vote plus one other to delay certification. The other Republican member, Aaron Van Langevelde, has not said how he plans to vote. Van Langevelde, an attorney and former assistant prosecutor in Branch County, works for state House Republicans, whose leader, Speaker Lee Chatfield, R-Levering, flew to Washington, D.C., on Friday with a handful of other GOP lawmakers to meet at the White House with Trump.
Chatfield and state Senate Majority Leader Mike Shirkey, R-Clarklake, said after the meeting with Trump they have not been “made aware of any information that would change the outcome of the election in Michigan,” and intend to follow the normal process.
But on Saturday, Ronna McDaniel, chair of the Republican National Committee and a Michigan resident, and Laura Cox, chair of the Michigan Republican Party, wrote the board asking it to delay certification for 14 days, pending an audit, citing “procedural and accounting irregularities” such as discrepancies between the number of people recorded as having cast ballots at various Detroit precincts and the actual number of ballots counted.
Election officials have said such poll book imbalances are not uncommon in precincts across Michigan and are not evidence of fraud. Instead, they typically are the result of human error, such as a reporting oversight when an absentee ballot envelope arrives and is later found not to have a ballot inside.
Secretary of State Jocelyn Benson says postelection audits are planned, including a performance audit in Wayne County, but under Michigan law such audits can only be conducted after results are certified.
The meeting of the Board of State Canvassers, which votes independently of both the Legislature and the governor, is set for 1 p.m. Monday and can be viewed on the Facebook page of the Michigan Secretary of State’s Office.
If the board does not vote Monday to certify Michigan’s election results, legal experts don’t expect it will pose a serious threat to appointing the state’s presidential electors.
If the board showed no signs of acting to certify, someone would almost certainly sue in the Michigan Court of Appeals, seeking an order requiring the board to do so. Such an order could then be appealed to the Michigan Supreme Court. Once court proceedings are concluded, preferably before the Dec. 8 “safe harbor” date by which Congress is required to accept Michigan’s electoral votes, Gov. Gretchen Whitmer would certify the state’s 16 presidential electors ahead of the Dec. 14 convening of the Electoral College.
A costly battle
The delays and costs of a possible court battle point to a weakness in Michigan’s system — the lack of a nonlitigious mechanism to break a 2-2 deadlock, said John Fortier, director of governmental studies for the Bipartisan Policy Center in Washington, D.C.
“Probably it is better to have a tiebreaker earlier in the system than go to court,” Fortier said.
But in the Midwest, most officials who serve as tiebreakers are not necessarily nonpartisan or neutral. That’s not ideal, either.
In Ohio, the secretary of state, who is an elected party official, breaks a tie and that decision is final.
In Wisconsin, the six-member commission is equally divided between Republicans and Democrats, but it is the statutory role of the commission chair — which rotates between the two parties — to certify election results.
In Minnesota, a deadlock is not possible, because the State Canvassing Board has five members. The elected secretary of state serves as board chair and fills out the board by appointing two members of the state Supreme Court and two judges from a district court.
At one time, Michigan’s Board of State Canvassers could not have a tie vote, either. One political party or the other used to have a majority on the board. Contentious recounts in the 1950s led to a constitutional amendment intended to prevent partisanship from interfering with the certification, according to attorney and former Michigan Democratic Party chair Mark Brewer.
Fortier said the idea of policing elections by having the two major political parties watch each other has been central to the U.S. system for more than a century. It goes beyond the certification process to include poll watchers and the fact that in some jurisdictions two keys — one held by a Republican and one by a Democrat — are required to open doors to some rooms where ballots are counted or stored.
It’s not common in administering elections in the rest of the world, but in the U.S., “not having some neutral body that we trust, we actually put the parties there to kind of watch each other,” he said.
“I do think it’s very baked into the system and it would be very hard to change.”
In Michigan, althoughthe prospect of the Board of State Canvassers failing to certify a presidential vote is new, the board being paralyzed by 2-2 partisan deadlocks is not.
The board has repeatedly split along partisan lines about certifying ballot proposals before the Michigan Court of Appeals has had to step in. Board members’ concerns about the quality of the signatures collected for certain petitions have consistently aligned with their partisan views about the proposals themselves.
In 2004, Democratic board members would not vote to certify a proposal defining marriage as a union of one man and one woman, or to place Ralph Nader on the ballot as an independent presidential candidate, where he would be more likely to draw votes from the Democratic nominee than the Republican one.
In 2001, Republican members refused to certify a question that would put Michigan’s concealed weapons law at risk, and, in 2002, the GOP board members forced a deadlock over a proposal to let voters decide whether to spend most of the state’s tobacco settlement money on health care and antismoking programs.
There have also been board of canvassers fights over election results, though not a presidential race.
In 2013, the Michigan Court of Appeals and the Board of State Canvassers both got involved in a dispute over how the Wayne County Board of Canvassers counted write-in ballots when Detroit Mayor Mike Duggan sought the office he now holds for the first time.
During the primary election, in which Duggan entered the race late as a write-in candidate but ultimately placed first, the Wayne County Board of Canvassers initially refused to count more than 20,000 write-in votes for Duggan because of a technical rule violation. Election workers had tallied up and recorded the ballot counts using numerical symbols, instead of the hashtags that were supposed to be used for write-in votes.
And way back in 1963, the two Democratic members of the Board of State Canvassers walked out of a meeting held to certify statewide election results, temporarily delaying certification of Michigan’s new constitution, over objections to the way the vote was conducted. The major objection voiced by Democrats was that the proposal related to the new constitution should have been, but was not, presented to voters on a separate ballot from the one on which partisan candidates were listed, according to a report in the Lansing State Journal at the time.
But generally, Kimball said, partisan gridlock on such boards is mostly a new and growing phenomenon, also seen on similarly structured federal bodies, such as the Federal Election Commission.
“It really speaks to the politics that we’re currently in — it’s crazy,” Kimball said.
Asked to point to a better model, both Burden and Kimball pointed to one that no longer exists — in Wisconsin.
That state’s Government Accountability Board, created in 2008 after a legislative scandal involving lawmakers enlisting state employees to work on political campaigns, was composed of six retired judges and counted election certification among its duties.
Seen as a uniquely nonpartisan institution, the board was abolished in 2015 “by Republican lawmakers furious over its role in investigating former Gov. Scott Walker’s 2012 campaign after he was recalled,” the Wisconsin State Journal reported.
Burden said certification could be assigned to bodies similar to the redistricting commissions already in existence in California and now being developed in Michigan, which have a certain number of members from each party as well as members not affiliated with either party.
But Fortier said such bodies can also be controversial, as Republicans in particular are suspicious of purportedly nonpartisan bodies that they do not view as acting that way. “These neutral tiebreakers often take a lot of heat, too,” he said.
Checks and balances
Martha Kropf, a political science professor at the University of North Carolina in Charlotte, said bipartisan boards can be a problem, but having both parties involved can also be a helpful check because each makes sure the other does not cheat.
She is not sure Michigan’s system, in which the courts essentially act as a tiebreaker, is any worse than other systems that are out there.
“Courts also exist as a check of our system,” she said.
Courts can act quickly when they want to, said Kropf, noting the speed with which the U.S. Supreme Court acted during the dispute over the Florida results in the 2000 presidential election.
At least one Midwest jurisdiction — Kentucky — moved recently from a set-up in which it had a built-in tiebreaker to resolve deadlocks to a set-up in which it does not, said Jared Dearing, executive director of that state’s Board of Elections.
Of the board’s 10 members, two are nonvoting, and the other eight are evenly split between the two parties, Dearing said. The elected secretary of state used to have a tiebreaking vote, but that changed about 18 months ago, he said.
According to ProPublica, the GOP-controlled Legislature removed Secretary of State Alison Lundergan Grimes, a Democrat, of her authority over the State Board of Elections and took away her vote on the board after reports that her office used the state’s voter registration system to look up information on political rivals, in addition to other alleged abuses.
There have been no deadlocks since the tiebreaking vote was removed, and the need for a tiebreaker was infrequent before that, Dearing said.
“When someone is appointed to the Kentucky Board of Elections, it tends to round off their political edges,” he said. “They represent their party, but they also serve a higher purpose. They serve the state and they serve all voters.”