Three members of the Michigan Board of State Canvassers voted to certify state election results. Republican Norm Shinkle abstained.
The decision by board Vice Chairman Aaron Van Langevelde to not join fellow Republican Shinkle in voting against certification allayed the fears of many that Republican board members would delay formalizing election results, likely pushing the decision to a court.
“This board must respect the authority entrusted to it, and follow the law as written. We must not try to exercise power we simply don’t have,” said Van Langevelde, a staff attorney and policy adviser for the state House Republican Caucus.
Before the meeting, Shinkle had indicated he would not vote to certify. His wife, Mary Shinkle, was one of more than 100 people who filed affidavits in support of a federal lawsuit filed by the President Donald Trump campaign alleging misconduct in Detroit.
During the meeting, he asked questions about Detroit and clearly indicated he did not trust the Michigan election system.
“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.
Some expected Van Langevelde to follow suit. However, Van Langevelde voted with Democrats Jeannette Bradshaw and Julie Matuzak to certify the results. Throughout the meeting, Van Langevelde repeatedly noted the board has limited legal authority – it cannot investigate allegations of fraud or misconduct, or review any information other than election results certified by counties, he said.
“There’s nothing in the law that gives me the authority to request an audit as part of the certification process, correct?” Van Langevelde asked during one point of the meeting. “The law is pretty clear here. This board has such limited authority.”
The vote is the latest in a series of procedural steps needed to finalize election results and cast the state’s 16 electoral votes for Joe Biden.
Biden earned approximately 154,000 more votes than President Donald Trump in the state. However, Trump and supporters have argued, without evidence and relying on conspiracy theories, that Michigan’s election results were stolen or are otherwise fraudulent.
At times, more than 33,000 people watched the livestream of the meeting, conducted virtually in accordance with state COVID-19 guidance. Board members and staff sat at a distance from one another, with transparent partitions erected between their seats. Most wore masks, although some removed those masks while speaking.
Republicans nationally and in Michigan, including U.S. Senate candidate John James, also sought a delay of certification, arguing alleged irregularities in Detroit warrant further review before votes are finalized.
There is no evidence or proof of widespread fraud in Detroit or across the state. In addition to unofficial results showing Biden won the state, U.S. Sen. Gary Peters, D-Mich., earned roughly 94,000 more votes than James, who has not conceded his race.
Biden earned 306 electoral votes to Trump’s 232. Trump and his legal team are seeking to overturn or are otherwise disputing resultsin Michigan, Georgia, Pennsylvania and Wisconsin. Democratic and Republican officials in each of these states have said the results are accurate. There is no viable scenario where any of these states would flip in the president’s favor – he’d need all of them to secure the electoral votes required to remain president.
Even if board members believe there are inaccuracies in the results or they have issues with the election results, legal experts said the law does not allow them to withhold support for certifying those results – their role is to simply do the math on the overall state results. Recounts and audits may only occur after election results are certified, under Michigan law.
“You can’t vote no. There is no ‘no’ in these circumstances,” Chris Thomas, the former state elections director who assisted with operations in Detroit this fall, said during the public comment portion of the meeting. “Each of you play a necessary role. You’re at the pinnacle of Michigan’s democracy. You’re the end game.”
In addition to Thomas, clerks from across the state called on the board to certify the results. If they did not, they would defy the voters of Michigan, argued Ingham County Clerk Barn Byrum.
“Anything other than certification is an unlawful power grab,” Byrum said, calling reports Shinkle may vote against certification “shocking and disgusting.”
Michigan Republican Party Chairwoman Laura Cox and Charles Spies, an attorney for the James campaign, spoke in favor of the board delaying certification of the vote. They argued the board has the power to delay certification and they must not vote before a review of results in Wayne County.
While Shinkle appeared to agree with some of the sentiment, Van Langevelde debated legal authority with Spies.
“We only have the powers and duties given to us by law, right?” Van Langevelde asked Spies.
Spies said the board has the authority to adjourn and allow for the review of results, and nothing restricts the board’s authority.
“We can agree to disagree, but I think the law is on my side here. Our duty is very simple, and it’s a duty,” Van Langevelde said. “We have no authority to request an audit, to delay or block certification, to review inaccuracies that happened at the local level. Those results have been certified. Our duty is to look at those certified results, look at the math, and then certify. The statute couldn’t be more clear.”
Each of Michigan’s 83 counties certified local election results last week, following the standard double-checking of documentation that occurs during the routine canvass process that follows an election. This process, as is usual, revealed a handful of issues that were resolved. Biden’s margin increased slightly after the canvass – but of the more than 5.5 million ballots cast, only a tiny number were affected by this standard process.
The Michigan Bureau of Elections recommended the board certify the statewide results.
“The Bureau of Elections did not identify unusual patterns in unofficial reporting; the examples identified were typical human error similar to that which has occurred in past elections,” reads a memo, sent Friday to the board.
No audit, recount, review or any other action, initiated by the state or independent actors, is remotely likely to change the results of the presidential or Senate races. And under Michigan law, candidates and citizens cannot request an audit or recount until after election results are certified, says Michigan Secretary of State Jocelyn Benson.
“This is because it is only after statewide certification that election officials have legal access to the documentation needed to conduct such audits,” Benson said in a recent news release.
That did not stop Trump, James, and local and national Republicans from asking the board to delay certification until someone reviewed the results of Wayne County, and specifically Detroit. While James and others argue their efforts are about restoring confidence in the voting process, Democrats and many others say their refusal to accept the results is exacerbating the problem.
Allegations, but no evidence, of widespread problems in Detroit
Detroit, specifically the absentee ballot counting efforts at TCF Center, are at the heart of the allegations from Trump, his supporters and other Republicans. They argue Republicans were not allowed to appropriately monitor the count, ballots were improperly counted or processed and other irregularities.
Trump and his supporters have filed multiple lawsuits in state and federal courts, arguing misconduct and asking for judges to intervene in the election. Mary Shinkle, the wife of board member Norm Shinkle, worked as a poll watcher at TCF and filed one of the more than 100 affidavits Trump’s campaign included in a federal lawsuit.
The Trump campaign and its supporters have either lost or withdrawn each of their lawsuits. In cases where judges have ruled, they have determined the campaign lacked evidence. Wayne County Circuit Court Judge Timothy Kenny determined allegations made by supporters about conduct at TCF were “incorrect and not credible.”
However, these allegations briefly resulted in the Wayne County Board of Canvassers refusing to certify county results. Although the board initially deadlocked 2-2, it reconvened and eventually voted unanimously to certify the results. Republican members agreed to change their votes only if an audit of Wayne County results was conducted; both have since signed affidavits saying they want to rescind their votes.
There is no legal mechanism to rescind a vote, and the results have already been sent to the state.
There are not hundreds of thousands of votes to be had for any Republican candidate in Detroit. Wayne County as a whole has not gone for a Republican presidential candidate since Herbert Hoover in 1924. While Detroit is the heart of that Democratic stronghold, unofficial results show Trump actually did better in the city in 2020 than in 2016. He earned roughly 12,700 votes in the city this year, compared with about 7,700 in 2016.
The Trump campaign, James and others repeatedly point to precincts being “out-of-balance” as a reason to delay certification and review Detroit vote totals.
In this context, out-of-balance means the number of counted votes did not match the number of expected votes recorded in the poll book for a specific precinct.
This problem occurred in roughly 70% of absentee ballot precincts in Detroit this fall. But out-of-balance precincts occur every election in cities across the state. They are generally the result of human error and account for a very small number of votes. Benson has already pledged to conduct a “post-election performance audit” of Wayne County.
The number of ballots in question because of out-of-balance precincts in Detroit is relatively small: About 441 when looking at ballots cast both in-person on Election Day and those cast by people voting absentee, according to a Free Press review of data from the Wayne County Board of Canvassers.
The number may be a bit larger than that: The county board counts those precincts by how many ballots in each is out of balance, with most of those found to involve questions of one to four ballots, though a number of them – 36 out of 179 unbalanced precincts – were listed as having questions involving five or more ballots. However, there is no evidence it’s significantly larger and every indication is the city’s vote totals are unlikely to change greatly as the result of any audit or outside review.
Looking at all of Detroit in total, the books either added up or had an explanation for why they did not in nearly 72% of all precincts.
Approximately 250,000 Detroiters voted in the general election, with approximately 174,000 using absentee ballots. No absentee ballots from any other Wayne County city were counted at TCF Center.
That means in order for any review or audit of Detroit results to change the outcome of the presidential or Senate races, most absentee ballots or in-person votes would need to be deemed fraudulent.
Democrats point to these numbers as evidence that the efforts by Trump and his supporters are racist, an attempt to disenfranchise voters in a city that is almost 80% Black.
What happens next?
Now that the board has certified results, the state can proceed with formalizing the election of officials up and down the ballot.
Gov. Gretchen Whitmer will 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.
It’s also likely Trump or his supporters will either try to challenge the certification in law, or attempt to persuade state legislators to intervene. Neither avenue has a high degree of success.
On Friday, Republican leaders of Michigan’s Legislature met at the White House with Trump. Senate Majority Leader Mike Shirkey, R-Clarklake, and House Speaker Lee Chatfield, R-Levering, said they went to speak with Trump about COVID-19 assistance.
In a joint statement issued after the meeting, they said, “We have not yet been made aware of any information that would change the outcome of the election in Michigan and as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election.”
In a Fox News interview on Sunday, Chatfield reiterated that Trump did not ask him or other lawmakers to intervene or interfere in election proceedings.
However, Trump tweeted several comments after the meeting that undermined the lawmakers’ statements. In a series of tweets, he said “hopefully the Courts and/or Legislatures will have … the COURAGE to do what has to be done to maintain the integrity of our Elections.”
The Michigan Legislature has no role in the election certification process, one it established through law decades ago. Even if lawmakers decided to attempt to intervene, that would likely require a law change. There is essentially no chance Whitmer would sign any bill giving this power to the Legislature.
Once results are certified, the law allows candidates to request a recount or audit. Neither process tends to change the result of elections, unless those races were decided by a handful of votes.
No campaign has indicated it seek a recount in Michigan. Recounts are also an expensive proposition: a statewide recount would likely cost millions of dollars. If the recount changes the election outcome though, the candidates are not charged.
State law also bars recounting many precincts that are out-of-balance. This issue would assuredly come up if a campaign asked for a recount in Detroit or Wayne County.
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.
Contributing: Clara Hendrickson and Todd Spangler
Contact Dave Boucher at firstname.lastname@example.org or 313-938-4591. Follow him on Twitter @Dave_Boucher1.