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Why It Wasn't Normal When Michigan Republicans Refused to Certify Votes


For a few hours on Tuesday, it looked as though two Republican officials in Wayne County, Mich., might reject the will of hundreds of thousands of voters.

President Trump’s campaign cheered them on. But hundreds of Michiganders logged on to a Zoom call to express their fury. And around 9 p.m., the Republicans reversed themselves, certifying the count.

Voters in Michigan and beyond were left wondering: What just happened? Could the results of a free election really be blocked that easily, in such a routine part of the electoral process?

In this case, the answer was no, but perhaps only because so many people said so.

The election canvassing board in Wayne County — a largely Democratic area that includes Detroit — met to certify the results of the Nov. 3 election and deadlocked along party lines, with the board’s two Democrats voting to certify and its two Republicans voting not to.

The Republican members, William Hartmann and Monica Palmer, said they were concerned about small discrepancies between the number of votes cast in some precincts and the number of people precinct officials recorded as having voted.

These sorts of inconsistencies can happen if, for instance, a voter checks in but then gets frustrated by a long line and leaves. They were nowhere near significant enough in Wayne County, or anywhere else in Michigan, to change President-elect Joseph R. Biden Jr.’s victory — Mayor Mike Duggan of Detroit said they involved just 357 votes out of about 250,000 cast in the city — and canvassing boards routinely certify election results under similar circumstances.

After intense backlash, both from election watchdogs and from voters whom Representatives Debbie Dingell and Rashida Tlaib organized to call in to the canvassing board’s meeting, Mr. Hartmann and Ms. Palmer voted to certify the results after all. While they demanded that Jocelyn Benson, the Michigan secretary of state, conduct an audit of the Wayne County results, that will not delay the certification process.

By Wednesday morning, every county in Michigan had certified its results. The Board of State Canvassers will meet on Nov. 23 to certify the statewide totals.

In a word, no.

Election certification is supposed to be routine: Canvassers at the county or municipal level (depending on the state) review precinct results, make sure every ballot is accounted for and every vote was counted, double-check the totals and send the certified numbers to state officials. It’s the process by which the results reported on election night are confirmed.

This is basically an accounting task. If the canvassers find possible errors, it is their job to look into and resolve them, but refusing to certify results based on minor discrepancies is not normal. Michigan’s canvassing boards always have four members split between the two parties, and it is extremely rare for members to decline to certify an election that their party lost.

“It is common for some precincts in Michigan and across the country to be out of balance by a small number of votes, especially when turnout is high,” Ms. Benson said in a statement Tuesday evening. “Importantly, this is not an indication that any votes were improperly cast or counted.”

It is also highly abnormal to suggest, as Ms. Palmer did, that canvassers certify the results in one place but not another when there is no meaningful difference between the two in terms of the number or severity of discrepancies.

Before the deadlock was resolved, Ms. Palmer had proposed certifying the results in “the communities other than the city of Detroit.” As Democrats and election law experts noted, nearly 80 percent of Detroit residents are Black. By contrast, in Livonia — a city west of Detroit that had the second-highest number of discrepancies in the county, but whose results Ms. Palmer was willing to certify — less than 5 percent of the population is Black.

“It’s hard to ignore the potentially racially motivated actions of at least one of the canvassers,” Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said in an interview shortly before the board’s reversal, adding that her group was exploring “all legal avenues” if Republicans continued to disrupt the certification process.

Neither Republican board member responded to a request for comment.

The Board of State Canvassers would have been responsible for certifying Wayne County’s results if the Board of County Canvassers hadn’t. Section 168.822 of Michigan’s election laws says that if a county board fails to certify results, the state board “shall meet immediately and make the necessary determinations and certify the results” within 10 days.

What is less clear is what would have happened if the state board’s two Democratic members and two Republican members also deadlocked along party lines.

Mark Brewer, an election lawyer and former chairman of the Michigan Democratic Party, said Tuesday evening that if it went to the state board and the state board refused, “the next step would be getting a court order directing them to certify.”

The law that the state board “shall” certify the results if the county board doesn’t is unambiguous, Mr. Brewer said, “the kind of language that, in the past, Michigan courts have always enforced.”

But this election has shown that what happened in the past is no guarantee. Before the standoff was resolved Tuesday night, Jenna Ellis, a legal adviser to the Trump campaign, made it clear that the goal was to get the Republican-led Michigan Legislature to appoint a pro-Trump Electoral College slate — in opposition to the clear preference of Michigan voters, who chose Mr. Biden by a margin of nearly 150,000 votes. (A senior adviser to Mr. Trump, Justin Clark, said the campaign had played no role at the canvassing board.)

In theory, yes: Under federal law, election experts say, a state legislature could potentially step in and appoint electors in a disputed presidential election. But there would be at least two complications.

First, the election is not legitimately disputed. Mr. Biden won multiple battleground states by clear margins. The Trump campaign has filed a slew of legal challenges in Michigan and other states, but the courts have repeatedly rejected its arguments. Election officials across the country have said there was no evidence of widespread fraud anywhere.

Second, even if Republican state legislators appointed a pro-Trump slate, a Democratic governor could step in and appoint a pro-Biden slate.

“Michigan state law does not envision the state legislature stepping in to directly appoint electors,” said Jessica Levinson, a professor at Loyola Law School who specializes in election law. “The Democratic governor of Michigan would also surely object.”

The Republican leader of the Michigan Senate has said that the Legislature will not name its own electors. But if it did, and the governor named a competing electoral slate, it would be up to Congress to decide which one to accept. Several election lawyers said last week that federal law would favor the slate appointed by the governor, including if Congress deadlocked. Congress could also, in theory, toss out Michigan’s electoral votes altogether.

If Congress did that, or if it chose the Republican slate against the will of a state’s voters, the country would be in constitutional crisis territory. But it still wouldn’t change the result of the election, because there is no single swing state that could erase Mr. Biden’s victory. Multiple states would have to flip for that to happen.

In the most chaotic possible scenario, “Mom and Dad, meaning Congress, come in and say this is who gets their dessert and this is who goes to bed without dinner,” Professor Levinson said. “The punchline, of course, is that in any event, Joe Biden still becomes the president on Jan. 20.”

Regardless of the outcome, the fact that the Trump campaign and other Republicans have managed to inject so much chaos into what should be formalities shows how much disruption is possible in the systems that undergird the democratic process.

What is happening is, in many respects, uncharted territory. Michigan election law states clearly what happens if a county canvassing board fails to certify the results of an election: The state canvassing board takes over. But it doesn’t say what happens if the state canvassing board deadlocks, too.

“That’s where the wheels come off,” Professor Levinson said. “It’s not terrifically surprising to me that they don’t say, ‘And if everything collapses,’ because they’re operating under the assumption that people will work in good faith.”

In other words: The system wasn’t designed for this.

A lesson of the Trump era has been that much of American democracy is built not on laws but on norms, which persist by common consent. The episode in Michigan is an example of what can happen when the consent stops being common.

Kathleen Gray contributed reporting.

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