Jurisprudence

Trump’s Michigan Gambit Appears Doomed, but That Won’t Stop His Extremist State Allies

A car with signs on the window that say "DO YOUR JOB," "OUR VOTES COUNT," and "THE PEOPLE HAVE SPOKEN" drives by a group of protesters, one of whom is holding an American flag
Outside the Michigan State Capitol in Lansing on Monday. Jeff Kowalsky/Getty Images

Update, Nov. 23, 2020, at 4:46 p.m.: This post has been updated to reflect the results of the certification vote.

On Monday, the Michigan state board of canvassers met in what was supposed to be a standard proceeding to certify the state’s 2020 vote. Efforts by President Donald Trump and the Republican Party to block certification and have hundreds of thousands of ballots—mostly from Black voters—thrown out, however, turned what should have been a routine ministerial function into a raging debate. After hours of testimony on Monday, the board of canvassers voted 3–0 to certify the vote with one abstention.

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The Michigan GOP and Trump campaign on Monday had continued calling for an unprecedented delay in the certification of election results over false claims of voter fraud.

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The delay was viewed by many to be part of Trump’s long shot and desperate attempt to overturn the election results. Those fears were heightened after the president summoned state Republicans to the White House on Friday. Over the weekend, those Republicans, Michigan House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey, indicated that they would have been open to overturning the election in the case of a certification delay.

The delay is leading the state into rarely charted legal territory. On Sunday, Chatfield raised the prospect of a “constitutional crisis” during a Fox News interview. But for all the bluster and noise, the law was never on Republicans’ side. This episode does show, however, how far Republican officials in the state are willing to go to throw out the ballots of Black voters and overturn American democracy.

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Trump’s supporters’ fraud claims center on “out of balance” precincts in Wayne County, a Democratic stronghold with one of the largest populations of Black voters in the country that’s home to Detroit. Michigan precincts are considered out of balance when there’s a mismatch between the number of voters who signed into poll books and ballots cast.

The issue is common in large cities and often attributable to input error. In most cases, the numbers in each precinct are off by as few as five ballots, and experts say no more than about 450 Detroit votes could be affected. Biden won the majority-Black city by a 233,000–13,000 margin, and the state by about 154,000 votes. None of these common errors, which have never caused certification delays in past years, would have any impact on the actual results. Meanwhile, the GOP isn’t calling for investigations into out-of-balance books in largely white suburban cities.

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Still, the Republican National Committee and the state GOP wanted the state board of canvassers—which is split 2–2 along party lines and needed at least a 3-vote majority for an approval—to delay certification for 14 days so election officials can conduct an audit of Wayne County’s books. Legal experts say that while the canvassers could have delayed the vote, they can’t order an audit, and the law doesn’t permit an investigation until after the results are certified.

In short, state law only gives canvassers the authority to vote for or against the certification of results already certified at the county level.

“The Michigan Board of State Canvassers lacks discretion to take additional time to certify state results if the Secretary of State presents complete returns from the county canvasses,” Steven Liedel, a state election attorney who worked on Gov. Gretchen Whitmer’s transition team, wrote on Twitter. “[Its] duties are ministerial and mandatory under the Michigan election law.”

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On Monday, meanwhile, the director of the Michigan Bureau of Elections, Jonathan Brater, recommended during the meeting that the board certify, noting that these errors are normal, there was actually a reduction of errors in Detroit from past elections, and that under law, audits need to occur only after certification. If canvassers had deadlocked, though, Whitmer could have used executive authority to remove the GOP members or ask the courts to step in and order the canvassers to certify the results. Though the state’s Supreme Court has a 4–3 Republican majority, justices haven’t always voted along party lines on high-profile election issues.

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The most likely swing vote would have been Justice Beth Clement, who in 2018 was one of two GOP justices on a 5–2 Republican-majority Michigan Supreme Court to vote against the party’s attempt to kill a popular citizen-initiated anti-gerrymandering proposal. Clement faced intense backlash for her “betrayal”—Republicans quit fundraising for her, the state party stopped campaigning for her, and she says her GOP colleagues began bullying her. Democrats fundraised for Clement and publicly praised her willingness to break ranks. She defeated a Democratic candidate in a blue wave election later that year.

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When canvassers deadlocked in 2006 amid allegations of fraud on an anti–affirmative action petition, meanwhile, the Michigan Court of Appeals ordered the canvassers to approve the form. The three judges unanimously ruled that canvassers had no legal authority to conduct an investigation into alleged fraud.

That hasn’t stopped Norm Shinkle, one of two GOP canvassers, from calling for an audit and threatening to vote against certification. Ultimately, he abstained from the certification vote. The former Republican state senator chairs Michigan’s 8th Congressional District Republican committee and campaigned for Trump ahead of the election. Meanwhile, his wife issued an affidavit in one of the Trump campaign’s several failed Michigan lawsuits that made false claims of voter fraud in Detroit. Shinkle told reporters he’s heard “jaw-dropping” stories of fraud and urged ballot challengers to produce hard evidence, which they have failed to do.

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“I do think with all of the potential problems, if any of them are true, an audit is appropriate,” Shinkle told the Washington Post. “I take one step at a time, and if we can get more information, why not?”

The other Republican canvasser, Aaron Van Langevelde, works for Chatfield. Van Langevelde hasn’t responded to reporters’ requests for comment. On Monday, he asked to listen to public testimony before voting whether or not to certify, but repeatedly indicated that he viewed the board’s discretion to reject returns as narrow. Ultimately, he voted to certify.

Had the board declined to certify, and the courts failed to order certification or canvassers continued to refuse to certify in the face of a court order, then Secretary of State Jocelyn Benson could have fired obstructive canvassers and replaced them with Republicans more likely to certify the vote. If it had gotten to that point, the GOP-controlled Legislature seemed open to determining how the state’s electors would proceed.

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Though Chatfield and Shirkey have indicated that they will respect the will of the state’s voters, their statements haven’t been definitive, and they’ve faced intense pressure from Trump and some state Republicans to use a legally questionable path to steal the state.

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It would be a brazen and shocking move, but Michigan’s GOP-controlled Legislature has a history of unconstitutional attempts at power theft. During the 2018 lame-duck session, many of the same legislators still in office approved a series of laws designed to strip authority from the incoming Democratic governor, secretary of state, and attorney general. Those moves were ultimately overturned by the state Supreme Court or vetoed by former Gov. Rick Snyder.

Shirkey has been among the key players in the lame-duck session and other Michigan GOP power grabs over the last 10 years. He supported the controversial 2014 emergency manager laws that stripped power from Democratic mayors and led to the Flint water crisis, and the 2020 effort to undo Gretchen Whitmer’s emergency order powers during the pandemic. During his decade in the Legislature, he has cemented his status as an archnemesis to Democrats, often legislating to the right of former Gov. Rick Snyder.

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Perhaps his crowning achievement was an outrageous and successful law that gutted popular citizen-initiated legislation that would’ve mandated paid sick time and raised the state’s minimum wage to $12 per hour by 2022.

Chatfield, 32, is a rising star in the state party, and a garden-variety conservative state representative who made his name as a vocal supporter of gun rights and opponent of LGBTQ rights. The House speaker—who grew up the son of a firebrand conservative preacher and is known for quoting the Bible on the Legislature floor—unseated his Republican predecessor in his rural Michigan seat in 2014 after the latter supported an expansion of the Elliott-Larsen Civil Rights Act. The proposal would’ve provided new employment and housing protections for LGBTQ residents.

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Though Chatfield presents himself as a civil, old-school conservative who’s willing to reach across the aisle—a fiction that some Democrats have inexplicably bought into—the few bipartisan deals reached during his tenure have resulted from Democrats caving to GOP demands. He continues to oppose proposals to expand civil rights for LGBTQ residents and, like Shirkey, supported or co-authored legislation during the Republicans’ 2018 power grabs.

Though Republicans are now even more unlikely to succeed in overturning the election, Republican U.S. Rep. Paul Mitchell, who has called on Trump to concede and respect the state’s results, noted that its certification play in Michigan is shrewd. Either it could have delayed the certification results or, now that the results have been approved without an audit, the campaign can claim there was a cover-up, even if there’s no evidence of one.

“It’s a win-win” for the Trump campaign, Mitchell told CNN.

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