Monday is the day the Michigan State Board of Canvassers is scheduled to meet to certify these findings. The Board’s certification of election results is what triggers voters who are elected, which is what is sent to the Electoral College.
What the board can and cannot do
“It’s a mandatory requirement,” said John Pirich, a former Michigan State Attorney and current law professor at Michigan State University, as he explained the laws governing the board.
“The Michigan Supreme Court has been very clear that ‘must’ means ‘must.’ It’s mandatory. It’s ministerial. They have no choice, “said Mark Brewer, the longest-serving chairman of the Michigan Democratic Party and a lawyer for Advocate Goodman Acker.
“It’s clear. It says after certification and it should not be used for recounts or certification issues,” Pirich said, referring to the law.
“I think with all the potential problems, if one of them is true, a review is appropriate,” Norman Shinkle said. CNN has reached out to Shinkle several times to comment. CNN has also not received a response from the other board members.
The board cannot attempt to certify some of the results for the state and not all, as suggested by the Republican chairman of the Wayne County Board of Canvassers at their certification meeting, which received a lot of pushback at the time.
The only reason the board would hypothetically be able to delay the certification would be if they did not have all the results or information they needed to certify. But given that all counties have certified their results, there is no reason for the board to postpone certification that was passed their Monday meeting.
“Historically, the board has always unanimously certified that day,” Brewer said.
What happens if there are 2-2 stalemates?
If the board gets locked in a 2-2 biased stalemate, like what originally happened with the Wayne County Board of Canvassers Tuesday, two parallel lawsuits could arise.
Steve Liedel, the top legal adviser to former government Jennifer Granholm, said this kind of stalemate has happened before, but mainly in connection with voting proposals.
The first way to enforce certification is through the courts. If the board does not certify on Nov. 23, the Michigan Court of Appeals will order the board to certify. Liedel said the court has previously initiated contempt proceedings for board members who do not certify and that board members who refuse to certify may be charged with a misdemeanor or willful misconduct. If the issue is not resolved by the Court of Appeal, it will go to the Michigan Supreme Court, but election attorneys in Michigan agreed on Friday that it is unlikely to go to that level.
Asked if Whitmer was willing to step in if board members refuse to certify, her spokeswoman Tiffany Brown told CNN: “We are not at that point, hoping individuals will do the right thing and respect the will of the electorate. “
If a board member does not show up, the board can still act as long as one member from each party is present. If there is more than one vacancy, the governor fills the vacancy.
Can the legislature get involved and nominate their own voters?
According to short election experts in Michigan, the short answer is no.
Even if the State Board of Canvassers refuses to certify results and the matter goes to court and Whitmer potentially steps in, Michigan election attorneys explained that the legislature cannot try to nominate their own voters.
“You can look through the entire Michigan election code, which was written by the legislature and signed by governors for both parties. There is no role for the legislature in this process,” Brewer said.
“Michigan has a pretty strong power-sharing clause. And appointing members of the Electoral College does not legislate, it does not pass a law. And there is nothing in the Michigan Constitution that allows the legislature to do that,” Liedel said.
Liedel added that the only thing the legislature could do in this regard was try to pass a bill that would change the law, but it would require the governor’s signature.
Both parties adopted their constituents at their respective fall conventions.
Can certification votes be revoked?
In Wayne County, after the board certified its findings, the two Republican board members submitted statements trying to remember their votes. When the statements were submitted after the deadline for certification at the county level, there was no way to remember their votes.
The same is true at the state level. When the board confirms the results, the meeting is adjourned. To revoke votes, the board had to convene another meeting, but Michigan election experts said Friday that it would not happen.