Michigan Certification of Biden Win Is a Step Toward the End — But It’s Not the End

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After much drama, Michigan’s state electoral board certified that, with a 154,000-vote lead after ballots were canvassed at the county level, presumptive President-elect Joe Biden is the winner of the state’s 16 electoral votes. This is a significant step in the process that ends with the casting of those votes in the Electoral College and the communication of that official result to Congress. It is not, however, the end of the matter, as some outlets are reporting.

There has been a push by President Trump and some of his ardent supporters to delay the certification until the ballots could be audited. The Trump campaign and its legal team have made extravagant claims about widespread vote fraud in the state (claims that have been rejected in court proceedings). Yet, the narrow objections to certification at the county canvassing level have involved far more modest matters, such as minor discrepancies between the number of votes and the number of people recorded as voting in particular precincts. In light of Biden’s large lead over Trump, addressing these issues, even if they involved some invalid ballots, would not come close to making a difference in the outcome.

Some Republicans stressed the need to audit the Michigan vote. These include the two canvassers from Wayne County (who initially objected to county certification, reversed themselves and formally voted to certify, then groused that they wanted to rescind their votes), and Norman Shinkle of the state canvassing board. Michigan’s secretary of state, Jocelyn Benson, counters that “under state law (MCL 168.31a) audits can only be conducted after the State Canvassers certify the election.”

I freely concede that Secretary Benson is an expert in Michigan law and I am not, so perhaps she is aware of caselaw that stands for the proposition she asserts. But I can read a statute, and Section 168.31a does not say what she says it says. It says the secretary may audit election precincts “after each election” — which is not necessarily the same as “after the election has been certified by state canvassers.” The statute, furthermore, gives the secretary broad discretion to “prescribe the procedure for election audits,” so it would be hard for me to believe she does not have the authority to conduct an audit — I can certainly imagine a scenario in which Trump had won and Benson decided she had the power under this same statute to audit precincts before certification. In any event, while there is no question that the statute would permit an audit after certification, it does not say that it is impermissible to conduct one before certification.

I do not want to be misunderstood here. I think it would have been reasonable for Benson to take the position that she did not see the need for a pre-certification audit in light of the extent of Biden’s lead and the nature of the objections posited by the canvassers. I just doubt that the statute she relies on actually prevents a canvass.

That said, her interpretation of the statute may have made a vote for certification easier for Aaron Van Langevelde, one of the two Republicans on the state canvassing board. His conclusion that certification was a ministerial task that he could not properly refuse ensured a three-vote majority, since the two Democrats were certain “yes” votes. The only holdout was the aforementioned Norm Shinkle, but even he did not vote “no.” After several days of public handwringing, he abstained.

The certification vote does not “cement” Biden’s victory in the state, as some reports indicate. It does, however, make it harder to undo. Nothing is truly set in stone until December 8, the safe-harbor date under federal law — and some, including the president’s lawyers (see here, p.15, n.13), have argued that even that date may be extendable to December 14, the date of the actual Electoral College vote. There will be stepped-up calls for an audit of voting precincts now that the vote has been certified. And there could be more lawsuits … even though the Trump campaign dropped its federal lawsuit in Michigan last Thursday. But there is no doubt that the certification brings a sense of finality to the Michigan vote.