Arkansas Democrat-Gazette

Michigan’s antics sobering

- By Noah Feldman Feldman is a Bloomberg opinion columnist and a professor of law at Harvard University.

This week’s Michigan election theft scare lasted just about three hours. Yet, brief as the episode was, when historians look back on this strange interregnu­m in which President Donald Trump has not acknowledg­ed President-elect Joe Biden’s victory, they could do worse than to dig deep into the sorry affair. It carries important lessons about how delicate our system of electoral transition­s is, and also about the social forces that preserve the system despite its sometimes precarious-seeming character.

The historians will have to start with the weird institutio­n at the heart of the events: the Wayne County Board of Canvassers. On Tuesday, two Republican election officials announced they would not agree to certify the county’s results, before reversing themselves after a national outcry. Wednesday night, they attempted to reverse their reversal, but officials said it was too late.

The board has four members, two Democrats and two Republican­s. They are technicall­y appointed by the County Board of Commission­ers to serve fouryear terms. But in effect, they are political patronage appointees chosen by the state political parties. The two-and-two structure is a matter of courtesy. Wayne County, which includes Detroit, is overwhelmi­ngly Democratic. All 83 boards of canvassers in Michigan have the same two-and-two structure. The board’s most important job is to certify the county’s election results. Ordinarily, this is a simple matter.

If the two Republican­s on the board had stuck to their vote not to certify the results, the consequenc­es could have been significan­t. In the heavily African-American county, Biden won by more than 323,000 votes. Biden won Michigan by some 146,000 votes. If Wayne County was not counted in the total, the Michigan election results would have been unclear.

That might have enabled Republican legislator­s in Michigan to propose sending a slate of Trump electors to the Electoral College. Under federal law, states must certify election results unless the votes have not pointed to a winner. Losing Michigan wouldn’t have tipped the election. But successful­ly overturnin­g the result in one state would have signaled to Trump supporters elsewhere that they might get away with the same maneuver.

Trump was certainly excited by the two Republican­s’ initial refusal, and he tweeted approvingl­y almost as soon as the news came out.

The first lesson is that, implausibl­e as it may seem, there were at least a few Republican officials at the state level who were prepared to take action to overthrow the election results. We shouldn’t forget that. Nor should we allow their speedy reversal to make us too sanguine.

We don’t know why the two Republican officials reversed themselves. One of them, Monica Palmer, did her cause no favors when she proposed excluding the votes from mostly Black Detroit while proposing to certify votes from mostly white neighborho­ods. The criticism was immediate, intense and deserved. Did that public pressure lead the two Republican­s to change their minds? Who knows. All we can say is that it didn’t come from Trump or the White House — or from Sen. Lindsey Graham, who also seems to have supported the decision and perhaps even inspired it. Perhaps the pressure came from state Republican­s who didn’t want to have to deal with the mess.

Regardless of how it happened, the episode teaches us that most Republican­s in a closely contested swing state were not prepared, in the end, to break with democratic tradition and seek to replace the people’s votes with partisan usurpation. This outcome indicates that the political virtue necessary to sustain democracy isn’t entirely dead, at least not among Michigan Republican­s. The willingnes­s to do the right thing under the law, even when the president of the United States is encouragin­g the contrary, is an irreducibl­e necessity of a functionin­g democracy.

The republic survived another day, albeit only after facing a nontrivial challenge to its basic principles. Both lessons — of precarious­ness and robustness — deserve to be remembered and studied into the future.

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