Michigan elections board could face deadlock on certification
State lacks mechanism to resolve 2-2 ties
LANSING, Mich. – Michigan’s elections board could deadlock Monday on certifying the state’s presidential election results for the first time in history.
By law and practice, certification by the Board of State Canvassers – two Democratic appointees and two Republican ones – is supposed to be a routine signoff. Certification acknowledges that Michigan’s unofficial results match the tabulated vote counts. It follows a two-week period of double-checking in Michigan’s 83 counties, where some inaccuracies in the unofficial numbers, as is normal, were found and corrected.
But these are not normal times. The climate is hyperpartisan, disinformation is rampant and President Donald Trump and his lawyers are working to overturn election results in Michigan and other states and upend Joe Biden’s victory in the Electoral College, where he rang up 306 electoral votes to Trump’s 232.
“This system was set up decades ago, during a time when American politics and Michigan politics were more bipartisan,” said David Kimball, a professor of political science at the University of Missouri in St. Louis. By having a bipartisan board carry out the pro forma function of election certification, “it would signal to everyone that both parties believe the results are fair,” he said.
“What could go wrong?”
The potential deadlock
The prospect of a deadlock has experts questioning whether a fourmember board, halved along partisan lines, is workable in a world where Republicans and Democrats disagree not just on policy but on facts.
Some ask whether Michigan’s system needs a built-in tiebreaker, as in other Midwest states such as Ohio, Wisconsin and Minnesota.
“A better model would attempt to displace partisanship altogether rather than build it into the system,” said Barry Burden, director of the Elections Research Center at the University of Wisconsin.
At the Michigan Board of State Canvassers, Republican member Norman Shinkle said he has many concerns, from election equipment to the absentee voting process to transparency, and he leans toward seeking a delay in certification. Shinkle’s wife, Mary, was a Republican poll challenger at the TCF Center in Detroit and signed an affidavit used by the Trump campaign in a lawsuit that has been withdrawn.
It would take Shinkle’s vote plus one other to delay certification. The other Republican member, Aaron Van Langevelde, has not said how he plans to vote. Van Langevelde works for state House Republicans, whose leader, Speaker Lee Chatfield flew to Washington on Friday with other GOP lawmakers to meet with Trump.
Chatfield and Republican state Senate Majority Leader Mike Shirkey said after the meeting with Trump they had not been “made aware of any information that would change the outcome of the election in Michigan,” and they intended to follow the normal process.
Saturday, Ronna McDaniel, chair of the Republican National Committee and a Michigan resident, and Laura Cox, chair of the Michigan Republican Party, wrote the board asking it to delay certification for 14 days, pending an audit, citing “procedural and accounting irregularities” such as discrepancies between the number of people recorded as casting ballots at Detroit precincts and the actual number of ballots counted.
Election officials said poll book imbalances are not uncommon and not evidence of fraud. They typically are the result of human error.
Secretary of State Jocelyn Benson said audits are planned, but under Michigan law, such audits can be conducted only after results are certified.
The meeting of the Board of State Canvassers, which votes independently of the Legislature and the governor, is set for 1 p.m. EST Monday.
A costly battle
The delays and costs of a possible court battle point to a weakness in Michigan’s system – the lack of a nonlitigious mechanism to break a 2-2 deadlock, said John Fortier, director of governmental studies for the Bipartisan Policy Center in Washington.
“Probably it is better to have a tiebreaker earlier in the system than go to court,” Fortier said.
In the Midwest, most officials who serve as tiebreakers are not necessarily nonpartisan or neutral.
In Ohio, the secretary of state, an elected party official, breaks a tie.
In Wisconsin, the six-member commission is equally divided between Republicans and Democrats, but it is the statutory role of the commission chair – which rotates between the two parties – to certify election results.
In Minnesota, a deadlock is not possible, because the State Canvassing Board has five members. The elected secretary of state serves as board chair and fills out the board by appointing two members of the state Supreme Court and two judges from a district court.
At one time, Michigan’s Board of State Canvassers could not have a tie vote. One political party or the other used to have a majority on the board. Contentious recounts in the 1950s led to a constitutional amendment intended to prevent partisanship from interfering with the certification, according to attorney and former Michigan Democratic Party chair Mark Brewer.
Fortier said the idea of policing elections by having the two major political parties watch each other has been central to the U.S. system. It goes beyond the certification to include poll watchers and the fact that in some jurisdictions, two keys – one held by a Republican and one by a Democrat – are required to open doors to rooms where ballots are counted or stored.
“Not having some neutral body that we trust, we actually put the parties there to kind of watch each other,” he said. “I do think it’s very baked into the system, and it would be very hard to change.”