LANSING — Leaders in Michigan’s Republican-led Legislature have not yet called Joe Biden the president elect, but they’re making clear that they will not change the electoral process to benefit President Donald Trump even as they probe alleged election “irregularities,”
“Michigan law does not include a provision for the Legislature to directly select electors or to award electors to anyone other than the person who received the most votes,” said Amber McCann, a spokesperson for Senate Majority Leader Mike Shirkey, R-Clarklake.
The law is clear on that front: Michigan must award its 16 representatives to the Electoral College to the winner of the popular vote, and unofficial results show Joe Biden won the state by nearly 150,000 votes, a margin roughly 14 times larger than Trump’s win here in 2016.
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But the U.S. Constitution also appears to give Legislatures the exclusive authority to decide how to award electors, and GOP pundits like Mark Levin of Fox News have urged battleground state lawmakers to bypass the popular vote and decide the election for Trump, who has falsely claimed he won Michigan and sued to try and block certification of the results.
“REMINDER TO THE REPUBLICAN STATE LEGISLATURES, YOU HAVE THE FINAL SAY OVER CHOOSING ELECTORS,” Levin wrote in a post that Twitter partially blocked because of disputed and potentially misleading content. “SO, GET READY TO DO YOUR CONSTITUTIONAL DUTY.”
White House Press Secretary Kayleigh McEnany promoted Levin’s theory on Twitter, calling it “INSANE” that the social media site would block it. Local activists and the Michigan Conservative Coalition have encouraged lawmakers to follow Levin’s advice.
And on Wednesday, the president himself reportedly pressed his top advisers on whether Republican Legislatures could pick pro-Trump electors in a handful of key states to deliver him a second term.
Both Shirkey and House Speaker Lee Chatfield, R-Levering, have already backed away from that possibility.
“Every single legal vote needs to be counted, regardless of who cast it or who they voted for,” Chatfield, R-Levering said last week in a statement announcing a legislative inquiry into the election.“And then the candidate who wins the most of those votes will win Michigan’s electoral votes, just like it always has been. Nothing about that process will change in 2020.”
That means Trump’s already limited options to fighting Michigan’s election results are now even more remote. His campaign and supporters have filed five lawsuits to delay certification of the Michigan election, which he lost to Biden by 146,000 votes. He’s already lost one suit, and experts say he’s unlikely to prevail in others.
The State Board of Canvassers is expected to consider certifying the election Nov. 23. If it does, Trump would have 48 hours to request a recount.
Democrats and other critics have accused the GOP-led Legislature of legitimizing Trump conspiracy theories by launching an inquiry into the Nov. 3 election and using unprecedented subpoena power to request state election records. And they’ve urged Republicans to be more explicit about awarding the state’s electors to Biden.
“Michigan Republican legislative leaders must fervently declare that the Legislature has no role in the Electoral College process and any interference is unlawful and unconstitutional,” House Minority Leader Christine Greig, D-Farmington Hills, said in a Thursday statement.
“The will of the people must be respected.”
Bridge Michigan has repeatedly and unsuccessfully requested interviews with both Chatfield and Shirkey this week.
Shirkey defended the legislative probe in a Tuesday morning radio interview with WKHM in Jackson, arguing additional oversight could build faith in the democratic process.
“Though there are some irregularities and some anecdotal stories that I believe deserve some analysis, I very seriously doubt it’s going to change the outcome in Michigan,” he said.
Shirkey said he has “no clue” what will happen in other states like Pennsylvania and Georgia, where Trump is also contesting results. But he added: “I suspect we’re going to end up with a President Biden. And we should roll up our sleeves and figure out how to get on with life from here.”
In a Thursday email sent Senate Republican supporters, Shirkey said the “election is far from behind us” and wrote that claims of possible voter fraud keep him “up at night.” But he again stressed that the legislative probe is not likely to change the outcome in Michigan.
“At the very least, we must look at statutory changes to protect the integrity of this new reality of large numbers of mail-in votes,” he said. “Our democracy is at stake.”
The U.S. Constitution established an Electoral College, 538 electors who meet every four years for the sole purpose of electing the president and vice president. Each state gets a certain number of electors, based on population.
Most states require those electors to vote for the candidate who wins the state’s popular vote.
In Michigan, each major political party nominates its own electors, and then one of those slates is appointed to the Electoral College based on the popular vote, as certified by the Secretary of State. Once the Board of State Canvassers confirms results, the governor “shall” send the names of all Michigan electors to the U.S. Secretary of State.
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This year, the process relies on results being finalized by Dec. 8, a “safe harbor” date established by Congress to avoid disputes at the Electoral College, whose members will officially vote in the Michigan Legislature and other state Capitols on Dec. 14.
As Bridge reported last month, Democratic attorneys were already preparing for what they considered a doomsday scenario: an Electoral College coup by the GOP-led Legislature. But even then, they called it a long shot.
“I have a very hard time believing that enough elected legislators are going to thwart the will of the people of this state to send a slate of electors that’s inconsistent with the way people voted,” said Sam Bagenstos, a University of MIchigan law professor and former Democratic Party nominee for the state Supreme Court.
To date, there has not been any clear push in the Michigan Legislature, even among Republicans who have echoed Trump’s concerns about the integrity of the election.
GOP lawmakers including Sen. Pete Lucido of Shelby Township and Rep. Michelle Hoitenga of Manton have told constituents they don’t have the authority to pick their own electors.
“State law is very clear about the process for presidential electors, and the Legislature does not have the authority to change it unilaterally,” Hoitenga wrote on Facebook last week. “Michigan’s Constitution requires new laws to be passed by the Legislature and signed by the governor.”
State Sent. Tom Barrett of Charlotte and Lana Theis of Brighton on Thursday urged Michigan Secretary of State Jocelyn Benson to conduct an official audit of the Nov. 3 election before certifying the statewide results.
Ongoing county canvasses, which will be followed by a statewide canvass, effectively function as audits, and Benson’s office was already planning a post-election risk-limiting audit.
In their request, Barrett and Theis cited a “purported software glitch” with Dominion Voting Systems tabulating machines in Antrim County, where the clerk has acknowledged initially inaccurate vote counts were the result of human error, not machine.
Some GOP lawmakers have been more openly skeptical about unsubstantiated claims from Trump and his supporters.
“We will do everything we can to investigate and prosecute voter fraud in this state, however, most of the stories going around are simply not accurate,” state Rep. Scott VanSingel, R-Grant, wrote on Facebook.
State Sen. Ed McBroom, who chairs the Senate Oversight Committee that is probing the Michigan election results, has urged residents not to spread rumors without clear facts.
“One candidate seems to be willing to pour gas on every potential fear and doubt about the integrity of the system while the other seems uninterested in some very troubling reports and witness testimony,” McBroom wrote on Facebook last week. “Neither of these responses is right and both cause harm although any inciting to unrest or violence is absolutely detestable.”