Nov. 23 update: Watch Michigan Board of Canvassers certify the 2020 election
LANSING — A key Republican on the Board of State Canvassers is threatening to refuse certification of Michigan election results until after an audit, but legal experts say he has no authority to demand a process that is not even allowed under Michigan law.
Norm Shinkle, one of two Republicans on the four-member board, has echoed President Donald Trump’s unsubstantiated claims of irregularities or fraud in the Michigan election, which Democrat Joe Biden won by more than 154,000 votes in unofficial results.
“I do think with all of the potential problems, if any of them are true, an audit is appropriate,” Shinkle told The Washington Post ahead of a Monday meeting where he’ll be asked to certify those unofficial results already certified by all 83 Michigan counties.
“I take one step at a time, and if we can get more information, why not?”
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The board is composed evenly of Republicans and Democrats. In case of a 2-2 tie, experts say state courts would likely order members to certify the Michigan election and could even charge them with contempt.
In certification is delayed, Democrats fear Michigan’s Republican-led Legislature could try to change the rules and appoint pro-Trump electors of its own choosing before the Electoral College meets in December.
That’s an approach the president appears to be advocating, by inviting top state Republicans to the White House on Friday and phoning GOP canvassers in Wayne County before they changed their mind and tried to rescind certification of that county’s results this week.
"There's no question about who won this election, so for them to not certify when they have certified in similar situations in past elections… suggests that there is something else afoot," said former Michigan Gov. Jennifer Granholm, a Democrat who appointed Shinkle to fill a GOP opening on the board in 2008.
"Norm Shinkle and the other Republican members on the Board of Canvassers should be very careful to not put themselves in jeopardy, legally, by doing something that is a complete aberration,” she said.
Shinkle could not be reached for comment Friday, but the former state senator from Ingham County told Bridge Michigan this month that he “make[s] no promises” on his vote.”
His wife was a poll challenger at TCF Center in Detroit where absentee ballots were counted and signed an affidavit alleging improprieties for a lawsuit that Trump has since withdrawn.
“If you just go ahead and certify everything that comes in front of you, what prevents people from cheating?” Shinkle said. There's got to be a penalty if there is cheating going on.”
But like other canvassers, Shinkle’s purview is limited because Michigan law gives canvassers limited authority to sign off on statewide results already certified at the county level, not to demand investigations or audits, according to veteran elections attorney John Pirich.
"They have absolutely no power to investigate allegations, theories or any other kind of half-brained arguments that are being thrown around,” said Pirich, who represented Trump during a 2016 Michigan recount requested by Green Party candidate Jill Stein.
“Excuse my language."
Michigan law says the board must “canvass and certify,” said Mark Brewer, an attorney and former chair of the Michigan Democratic Party.
“It doesn't say investigate. The only two things this board is authorized to do is canvass and certify. If the Legislature at some point had wanted to add on other power, it could have done so, but it did not.”
Even if Shinkle and fellow Republican canvasser Aaron Van Langevelde could request an audit, Michigan law does not actually allow that to happen until after certification, according to Pirich and Secretary of State Jocelyn Benson, a Democrat.
In fact, statute prohibits Benson from authorizing access to ballots, ballot boxes, voting machines and equipment until 30 days after results are certified, and not even then in jurisdictions where there is an active recount.
Those restrictions haven’t stopped Republicans from demanding an audit as Trump seeks to overturn election results in a state he won by a much narrower margin than Biden in 2016.
Farmington Hills businessman John James, a Republican who unofficially lost to incumbent Democratic U.S. Sen. Gary Peters by 92,338 votes but has not conceded, on Friday asked the State Board of Canvassers to delay certification for two weeks to perform an audit.
That would push certification to Dec. 7, just one day before a so-called safe harbor deadline for Michigan to settle election disputes to ensure its votes are counted in the Electoral College.
There’s no guarantee a full audit could even be completed in two weeks. In 2016, a state audit of Detroit’s November election was finished in February 2017.
State Sens. Tom Barrett of Charlotte and Lana Theis of Brighton last week called on Benson to conduct a statewide audit before election results are certified, citing "serious allegations" which "cannot and should not be ignored."
Barrett was sighted Friday in Washington, D.C. with Michigan Senate Majority Leader Mike Shirkey, R-Clarklake, who was set to join House Speaker Lee Chatifeld, R-Levering, for an afternoon White House meeting with the president.
Shirkey and Chatfield have both said the plan to follow Michigan law, which requires the state to award its 16 presidential electors to the winner of the statewide popular vote. GOP activists, and some members of Trump’s legal team, have urged the Legislature to pick pro-Trump electors.
Last week’s audit request earned Barrett and Theis a personal thank you note from Trump, who told them “the country is proud of you” for questioning a “rigged election,” but experts say the request is only symbolic because state law doesn’t allow audits until after certification.
“There's not a procedure to do an audit until recounts are completed, and that process only occurs after a certification is complete,” said Pirich. “The Legislature clearly understood when they enacted this provision, it was to get out of that kind of morass.”
Monica Palmer, a Republican on the Wayne County Board of Canvassers who certified election results there but now wishes she could “rescind” her vote, on Friday also joined calls for an immediate audit.
An audit “after the fact” will not help explain “out of balance” precincts in Wayne County, she said, referencing generally small mismatches between poll books and ballots numbers.
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“It is up to the State Board of Canvassers at this point,” she said.
Michigan routinely conducts audits after election results are canvassed and any recount requests are completed. By approving a 2018 amendment to the state constitution, voters made optional election audits mandatory.
State law requires the Secretary of State to develop an election audit program, which typically includes a hand recount and other integrity checks in randomly selected precincts across Michigan.
In 2018, for instance, Republican Secretary of State Ruth Johnson's office audited 300 of Michigan's 4,800 precincts. The review includes inspection of poll books, voting machines and software, ballot containers and a recount to ensure the number of ballots matches the numbers tabulated.
In recent years, Michigan has also begun utilizing "risk-limiting" audits to confirm the reported outcome of elections by reviewing a certain number of statewide ballots, depending on how close the race is.
Benson's office conducted a risk-limiting audit after the March presidential primary and is "on track" to do so again for the general election, which would be the first in a presidential contest, she said Thursday.
Michigan law doesn't give election officials legal access to documents needed for audits until after statewide certification is complete, Benson noted, citing a 1973 law that doesn’t authorize the release of ballots, ballot boxes, voting machines and equipment until 30 days after statewide certification.
"Audits are neither designed to address nor performed in response to false or mythical allegations of 'irregularities' that have no basis in fact," Benson said in a statement.
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"Where evidence exists of actual fraud or wrongdoing, it should be submitted in writing to the Bureau of Elections, which refers all credible allegations to the Attorney General’s office for further investigation."
In testimony Thursday, Republican Kent County Clerk Lisa Posthumus Lyons called the Michigan audit process “very, very robust.”
“The order in which this all occurs I think is important as well,” she said, noting audits are typically conducted only after county and statewide canvasses and any recounts requested by candidates.
“If you audit before a recount has taken place, you're opening up very secure containers and things that are really important to protect and preserve the security of an election before a potential recount takes place,” Lyons said.
Bridge Michigan reporter Madeline Halpert contributed to this report.