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With Michigan’s presidential vote certified, is Trump out of options?

LANSING — President Donald Trump’s long-shot bid to overturn Michigan election results suffered a major blow Monday as the Board of State Canvassers certified statewide results making official his 154,188-vote loss to Democratic President-elect Joe Biden. 

The certification leaves Trump with only one clear option to continue contesting an election he claims to have won: a recount, which experts say would be costly and unlikely to succeed.

Barring an unprecedented recount reversal, Biden is poised to receive all 16 of Michigan’s votes in the Electoral College and is on track to become the 46th president of the United States. It’s the latest in a series of battleground state setbacks for Trump,  who on Saturday lost a key federal lawsuit in Pennsylvania and is now requesting a second recount in Georgia.

The Trump campaign has not signaled next steps for Michigan, but in a Monday night statement, senior legal advisor Jenna Ellis called the certification “simply a procedural” step. She promised continued action nationwide to “count all the legal votes” and ensure “the final results are fair.”

Trump’s last stand: a recount?

Under state law, Trump and other statewide candidates like Republican U.S. Senate hopeful John James could not even request a recount until after certification. Now, they have just 48 hours to do so by petitioning the state. 

“For those who question the outcome, the remedy stage begins after you say, ‘yes,’” former Michigan Elections Director Chris Thomas told state canvassers prior to their vote. “Recounts, audits, investigations are all out there waiting for you.”

Michigan’s Republican-led Legislature made the recount process somewhat harder following a widely criticized 2016 request from Green Party presidential candidate Jill Stein, who prompted a hand recount in a contest she had no mathematical chance of winning. 

Candidates must now file a notarized statement saying they have “good faith” that they could win a recount. They must identify each precinct they want recounted and pay a deposit to the county for each precinct depending on how close the race is. If the recount changes the election results, they get their money back. If it doesn’t, the county keeps the money. 

Because Trump lost to Biden by 2.8 percent of the overall state votes cast in the race, the Trump campaign would have to pay $125 per precinct to recount. There are 503 precincts in the City of Detroit, so if he wanted to recount all of them, it would cost $62,875. Statewide costs could approach $1 million. 

Related: Three ex-governors agree: Michigan should certify election for Joe Biden

If a candidate asks for a recount and pays for it, all ballots cast in the precincts chosen would be recounted by hand. But precincts can’t be recounted in some cases, including if there is an opening found in a ballot bag, if the numbers on the ballot box seals are different than those in the poll book, or if the number of ballots in a precinct don’t match the total number of voters who are recorded in the poll books. 

That happened in several Michigan precincts that remained “out of balance” following county canvasses, including 71 percent of all absentee precincts in Detroit, a point GOP critics pointed out in an unsuccessful bid to delay Monday’s certification vote. 

Even if a recount were conducted, it is unlikely to change the results, said David Becker, executive director of the nonprofit Center for Election Innovation & Research. “I don't know of any statewide recount in the history of the U.S. with a margin of more than 1,000 votes that was ever overturned,” he said this month. 

The electoral process commences

While there was intense debate over what would happen if the election was not certified Monday, Michigan law prescribes a clear process for awarding Electoral College votes now that the results are final: Joe Biden will get all 16 of the state’s electors. 

And that process is supposed to begin immediately under state statute:

“As soon as practicable after the state board of canvassers has, by the official canvass, ascertained the result of an election as to electors of president and vice-president of the United States, the governor shall certify, under the seal of the state, to the United States secretary of state, the names and addresses of the electors of this state chosen as electors of president and vice-president of the United States.“

Gov. Gretchen Whitmer will also be required to send the federal government the names of the 16 Biden electors, who were already chosen by the Michigan Democratic Party (the Republican Party had also selected people to serve as Trump electors in the event he won the state). 

Those electors will formally meet in the Michigan Capitol on Dec 14 to cast their votes for Biden, who is poised to win the Electoral College by a 306-232 margin, according to still unofficial results in some states. 

“Those votes by the electors are ministerial,” said Mark Brewer, an attorney and former Chairman of the Michigan Democratic Party. “They have no choice but to vote for the candidate for whom they are elected as an elector. That has always been a celebratory moment in Michigan, and around the country, and that’s the way it should remain.”

There will be post-election audits

State and national Republican Party officials wanted the Board of State Canvassers to delay certification for 14 days to allow an audit to be performed first. But experts said Michigan law does not even allow access to documents like poll books and ballot boxes until certification.

Michigan routinely conducts audits after election results are canvassed and any recount requests are completed. The Bureau of Elections will do so again soon under plans announced last week by Secretary of State Jocelyn Benson.

The state will conduct performance audits in local jurisdictions and will also conduct a risk-limiting audit for the first time in a presidential contest. Those investigations could uncover problems, but they can’t change results that are now final. 

“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. 

“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.”

And a possible legislative review

The state canvassing board —  composed of two Republicans and two Democrats — voted 3-0 Monday to certify the election results, with Republican Aaron Van Langevelde, joining the two Democrats. 

Fellow GOP canvasser Norm Shinkle refused to vote for certification, but colleagues from both sides of the aisle supported his motion to request the Michigan Legislature conduct an “in-depth review” of the Michigan election process and procedures. 

Shinkle specifically raised concerns about Wayne County and Detroit, where 71 percent of the city’s absentee ballot counting precincts were “out of balance,” meaning the number of ballots did not exactly match the numbers of voters recorded in poll books, discrepancies widely attributed by experts to inadvertent errors and not massive fraud. 

The legislative review, as requested, would “address concerns that have been raised by experts and citizens about our elections in order to assure our citizens that Michigan elections are accurate, transparent and fully protective of all citizens’ constitutional rights,” Shinkle said.

Michigan Senate Majority Leader MIke Shirkey, R-Clarklake, said the upper chamber will honor the canvassers unanimous request “to closely review Michigan's elections process to identify much-needed improvements."

Tony Daunt of the Michigan Freedom Fund, a conservative group with ties to Trump’s U.S. Education Secretary Betsy DeVos, praised Monday’s certification vote but still urged state officials to investigate accusations of fraud, human error and irregularity. 

“The president failed to present evidence (that fraud) existed in anywhere close to sufficient number to change the results of the election, but serious allegations and sworn affidavits – on any scale – require a thorough and transparent investigation so any fraud or mistakes never occur again,” Daunt said in a statement.

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