Two days after the November presidential election, Michigan is knee-deep in confusion, as many feared.
There were few problems statewide on Election Day. But chaos began Wednesday afternoon, when the campaign for President Donald Trump announced it would file a lawsuit in the state Court of Claims to stop the counting of absentee ballots.
The suit sought video surveillance of ballot drop boxes and to halt the counting of absentee ballots. Judge Cynthia Stephens rejected the suit Thursday, saying the case is based on hearsay and moot because ballots are already counted.
Another lawsuit, from the conservative Election Integrity Fund, was filed Wednesday to stop Detroit election workers from duplicating ballots that couldn’t be read through tabulation machines, which is a fairly routine process.
The prospects for that suit also are murky at best since the ballots already have been counted.
Senate hopeful John James joined Trump and others in voicing concerns — without proof or evidence — about wide-scale fraud. James, who is behind Sen. Gary Peters by 80,000 votes, wouldn’t concede Thursday, saying he fears millions of residents may be “disenfranchised by a dishonest few who cheat.” .
So what are their options now?
Trump could appeal Thursday’s lawsuit, but there is no way to uncount votes that have already been counted.
Here’s what happens next in Michigan’s election process.
Where does Michigan’s election stand?
All of Michigan’s votes, including those cast in-person and absentee — have been tabulated and Democratic nominee Joe Biden won the state.
Results have been reported from cities and townships, where they were administered with the oversight of local election officials, to county-level election officials.
Now, county boards of canvassers are meeting to certify election results in what’s called the canvassing process. That’s when election results go from unofficial to official.
How does the canvassing process work?
Each board of canvassers at the county and state level has four members, two of each major political party.
County canvassers review the unofficial results to make sure the number of voters matches the number of ballots cast. Any discrepancies will be reviewed by the canvassers and may require the ballots be brought before the board in a public meeting including the clerk.
If records are incomplete or contain errors, canvassers can ask the local clerk to correct them. They can investigate discrepancies but they can’t prosecute alleged election law violations — that must take place in the courts.
But this is an opportunity for the Trump campaign to state its case and put forward any evidence of wrongdoing, said Steve Liedel, an attorney with the Dykema law firm who served as legal counsel to former Gov. Jennifer Granholm.
“If they believe that the vote was cast improperly or they have actual evidence of fraud or other violations of the elections law, that’s their opportunity to present it,” he said. “If they have no evidence and can’t present any facts, then the count would proceed.”
However, “elections are not a judicial process,” Liedel said. If a campaign believed that the canvassers weren’t doing their due diligence or there was a problem with the way the election was run, it could ask Secretary of State Jocelyn Benson to remedy the situation or once again go to court.
An elections attorney who regularly works on Republican causes told Bridge Michigan it would be difficult for canvassers to make any changes to the results and agreed most remedies would have to be pursued in court.
County canvassers are required to complete their canvass by Nov. 17. At least three of the four must vote to approve the results. Then, they send what they found to the Board of State Canvassers, who must meet by Nov. 23 and certify final results by Dec. 13, also by a vote of at least three of the four.
Can the canvassers choose not to certify the results?
It rarely happens, but county or state canvassers could decide not to certify the election results if at least two agree with the Trump campaign that election law was violated.
That would likely, again, end up in court. The other canvassers, campaigns, the city or county clerks or Benson could order them to certify the election by taking those canvassers who refused to certify to court.
The electoral college votes for president on Dec. 14, the day after Michigan’s state canvassing deadline, so a delay in the canvassing process could be used to delay the overall election.
“If the intent is just to delay the count so that the count can’t be certified in a timely manner in time for the electoral college to convene and result to be transmitted to Washington, you could certainly have attempts at that,” Liedel said.
When can a recount happen?
Presidential campaigns aren’t allowed to request a recount until the final election results have been certified by the Board of State Canvassers. Then they have 48 hours to petition for the recount.
And due to Michigan’s razor-thin election last time and the recount request from then-Green Party candidate Jill Stein, there are new rules that campaigns must abide by if they want a recount.
There is no threshold for how close a race has to be for a recount, but candidates must file a notarized statement that says they have a “good faith” belief they would have a reasonable chance of winning after a recount and identify which precincts they want recounted.
The campaign has to pay a deposit to the county per 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 2.7 percent of the overall 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.
How does a recount work?
If a candidate asks for a recount and pays for it, all of the ballots for the precincts chosen would be recounted by hand.
Michigan has what many consider to be the strictest recount law in the country. It restricts precincts from being recounted if myriad things are wrong without an explanation, 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.
If one of these issues is found in a precinct, the whole precinct is ineligible from being recounted and the original ballot totals stand. There were widespread issues with this in Detroit in August.
But even if a recount were conducted, it is unlikely to change the results, said David Becker, executive director of the Center for Election Innovation & Research on Wednesday.
“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.
“There’s probably lower-hanging fruit for the Trump campaign someplace other than Michigan,” Liedel said.
In 2016, Trump won Michigan by just over 10,000 votes. At the time, he argued against Stein’s recount because he didn’t think it would change the result.
This time, he’s lost by nearly 150,000 votes.
“You may have some other states where the difference is in the four digits or five digits. That’s probably more likely” to actually affect the results, Liedel said.