The Morning Jolt

Elections

The Unending Election Cycle

Voters fill out their ballots at a polling station on Election Day in Detroit, Mich., November 3, 2020. (Rebecca Cook/Reuters)

There’s a Groundhog Day effect to the news today, as once again the nation’s attention returns to the Wayne County, Mich., Board of Canvassers, where the board’s two Republicans now want to un-do their certification from Tuesday night. Elsewhere, the odds of any court delaying or reversing the certification of a state’s vote tallies are slim to none, and the president is suddenly and uncharacteristically camera-shy.

Come On, Wayne County Canvasser Board Members, Make Up Your Minds!

Hey, remember everything in yesterday’s Jolt about the back-and-forth about the certification of the vote totals in Wayne County, Mich.? Now the two Republican members of the County Board of Canvassers want to rescind the certification:

In affidavits signed Wednesday evening, the two GOP members of the four-member Wayne County Board of Canvassers allege that they were improperly pressured into certifying the election and accused Democrats of reneging on a promise to audit votes in Detroit.

“I rescind my prior vote,” Monica Palmer, the board’s chairwoman, wrote in an affidavit reviewed by The Washington Post. “I fully believe the Wayne County vote should not be certified.”

Palmer and Hartmann said in their affidavits that they believed they had a firm commitment to an audit. But Palmer says in her affidavit that Michigan Secretary of State Jocelyn Benson (D) later said she didn’t view their resolution asking for an audit as binding.

“I felt misled,” Palmer told The Post earlier on Wednesday, before signing the affidavit. “I stand firm in not certifying Wayne County without the audit.”

I’m not sure there’s a legal mechanism for the two members to withdraw or un-do a certification by themselves, although a judge could conceivably order just about anything if he concluded that election results were fraudulent. On Monday, the Michigan Court of Appeals rejected a request to delay the certification of the county’s votes, and the lawyer for that case is hoping the Michigan Supreme Court will accept his appeal.

But as noted yesterday, even if the county board had stalemated or been unable to certify the results, the whole matter would automatically be transferred to the State Board of Canvassers to evaluate for themselves. Then under Michigan law, “board of county canvassers shall immediately deliver to the secretary of the board of state canvassers all records and other information pertaining to the election. The board of state canvassers shall meet immediately and make the necessary determinations and certify the results within the 10 days immediately following the receipt of the records from the board of county canvassers.”

By comparison, Michigan’s Board of State Canvassers looks like an usually amiable model of cooperation. Then again, this quartet has probably never faced a situation quite like this before. Yesterday’s scheduled meeting was postponed, and at least one member of the board is not shrugging off allegations of improprieties: Norm Shinkle, who also serves as chairman of Michigan’s eighth congressional district Republican Committee.

“I make no predictions on this,” said Shinkle, a former state senator who lives in Ingham County.

“If you just go ahead and certify everything that comes in front of you, what prevents people from cheating? There’s got to be a penalty if there is cheating going on.”

His wife, Mary Shinkle, is a witness in Trump’s federal lawsuit as one of more than 100 GOP poll challengers who filed affidavits about their experience at the TCF Center in Detroit, where absentee votes were counted.

“She saw a lot of strange things going on,” Shinkle told Bridge, pledging to keep an open mind about the statewide election overseen by local officials in 1,600 jurisdictions.

“I only know stuff second- and third-hand,” he said. “When it comes to my job on the Board of State Canvassers, I wait until I hear both sides before I make a decision.”

Shinkle said he doesn’t “make much” of Trump’s claim that he won Michigan: “I haven’t seen evidence to back up the statement yet.”

And while he said he’s “heard about” possible election fraud, “I haven’t seen it” and “I’m not convinced of it,” Shinkle told Bridge.

Right about now, someone may be exclaiming that a district GOP chairman shouldn’t be serving on a state board of canvassers. Every canvassing board in the state consists of two Democrats and two Republicans. The other three members of the state board are a staff attorney for Republicans in the state house and a former assistant prosecutor, the recording secretary of the International Brotherhood of Electrical Workers Local 58 and former vice president of the Metro Detroit AFL-CIO, and a retired political coordinator for the American Federation of Teachers in Michigan.

Back during the Florida recount in 2000, some people argued that people with strong political affiliations or views shouldn’t serve in roles overseeing and running elections. The problem is that people with strong political affiliations or views are often the only ones interested in doing the work required to oversee and run elections.

Eh, No, Fellas, Certifications Are Pretty Final

Yesterday, I wrote that “Once [the state] certifications [of the vote] occur, the vote count is over and the presidential election truly is resolved.” A few readers argued that wasn’t true, as the Florida Supreme Court effectively un-certified and postponed the certification of Florida’s vote in 2000:

On November 26, 2000, Florida Secretary of State Katherine Harris certified that Bush had won the election by a 537-vote margin. Gore then sued Harris because all of the recounts had not been completed when she certified the results. On December 8, 2000, the Florida Supreme Court sided with Gore, ordering that all statewide “undervote” ballots, or punch-card ballots that had been cast but not registered because of a problem called a “hanging chad,” needed to be recounted.

However, the U.S. Supreme Court subsequently ruled, 7–2, that there was no existing legal standard to recount the punch-card ballots, and ruled 5–4 that any solution to the recount problem couldn’t be put in place by December 12, the safe-harbor deadline. (Note the distinction, which most Democrats prefer not to remember, as it means Justices Stephen Breyer and David Souter agreed that the Bush campaign had a legitimate argument about only recounting the groups of ballots most advantageous to Gore.) The U.S. Supreme Court decision meant that the original certification by Katherine Harris remained in place. So, yes, the Florida Supreme Court reversed the certification . . . for a couple of days, and then it reverted back to the original.

That’s the only comparable case that most legal experts can think of, and you have to look really long and hard to find any election-law expert who thinks that any of the state supreme courts in these key states will delay or reverse a certification of the vote, based upon the arguments and evidence that the Trump campaign and state Republican parties have shown so far.

If you’ve been paying attention, you’ve seen that up to this point, judges have been really unimpressed and unconvinced by what the Trump campaign lawyers have brought to court. Furthermore, there’s an exceptionally high bar to invalidating a vote, and no judge is going to throw out a vote based on an argument that it might be fraudulent. A lot of judges will see a court order barring the certification of election results as disenfranchising every voter in the state. They’re not going to take a step that is the election-law equivalent of launching nuclear weapons just because Trump lawyers have a bunch of affidavits claiming shenanigans.

Yesterday evening, our Andy McCarthy — no slouch in the courtroom, and no knee-jerk critic of Trump — looked at it all and concluded, “realistically speaking, the legal battle over the 2020 election is over.

So, is it possible that some state supreme court will rule that the certification deadline must be pushed back? Sure. Is it likely? No, not at all.

The Electoral College formally votes on December 14. Federal law includes a “safe harbor” deadline that basically declares that the candidate who is deemed the winner six days before the Electoral College meets is considered the winner. So the real deadline is December 8.

A Suddenly Camera-Shy President

Since President Trump delivered his remarks at 2:20 a.m. the Wednesday after Election Day, he’s barely been in front of the cameras. He participated in Veterans Day events, and he held the briefing about Operation Warp Speed on Friday, November 13. Other than that, he has had no public events scheduled.

Election Day was 16 days ago.

ADDENDUM: In addition to President-elect Joe Biden’s picks for treasury secretary and attorney general, the other big indicator of how his presidency will proceed is his selection for secretary of state. Your mileage may vary, but Delaware senator Chris Coons would be fine, William Burns would be a pleasant surprise, Tony Blinken would be okay, and Isaac Schorr is right, Susan Rice would be the most ominous selection.

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