According to the news, for a brief period, Wayne county board of canvassers had a 2-2 tie over whether to certify the election results.

What would have been the effect (next steps) had the tie not been resolved locally?

Could any of those steps have resulted in Michigan's electoral votes going to Trump?

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    Your portrayal of the situation is somewhat incomplete; Wayne County's failure to certify the results would not have lead immediately to the US House of Representatives deciding the election. First, my understanding is that there's no legal impediment to the State board of canvassers from certifying the results, just because the County board declined too. Second, such a failure would mean the State legislature chooses the electors (and they have said they'd follow the popular vote). Third, Biden leads by 306. He still has a majority without Michigan. – Dan Scally Nov 18 '20 at 11:48
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    @DanScally This looks like good detail for an answer. The third point isn't directly about my question however which is only about how the Michigan electoral college votes. – Anush Nov 18 '20 at 12:34
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    I think the question could be rephrased as, "If Wayne County didn't certify (as they ultimately did), what would have happened?" – selbie Nov 18 '20 at 22:38
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    Just to throw another monkey wrench into the situation, the Republicans on the board are now trying to revoke their certification. – zibadawa timmy Nov 19 '20 at 11:29
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    @DrSheldon - The final question in the body relates to the title question. The "next steps" question is the means to get to the final question, which, if true, then answers the title question. – Rick Smith Nov 19 '20 at 23:00

If the board had not acted, someone could have brought a mandamus action in whichever court had jurisdiction over the case (or the legal equivalent whatever it is called under Michigan law, in Colorado is it called a Rule 106 action) to compel the board to take a non-discretionary action that it is obligated to take under the law when certain facts are present.

Just because a board votes on something doesn't mean that its decision is lawful, and if it makes an unlawful decision, it can be compelled to act lawfully (with the court declaring the result if the board members won't change their vote). This could have happened in this case.

Of course, it isn't impossible that no one brings a proper lawsuit in time, or that the judges involved come to the wrong answer. It is certainly possible that if enough people in the process screwed up, that it could cause Michigan's electoral votes to go to Trump. Of course, even if that happened, it wouldn't change the overall winner of the electoral college vote because Biden could win without Michigan's electoral votes. But, the fact that this act of unlawful defiance was futile if successful in isolation, and could only win if enough people failed to apply the law correctly, has a lot to do with why they eventually relented.

  • That's very interesting that it could have gone straight to court. Is it in fact illegal for them not to decide to allocate the votes to the Dems? What would the main argument have been in any court case? – Anush Nov 19 '20 at 10:40
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    The board has a non-discretionary duty to certify results that reflect the actual vote count. – ohwilleke Nov 19 '20 at 21:54

What would have been the effect (next steps) had the tie not been resolved locally?

  1. The Wayne County Board of Canvassers fails or refuses to certify the election results.

(2) If the board of county canvassers fails to certify the results of any election for any officer or proposition by the fourteenth day after the election as provided, the 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. The cost of the canvass must be borne by the county involved. ML 168.822

In effect, the state board can certify the Wayne County results.

  1. The Michigan Board of State Canvassers, in sections 844 and 845, shall count the votes as given to them, then certify, basically, that everything adds up. Following that, they determine who was elected and shall send the results to the secretary of state. (The use of shall indicates a requirement.)

The board of state canvassers shall examine the statements received by the secretary of state of the votes cast in the several counties and prepare a statement showing the total number of votes cast for all candidates for each office, the names of the persons for whom such votes were cast, the number of votes cast for each of such persons, [...]. ML 168.844

The members of the board of state canvassers shall certify as to the correctness of the statement provided for in section 844 and subscribe their names to the statement. The members of the board of state canvassers shall determine which persons have been duly elected to each office [...]. The board shall certify the determinations and deliver the statement and certificate of determinations to the secretary of state. The secretary of state shall file and preserve the statement and certificate of determinations in his or her office and shall immediately execute and deliver a certificate of election to each person elected. [...] ML 168.845

After the board of state canvassers issues its determination regarding electors, the governor shall certify [...]. At that point, Republicans no longer exert any control over the process.

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. The governor shall also transmit to each elector chosen as an elector for president and vice-president of the United States a certificate, in triplicate, under the seal of the state, of his or her election. ML 168.46

  1. The Trump campaign contests the determination made by the board of state canvassers.

  2. The Michigan legislature, in joint convention, by a majority of 148 members, decides that Trump electors are elected.

When the determination of the board of state canvassers is contested, the legislature in joint convention shall decide which person is elected. ML 168.846

However, there appears to be no authority for the legislature to alter the number of votes received by a political party. Deciding that Trump electors were elected would have no effect and would likely be a violation of law.

[...] The candidates for electors of president and vice-president who shall be considered elected are those whose names have been certified to the secretary of state by that political party receiving the greatest number of votes for those offices at the next November election. ML 168.42

Could any of those steps have resulted in Michigan's electoral votes going to Trump?

No. It appears that the presidential election is the one election the legislature can do nothing about. And all preceding steps are well-defined by law.

Could Michigan Republicans have given the electoral college votes to Trump?



According to Detroit News, there's precedent for the state board to certify results that a county board did not:

The Wayne County Board of Canvassers failed to certify the 2013 mayoral primary candidates within 14 days and left the decision to the Board of State Canvassers. The Michigan Bureau of Elections reviewed the ballots, and the state board eventually certified the results and found write-in candidate Duggan won the primary.

This is of course legal, as the first part of Rick's answer explains.

Note that the Michigan state board has not yet certified the results in the 2020 presidential election in the state, and the RNC has requested them to "pause" the certification.

In a letter sent Saturday, Republican National Committee Chair Ronna McDaniel and Michigan Republican Chair Laura Cox urged the [state] board to adjourn for 14 days to allow a full audit and investigation so "numerical anomalies and credible reports of procedural irregularities" can be addressed.

The state board is also 2:2 split between Republicans and Democrats.

Presumably, the ultimate goal of Trump in Michigan (although the intermediate steps might differ) is similar to what was revealed in a Pennsylvania lawsuit by Trump's team, which

asked the judge to declare Pennsylvania's election results "defective" and let the Pennsylvania General Assembly choose who gets the state's 20 Electoral College votes. The General Assembly, unlike the popular vote in Pennsylvania, is majority Republican.

However, insofar leading Republican legislators of Michigan (who recently met with Trump) don't seem enthusiastic about that prospect:

"We have not yet been made aware of any information that would change the outcome of the election in Michigan and, as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election," Chatfield and Shirkey said.

There's now a long CNN article on all the "what ifs". The gist seems to be that the present Michigan laws don't give the state legislature a direct override. And the Democratic governor of Michigan could block a last minute legislative attempt at changing those laws.

As a more recent development, the Michigan state board certified the election; one of the two Republicans on the board voted for certification, while the other abstained. Coincidence or not, roughly on the same day Trump's GSA appointee announced they'd begin the transition to a Biden presidency.

  • It looks from your answer that Republican officials in Michigan could indeed have overturned the result simply by voting. Is that right? – Anush Nov 22 '20 at 8:32
  • @Anush: well, it depends whether their legislature has final say in the matter. In 2000 the Florida legislature was contemplating something like this, but they got shut down by the US Supreme Court decision; see en.wikipedia.org/wiki/Electoral_Count_Act the para that starts with "Following the 2000 election, the Florida Legislature [...]" – Fizz Nov 22 '20 at 8:35
  • Is that something we can find out online? – Anush Nov 22 '20 at 8:38
  • @Anush: yes, I've updated my previous comment with a link. – Fizz Nov 22 '20 at 8:40
  • @Anush: there's now a longer CNN article on all the "what ifs". edition.cnn.com/2020/11/20/politics/… I haven't read all of it. But the gist seems to be that the Democratic governor of Michigan could block a last minute law change. – Fizz Nov 22 '20 at 9:01

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