Until several weeks ago, few Americans gave much thought to how vote canvassing works – that is, the process of adding up the ballot counts and announcing the final tally. But with all eyes on Michigan as its Board of State Canvassers meets to certify the 2020 election results on Monday, a set of rarely scrutinized legal provisions are under the magnifying glass.
Despite the false allegations and wild conspiracy theories that have led to questions about whether the Michigan Board of State Canvassers will certify this election, the outcome here is actually quite simple under the facts and the law. The bottom line is this: the voters decide the outcome of the election, and the Board’s duty to certify that vote is straightforward. The Michigan Board of State Canvassers is not an investigative body. It has no authority to dig into the election results or to indulge fantasies from campaign surrogates. All of Michigan’s counties have certified, and the Board’s role is “ministerial”: to officially aggregate those certifications for the state. If the Board follows the law, it will certify immediately.
This blog post explains why. For a fuller legal exploration, see the VPP’s memo of law.
The “Ministerial” Duty of the Board
The big question on Monday is what the Board of State Canvassers should do about rampant – and wholly meritless – allegations of fraud brought by partisan allies to President Trump. The excuse that “they just want to look into things” might sound reasonable, but it’s not. There is nothing credible to look into, and that is not what the Board is designed to do. For nearly 150 years, it has been firmly established that the Board’s role in certifying election results is “ministerial,” not “discretionary.”
The line between a “ministerial” and “discretionary” action is pretty easy to understand. Think of the distinction this way: When you apply for a driver’s license and you take a driving test, your instructor has the discretionary task of deciding whether you passed the test. But when you go to the DMV desk and present the certificate that you passed the examination, it’s not up to the clerk to go back and review the tape of your driving test. Their job is ministerial: if you have the paperwork, they give you a license.
Michigan law says that certifying the election results falls under the ministerial category. That means two things: (1) What the Board needs to do is review the canvasses from across Michigan, tally them up, and then pass forward their math; and (2) what the Board may not do is conduct an independent investigation of the numbers – for example, by digging around for evidence of voting irregularities. That’s just not their role.
Nearly 150 years of court cases make that clear. See McLeod v. Kelly, 304 Mich. 120, 127 (1942); Keeler v. Robertson, 27 Mich. 116, 122 (1873); see also Coll v. City Bd. of Canvassers of Election, 83 Mich. 367, 370 (1890). Those decisions are drawn from the unequivocal language of Michigan statutes, which place nondiscretionary duties on the Board to take certain actions within certain deadlines. The Board simply cannot do its job and meet those deadlines if it starts embarking on an independent investigation.
Worse yet, it would be an extraordinary abuse of power for the Board to begin an investigation predicated on speculative, meritless, politically driven legal theories spouted on Twitter and TV, which have already been thrown out multiple times in court. Every single legal challenge to the election in Michigan has failed.
Attempting to Investigate Allegations of Irregularities Would Be Improper
The Board of State Canvassers will have everything it needs to certify the vote on Monday, November 23. Nonetheless, some have suggested that it might defer its decision in order to investigate allegations of irregularities or allow for an audit of the election. This may sound harmless, but it’s unnecessary and improper.
First, as noted above, an investigation is outside of the Board’s power and authority. Election officials on the ground, law enforcement, and courts have the job of digging into allegations of irregularities, and they have found none in Michigan. Second, waiting for an audit would be both conceptually confused and illegal. Under Michigan law, audits must come after certification, not before. That’s because audits are not recounts or contests. They are by definition retrospective reviews designed to improve the next election. They don’t affect vote totals. See M.C.L. § 168.31a; Post-Election Manual, Michigan Department of State Bureau of Elections (Jan. 2020). An audit is literally meaningless to the function of the Board and its ability to certify the November 2020 results.
Still, a president with a penchant for conspiracy theories, abetted by a small group of lawyers who seem to have no fear of court sanctions, have tried to draw the Wayne County voting results into a vortex of misinformation. They seek to turn small, normal election issues into red herrings, diverting people from the facts: Joe Biden got over 154,000 more votes in Michigan than Donald Trump. Even if the Board of Canvassers had the authority to investigate—which it does not—the result would not change.
These anti-democratic forces are targeting Wayne County, arguing that a number of its precincts were “out-of-balance.” That’s something that happens in literally every election – it simply means the number of votes recorded did not perfectly tie with the number of people who checked in to vote there. Imbalances almost always happen due to some small human error. A voter comes in and gets a ballot but then leaves without casting it. An envelope arrives without the mail-in ballot enclosed, but the poll worker enters the person’s name in the poll book anyhow.
In the vast majority of the imbalanced Wayne County precincts, five or fewer votes were involved. Ultimately, the total number of votes implicated was 475 out of 872,469 – or .05 percent of all votes cast in the county. In 2016, far more precincts in Wayne County were imbalanced than in 2020, and the county and state Boards certified the results without an issue. And this year, a number of other Michigan counties that had unbalanced results were also certified without drama, including Ottawa (won by Trump) and Saginaw (won by Biden).
As the Monday meeting of the Board of State Canvassers commences, centuries of law and practice in election administration, and the legally cast votes of more than 870,000 Wayne County residents, are on the line. The law is clear—the commissioners must certify. And the facts are clear, too—the people of Michigan overwhelmingly elected Joe Biden.