09 Dec Courts Issue Conflicting Rulings on Michigan Vote Recount

On Tuesday, the Michigan Court of Appeals ordered a halt to the recount of that state’s presidential election vote sought by Green Party candidate Jill Stein, while a federal appeals court ordered the process to proceed.

On November 30, 2016, Stein filed a petition seeking a statewide recount of the election, with the recount set to begin on December 2, 2016.  However the day before the scheduled recount, President-elect Donald J. Trump filed objections to Stein’s petition.  On December 2, 2016, the Michigan State Board of Canvassers deadlocked as to Mr. Trump’s objections, resulting in an automatic rejection of the objections.  It is these objections that were the subject of litigation in the Michigan Court of Appeals, with an application for by-pass pending in the Michigan Supreme Court.

Federal Court Action

On December 2, 2016, Stein and Michigan voter Louis Novak filed a complaint and a motion for a temporary restraining order or preliminary injunction based on First and Fourteenth Amendment claims under 42 U.S.C. § 1983, asking the United States District Court for the Eastern District of Michigan to enjoin Trump from delaying the recount until December 7, 2016, and requiring the recount to begin immediately without observing the waiting period law.

Stein asserted Michigan’s waiting period law would make it impossible for the recount to be completed by the federal deadline.  Federal law requires that all disputes over a state’s delegation to the Electoral College be resolved by December 13, 2016.  Without completion of the recount, any controversy regarding which candidate’s electors had been elected in the November 8 election might ultimately be decided by Congress, rather than conclusively determined by Michigan.

On December 5, United States District Judge Mark A. Goldsmith granted the temporary retraining order, and required the recount to begin at noon the same day.  Judge Goldsmith found Stein had shown a likelihood of success on the merits of the claims that the two business day waiting period, as applied in this case, would likely violate their right to vote under the First and Fourteenth Amendments.  See Stein v. Thomas, No. 16-14233, 2016 WL 7046022, at *2 (E.D. Mich. Dec. 5, 2016), aff’d sub nom. JILL STEIN & LOUIS NOVAK, Plaintiffs-Appellees, v. CHRISTOPHER M. THOMAS, in his official capacity as Dir. of Elections for the State of Michigan, & JEANETTE BRADSHAW, NORMAN D. SHINKLE, JULIE MATUZAK, & COLLEEN PERO, in their official capacities as Members of the Michigan Bd. of Canvassers, Defendants, & The MICHIGAN REPUBLICAN PARTY, & WILLIAM D. SCHUETTE, in his official capacity as Attorney Gen. of the State of Michigan, Intervenors-Defendants-Appellants., No. 16-2690, 2016 WL 7131508 (6th Cir. Dec. 6, 2016).

Notably, Judge Goldsmith found “the perceived integrity of the presidential election as it was conducted in Michigan at stake,” and that “the public interest would be served by the issuance of temporary relief” because “[t]he fundamental right invoked by Plaintiffs—the right to vote, and to have that vote conducted fairly and counted accurately—is the bedrock of our Nation.”  Id. at **2-3.   “Without elections that are conducted fairly—and perceived to be fairly conducted—public confidence in our political institutions will swiftly erode.”  Id.  at *3.

The Michigan Republican Party and Michigan Attorney General Bill Schuette appealed the order to the Sixth Circuit Court of Appeals and moved for a stay of the district court’s order,  but the Sixth Circuit affirmed the order on December 6, which required Michigan election officials to commence recounting the presidential votes two days earlier than would have been provided for under Michigan law.  See JILL STEIN & LOUIS NOVAK, Plaintiffs-Appellees, v. CHRISTOPHER M. THOMAS, in his official capacity as Dir. of Elections for the State of Michigan, & JEANETTE BRADSHAW, NORMAN D. SHINKLE, JULIE MATUZAK, & COLLEEN PERO, in their official capacities as Members of the Michigan Bd. of Canvassers, Defendants, & The MICHIGAN REPUBLICAN PARTY, & WILLIAM D. SCHUETTE, in his official capacity as Attorney Gen. of the State of Michigan, Intervenors-Defendants-Appellants., No. 16-2690, 2016 WL 7131508, at *1 (6th Cir. Dec. 6, 2016).  Notably, the Sixth Circuit stated that “[i]f, subsequently, the Michigan courts determine that Plaintiffs’ recount is improper under Michigan state law for any reason” the court expected  the federal district court “to entertain any properly filed motions to dissolve or modify its order in this case.”  Id. at *4.

Competing State Court Action 

While these federal proceedings were going on, on December 5 the Attorney General and President–Elect Donald J. Trump filed applications for mandamus before the Michigan Court of Appeals and the Michigan Supreme Court attacking the recount on substantive grounds under Michigan law.  They asked the state courts to compel the Board of State Canvassers  to reject the November 30, 2016 petition of Green Party Presidential Candidate Dr. Jill Stein to recount the votes cast in general election, and to cease any and all efforts to conduct the requested recount, arguing in part that Stein’s petition failed to meet the requirements of MCL 168.879(1)(b) because she is not an aggrieved candidate.  See Attorney Gen. v. Bd. Of State Canvassers, No. 335947, 2016 WL 7108573 (Mich. Ct. App. Dec. 6, 2016).

The Court of Appeals agreed and issued a writ of mandamus on December 6, directing the Board of State Canvassers to reject the November 30, 2016 petition of candidate Stein that precipitated the current recount process.  The court also retained jurisdiction to hear future arguments on the matter.  Id.  

The appeals court reasoned that for Stein to meet the “aggrieved” candidate requirement under subsection 879(1)(b), the candidate must be able to allege a good faith belief that but for mistake or fraud, the candidate would have had a reasonable chance of winning the election.  Id. The court found Stein’s petition failed to meet the requirements of subsection 879(1)(b) because she did not allege, and could not allege in good faith, that she was “aggrieved on account of fraud or mistake in the canvass of the votes” for the Office of President of the United States.  Id.  It noted, “[t]he vote totals for President–Elect Trump and Dr. Stein cannot be characterized as close, nor will a slight change in these totals be sufficient to change the outcome of the election: President–Elect Trump received 2,279,543 votes and Dr. Stein received 51,463 votes. The 2,228,080 difference in vote totals assures that no change in the vote totals is reasonably likely to change the previously announced result in Dr. Stein’s favor.”  Id.  Under these circumstances, the court found, the Board had a clear legal duty to reject Stein’s petition.

Victory for Trump?

The 6th Circuit’s decision granting Stein’s motion came within hours of the state Michigan Court of Appeals’ order halting the recount.  The conflicting rulings had both sides claiming victory, but left unclear on Tuesday evening where Stein’s bid to recount the vote in Michigan stood.  Stein lawyer Matthew Brinckerhoff referred to the 6th Circuit ruling as a victory, saying “[t]oday, Trump and his GOP allies in Michigan tried everything in the book to stop the recount, and they failed.  This recount is continuing in spite of their efforts to suppress the vote.”  The state’s Republican attorney general, Bill Schuette, said in a written statement he was “grateful,” and that he knew “Michigan taxpayers agree, that the Michigan Court of Appeals has adhered to the rule of law, and clarity in our Michigan statute in agreeing that Jill Stein is not an aggrieved candidate and the recall must stop.”

Stein, who received only about 1 percent of the presidential vote on Nov. 8, also sued in federal court in Pennsylvania on Monday to try to force a statewide recount of U.S. presidential votes there.  Stein also pushed for a recount that is under way in Wisconsin, which, with Michigan and Pennsylvania, was key to Republican President-elect Donald Trump’s victory.

While Stein’s moves are unlikely to change the outcome of the election, she has maintained they are necessary to ensure the integrity of voting systems.