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Amid a series of legal losses, President Trump and his campaign are becoming more brazen in their attempts to interfere with the certification of the election results in Michigan and other states that Trump lost, using tactics that experts say are doomed to fail but will continue to undermine democracy.
“There isn’t a realistic path for Trump to change the outcome,” said Wendy Weiser, vice president of the Democracy Program at the Brennan Center for Justice at NYU School of Law, who called the campaign’s actions “autocratic theater” in an interview with Yahoo News. “But he is doing a lot of damage, and other people are being tainted along the way.”
As his legal options dry up, Reuters reported that Trump’s strategy for staying in power is to get Republican state legislatures in key states to intervene at the stage of naming representatives to the Electoral College, which ordinarily is a formality.
President Trump met with Michigan House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey at the White House on Friday. The meeting was viewed as a veiled attempt by Trump to convince the GOP legislators to cooperate with a plan to override the will of voters in Michigan, where President-elect Joe Biden won by more than 150,000 votes. A video clip on Twitter shows reporters asking Shirkey if he’ll “honor the will of Michigan voters” after he arrived at Reagan National Airport near D.C.
On Friday evening, though, the lawmakers issued a joint statement saying that they intend to “follow the law and follow the normal process regarding Michigan’s electors.”
My statement on our meeting with the President today: pic.twitter.com/npKXVFI60x
— Sen. Mike Shirkey (@SenMikeShirkey) November 20, 2020
The Associated Press reported that discussions were taking place at the White House about also inviting Pennsylvania GOP leaders to meet with the president. On Wednesday, Trump’s campaign filed a lawsuit in Pennsylvania asking a federal judge to simply declare Trump the winner of the state and have its electors vote accordingly. Biden beat Trump in Pennsylvania by roughly 81,000 votes.
Former Michigan Gov. Rick Snyder slammed Trump’s actions in an interview with Yahoo News’ “Skullduggery” podcast on Friday, calling the president a “divider-in-chief” who is undermining democracy.
“I’m concerned about the damage that’s going to go on for the next several years in terms of misinformation, creating doubts in the minds of his supporters, things like that,” he said. “There’s a lot of damage.”
Trump’s summoning of Shirkey and Chatfield to the White House came after he reportedly tried to pressure Republican officials in Wayne County not to certify the results of the election there. Wayne, the largest county in the state, includes Detroit. Biden won there by more than a 2-1 margin.
The two Republican members of the four-member Board of Canvassers initially blocked certification. That was met by an outpouring of outrage on social media, which Trump said “FORCED” them to backtrack and join the two Democrats in unanimously certifying the vote totals. The AP reported that the president then personally called the two officials, after which they filed affidavits seeking to rescind their certification, according to the Detroit Free Press. Experts say there does not appear to be a mechanism to allow that.
On Monday, the Board of State Canvassers, comprising two Democrats and two Republicans appointed by the governor, is scheduled to meet to issue final certification of the Nov. 3 election. All of Michigan’s 83 counties have certified the election results, state officials said.
The Republican National Committee and Michigan Republican Party wrote a letter to the board on Saturday, asking it to wait 14 days for a “full audit and investigation” into “anomalies and irregularities” in Wayne County, according to a copy of the letter shared by MLive.
Biden campaign lawyer and adviser Bob Bauer said Friday he’s confident that the board will certify the results as planned, cementing the win for Biden. “If they don’t,” Bauer told reporters during a videoconference, “there are legal avenues to reinforce the obligation to certify these votes — one way or another the votes will be certified, I can assure you about that.”
The board, once it has received the counties’ results, is required by Michigan law to canvass the returns and determine the results. If it fails to do so — in the event of a deadlock, for example — the campaign can ask a judge, most likely in state court because the issue concerns state law, to issue a “writ of mandamus,” a court order compelling an entity to perform a duty that’s required under law.
“Under Michigan law, the aggrieved party can bring this type of lawsuit,” Aditi Juneja, of the National Task Force on Election Crises, explained during a videoconference on Friday. “And so likely that means the candidates, the campaigns or the electors themselves,” she said.
Michigan law requires the board to make a determination, prepare a certificate of determination and deliver it to the secretary of state. It’s not the board members’ job to investigate fraud or alter the results because they don’t like the outcome.
Once the state board certifies the results, Michigan Gov. Gretchen Whitmer, a Democrat, would then certify to the U.S. secretary of state the names of the state’s designated electors, according to state law.
Michigan, like every state, has Electoral College votes equal to the number of its representatives in the House of Representatives and the Senate: 16. Presidential candidates on the Michigan ballot submit a list of 16 qualified electors to the secretary of state’s office. The 16 electors whose candidate wins the state’s popular vote convene to cast their votes at the Michigan State Capitol in December. In the ordinary course, these would be loyal Democrats who would vote for Biden for president and Kamala Harris for vice president.
“States, primarily through their legislatures, set the manner in which each state determines its representatives in the Electoral College,” Adav Noti, of the Campaign Legal Center and National Task Force on Election Crises, told reporters Friday. “And all 50 states — and the District of Columbia — have done that through the popular vote. They all have laws on the books saying we will allocate our members of the Electoral College based on the winner of the popular vote in our state. And then Congress set the date on which that appointment has to happen this year [on] Nov. 3.”
This means that the electors have already been chosen.
“All that’s left to do now is count the votes, if necessary recount the votes, and those will determine the winner of each state,” Noti said. Then, under federal law, states have until Dec. 8 to determine the winner of the popular vote, a determination that must be made in accordance with the laws of the state as they existed on Election Day.
On Dec. 14, the nation’s electors will cast their votes in their respective states. Those votes are sent to the newly elected Congress, which will count the votes on Jan. 6.
Experts told Yahoo News that any attempt, in Michigan and elsewhere, to have the legislature step in and select pro-Trump electors in states where Biden won the popular vote is futile.
“I think the most [the Trump campaign] can realistically hope for is to have both the Biden electors vote and the Trump electors vote,” Paul M. Smith, an election expert at Georgetown University Law Center and the vice president for litigation and strategy at the Campaign Legal Center, told Yahoo News. “One of them certified by the governor and the other one certified by the legislature, and let Congress figure out whose votes to count.”
Smith noted that this is unlikely to work and would be “grotesquely antidemocratic.”
“In the absence of any real evidence of fraud, it’s hard for me to imagine that a legislature is going to actually do it,” he said.
If there’s a dispute over electoral votes in Congress, the House and the Senate meet separately and vote on which set of electoral votes to count, according to Noti. If they disagree, there’s a final tiebreaker provision in federal law that says the electoral votes certified by the state are the votes that get counted.
The near-impossible likelihood of the Trump campaign prevailing in its bid to overturn the election doesn’t mitigate the harm Trump and his advocates, who have repeatedly assailed the election process with unsubstantiated allegations of fraud, are doing to the country, experts said.
“He is trying to either effectuate a coup or to give the impression that he can effectuate a coup,” Weiser said. “He won’t succeed. But that doesn’t mean that a sitting president of the United States lending credence to the idea of a coup when he doesn’t win the election isn’t dangerous.”
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