Authority to Prevent and Respond to Certification Abuses
Michigan’s Constitution and Election Law
Establish a Mandatory Duty to Certify Elections
The Michigan Constitution makes clear that certification is a mandatory duty:
It shall be the ministerial, clerical, nondiscretionary duty of a board of canvassers, and of each individual member thereof, to certify election results based solely on: (1) certified statements of votes from counties; or (2) in the case of boards of county canvassers, statements of returns from the precincts and absent voter counting boards in the county and any corrected returns. Mich. Const. art. II, § 7(3).
Michigan law reiterates the same requirement for county boards of canvassers in particular:
It is the ministerial, clerical, and nondiscretionary duty of each board of county canvassers, and each of the members of the board of county canvassers, to certify election results based solely on the statements of returns from the election day precincts, early voting sites, and absent voter counting boards in the county and any corrected returns. Mich. Comp. Laws § 168.822(3).
See also Mich. Comp. Laws § 168.842(4) (“It is the ministerial, clerical, and nondiscretionary duty of the board of state canvassers . . . to certify election results based solely on the certified statements of votes from counties.”); and Michigan Bureau of Elections, Procedures and Duties of the Boards of County Canvassers (July 2024, p. 21) (reiterating that “under Michigan Election law, boards of county canvassers have no canvass- or certification-related duties or powers beyond those explicitly assigned by statute” and the state’s election manual).
State Officials Can Exercise Their Statutory Authority
to Enforce the Mandatory Duty to Certify
Before a county canvass meeting even takes place, state officials may remind county board members of their mandatory duty to certify elections if it appears that they may refuse to do so. In May 2024, for example, the Michigan secretary of state sent such a letter to Delta County Board of Canvassers members after two members stated that they might not certify the county’s primary results.
If a board of county canvassers does fail to certify the results of an election by the 14th day after the election, state law requires them to immediately deliver “all records and other information pertaining to the election” to the secretary of the Board of State Canvassers. Mich. Comp. Laws § 168.822(2). The state board must then “meet immediately and make the necessary determinations and certify the results not later than the twentieth day after the election”: November 25, 2024. Mich. Comp. Laws § 168.822(2).
All costs associated with the state canvass, including costs needed for transportation, lodging, meals, and all costs incurred by state agencies, must be borne by the county that failed to certify. And the entire county board, along with all other “necessary” county staff, must be present at all times while the state board completes the canvass. Mich. Comp. Laws § 168.822(2).
State Officials and Other Affected Parties Can Obtain a Writ of Mandamus
If relief under Michigan’s certification statute is not available for any reason to certify county results, or if action is needed against the state board to compel certification, an action seeking a writ of mandamus in state court can compel certification. Citizens Protecting Michigan’s Const. v. Sec’y of State, 280 Mich. App. 273, 283 (2008) (“mandamus is the appropriate remedy for a party seeking to compel action by election officials”); McQuade v. Furgason, 91 Mich. 438, 440 (1892) (compelling local officials to canvass the returns in a writ of mandamus because “it is the settled law of this state” that “their duties are purely ministerial and clerical”); McLeod v. Kelly, 304 Mich. 120, 126 (1942) (“it is a ministerial duty of the board of State canvassers to canvass the returns and issue a certificate of election”) (citing Dingeman v. Bd. of State Canvassers, 198 Mich. 135 (1917)).
The attorney general on behalf of the secretary of state or an aggrieved candidate can establish a legal right to relief to bring a mandamus action. Mich. Comp. Laws §§ 14.28, 14.29. A voter affected by the certification dispute may have grounds to bring a mandamus action based on the state constitution’s guarantee of the “fundamental right to vote.” Mich. Const. art. II, § 4(1)(a). The same constitutional provision also gives Michigan citizens “standing to bring an action for declaratory, injunctive, and/or monetary relief to enforce the rights” it creates.
Courts Have Tools to Enforce Court Orders If an Official Still Refuses to Certify
If a certifying official refuses to comply with a mandamus order, the party who obtained the order can petition the court for contempt sanctions under state law. Mich. Comp. Laws §§ 600.1701(g), 600.1715; Citizens for Higgins Lake Legal Levels v. Roscommon Cnty. Bd. of Comm’rs, 341 Mich. App. 161 (2022) (case brought by private litigants). State law also creates a penalty against “any public officer, body or board” who refuses or neglects to perform a duty ordered in a mandamus proceeding. Mich. Comp. Laws § 600.4411.
State Officials Can Impose Penalties Against Rogue Certifying Officials
Refusing to certify an election could violate several state criminal laws and result in charges. See, e.g., Mich. Comp. Laws §§ 168.931(1)(g), 168.932(c). Prosecuting attorneys, i.e., district attorneys, generally have authority to prosecute election code violations that take place within their jurisdictions. Mich. Comp. Laws §§ 168.940, 49.11. The attorney general also has broad authority to intervene in criminal actions. Mich. Comp. Laws § 14.28.
In addition to these penalties, the governor has broad authority to remove certifying officials who violate their clear legal duty to certify an election. Mich. Const. art. V, § 10. See also Chief Deputy Attorney General Christina M. Grossi to Sen. Jeremy Moss (October 18, 2022) (noting that a state officer “who intentionally takes action other than the action required by a clear legal duty” may face “potential suspension or removal from office”).