Federal, state courts duel over Michigan’s recount

Jonathan Oosting, and Chad Livengood

Lansing — A Michigan Court of Appeals panel has ordered the Board of State Canvassers to reconsider and reject a recount petition filed by Green Party candidate Jill Stein, ruling she did not meet the qualifications for the request because she has no chance at winning the presidential election.

The unanimous ruling, released late Tuesday, could delegitimize the statewide hand recount already underway in several Michigan counties, but the court did not explicitly order that process to stop. Separately, a federal appeals court on Tuesday upheld an order forcing the state to start the recount Monday.

The three-judge state panel ruled Stein does not meet the definition of an “aggrieved” party necessary for a proper recount petition

Stein could only be considered aggrieved if she lost an election she otherwise would have won were it not for errors in the certified vote count, the court said. The Green Party nominee received around 1 percent of the vote in Michigan, finishing a distant fourth to President-elect Donald Trump, Democrat Hillary Clinton and Libertarian Gary Johnson.

The Board of Canvassers had a clear legal duty to reject Stein’s petition “because she has not alleged, and cannot allege in good faith, that she is ‘aggrieved on account of fraud or mistake’ in the presidential election,” according to the opinion.

Separately, the 6th Circuit U.S. Court of Appeals rejected appeals from the Michigan Republican Party and Attorney General Bill Schuette, who had each asked the court to lift an order requiring the state to conduct the recount.

In a 2-1 ruling, the federal appeals court upheld an order from U.S. District Judge Mark Goldsmith, who ruled that delaying the recount could jeopardize the state’s ability to complete it by a Dec. 13 deadline.

But the panel also suggested that Goldsmith should reconsider his order if state courts ruled against Stein. The judge has scheduled a hearing 10:30 a.m. Wednesday at the Theodore Levin U.S. Courthouse in downtown Detroit to consider the matter.

“If, subsequently, the Michigan courts determine that plaintiffs’ recount is improper under Michigan state law for any reason, we expect the district court to entertain any properly filed motions to dissolve or modify its order in this case,” said the 6th Circuit Court opinion.

Late Tuesday, Schuette filed a motion to the federal appeals court asking it to stay an order that has allowed the recount, citing the state appeals court ruling.

The dueling court rulings came as recount operations continued in eight Michigan counties, including Ingham County where officials expected to finish Tuesday night after a day and a half of counting ballots.

“In the interim, we will keep recounting,” said Chris Thomas, the state’s elections director.

Mark Brewer, a Southfield attorney representing Stein, noted neither the state or federal appeals courts ordered the recount to stop, suggesting the state Board of Canvassers cannot do so either.

The board is scheduled to meet at 9:30 a.m. Wednesday.

The state appeals court “did not order the board to stop the recount and the board, if they did that, would be in violation of the federal court order,” Brewer said. “All they did was tell the Board (of State Canvassers) to reject the petition.

“The recount continues tonight as we speak, and it’s going to continue tomorrow afternoon until the federal court says otherwise.”

But Schuette declared victory late Tuesday, suggesting the state court ruling could halt the recount in its tracks.

“I’m grateful, and I know 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 recount must stop,” Schuette said in a statement.

The multiple court rulings capped another dramatic day of legal wrangling over the presidential recount, which began Monday around noon in Oakland and Ingham counties. Six other counties began their hand recounts Tuesday, and others are expected to start in coming days.

The U.S. 6th Circuit Court of Appeals handed down its decision about an hour after the Michigan Court of Appeals concluded its hearing over Trump and Schuette’s efforts to end the recount.

Earlier Tuesday, the Michigan Court of Appeals judges were skeptical during a hearing about crossing the federal judge who ordered Monday’s start of statewide presidential election recount.

Attorneys representing Trump and Schuette appeared before a three-judge appeals court panel as part of their effort to shut down a recount that’s already taking place in the state’s eight largest counties.

But Goldsmith’s ruling issued after midnight Monday hung over the hearing.

“His order stands until he modifies it,” Judge Christopher Murray said.

John Bursch, a special assistant attorney general representing Schuette, replied: “I completely disagree with that.”

Bursch suggested the court issue an order that would be contingent upon a federal appeals court stopping the recount.

“We will not issue a contingent order,” Presiding Judge Peter O’Connell said at the end of the hearing.

O’Connell asked Bursch whether he would be willing to sit in jail for contempt of court for stopping a recount that Goldsmith ordered to “continue until further order of this court.”

“I’m concerned about going to jail,” O’Connell said.

Brewer said during the hearing the state court has no constitutional jurisdiction to interfere with Goldsmith’s order.

Brewer argued in a brief in the appellate court the midnight Monday ruling of Goldsmith overrules any action the state courts could take at this point.

Bursch focused his efforts on convincing the appellate judges to rule on whether Stein is an aggrieved candidate with a right to a recount. Stein won less than 1.1 percent of the vote and finished in fourth place, more than 2.2 million behind Trump.

Brewer said the supremacy clause of the U.S. Constitution leaves the state Court of Appeals powerless “to grant the relief requested here — halting the recount.”

“The remedy Schuette and Trump seek — halting the recount — directly interferes with the federal court order that the ‘recount ... must continue until further order of this court,’ ” Brewer wrote in a court brief filed before the hearing.

State and municipal elections officials hastily launched the recount mid-day Monday in Ingham and Oakland counties and opened recount centers Tuesday morning in Wayne, Macomb and four other counties.

The recount moved forward Tuesday even as Brewer battled Trump, Schuette and the Michigan Republican Party in at least three separate state and federal courts through a litany of court filings and replies.

Schuette appealed Goldsmith’s order Tuesday to the 6th U.S. Circuit Court of Appeals, arguing Stein never had legal standing to seek the recount because she finished infourth place and was “injured” by the results.

Attorneys for the Michigan Republican Party filed an emergency motion late Monday to the 6th U.S. Circuit Court of Appeals, asking at court to put a stay on Goldsmith’s order and effectively shut down the recount.

The state GOP called the recount of Michigan’s 4.8 million ballots from the Nov. 8 election a “logistical nightmare” that is causing an “enormous financial impact” on local governments.

In its court filing, the GOP argued Goldsmith should not have intervened and ordered the recount to start while state courts consider challenges to the legitimacy of the recount request by Stein.

Lifting Goldsmith’s order would serve the public interest, according to the GOP, because the recount needlessly undermines faith in Michigan elections at significant cost to taxpayers.

Stein is using the recount “to line her pockets with funds donated from those she has scared into believing that Michigan’s electoral process was hijacked by nameless foreign entities,” Michigan GOP attorney Jason Hanselman wrote in the 38-page motion.

“It would be bad enough if she were wasting only her own time and resources as part of her electoral farce. But she is also wasting millions of dollars in taxpayer money.”

Trump won Michigan’s Nov. 8 election, topping Democrat Hillary Clinton by 10,704 votes, according to results certified last week by the Board of State Canvassers. Stein finished a distant fourth.

On Friday, Trump sued Michigan election officials in an attempt to stop the recount.

Stein requested recounts in Michigan and two other states as part of what her campaign is calling “an election integrity movement,” but she has acknowledged the effort is unlikely to change the outcome of the presidential election.