Michigan's GOP leaders say they will honor popular vote, won't pick electors

Lansing — Republican legislative leaders say they have no plans to circumvent the popular vote for president in Michigan by appointing electors friendly to President Donald Trump to cast votes in his favor.

Representatives for Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield confirmed Friday that the winner of the popular vote in Michigan will receive the state's 16 votes in the Electoral College next month. President-elect Joe Biden defeated Trump 51%-48% in unofficial results. 

The question arose because Trump this week raised the possibility with advisers. The New York Times reported the Republican president had asked aides about having GOP legislators in battleground states pick "pro-Trump" electors to deliver him the electoral votes he needs for a second term. 

Senate Majority Leader Mike Shirkey talks to reporters on Sept. 11, 2019.

Since the 19th century, Michigan law has held that the state's electoral votes automatically go to the presidential candidate who wins the state's popular vote. Democrat Biden defeated Trump by 146,000 votes.

But some Democrats worry the GOP-controlled Legislature could try to change the setup to allow lawmakers instead to choose Michigan's electors ahead of next month's Electoral College convention.

Trump's campaign has filed lawsuits alleging irregularities in the election but has produced no evidence of widespread problems or fraud. 

"Michigan law does not include a provision for the Legislature to directly select electors or to award electors to anyone other than the person who received the most votes," said Amber McCann, a spokeswoman for Shirkey, R-Clarklake. 

"Speaker Chatfield’s position on this has been clear from the beginning — the candidate who receives the most votes will receive Michigan’s electoral votes," Chatfield spokesman Gideon D’Assandro said. 

Constitutional scholar Richard Primus commended GOP leaders for not trying to appoint their own slate of electors after the popular election has been held, saying to do so would be an "enormous affront to American democracy."

"It would produce outrage in the streets of a kind that Americans have usually been spared. It would provoke an enormous crisis because it would be just so inappropriate," said Primus, a professor at the University of Michigan Law School.

"It sounds like the Legislature understands that. That’s why no Legislature has ever set aside the vote of its public and appointed its own electors, and no Legislature ever should. It’s just inconsistent with the spirit of constitutional democracy."

Some people argue that because Article II of the U.S. Constitution says the electors are appointed "in the manner that the Legislature will direct" that the state Legislature at any moment — up until the minute before the Electoral College votes — could change how the electors are selected, Primus said

Former Michigan House Speaker Lee Chatfield speaks to supporters of President Donald Trump at a rally in Norton Shores on Oct. 17, 2020. Chatfield has been accused of sexually assaulting his sister-in-law beginning when she was 15. He admits to an affair with her but said through his attorney it did not begin until she was an adult.

"But that isn't how we've generally understood the Legislature's power," he said. "Everyone understands that the Legislature has the power to change the system for choosing electors — in advance."

State lawmakers could, for example, for the 2024 election decide that electors will be chosen by lottery or from the first 16 names in the phone book, Primus said. 

"For the most part, the Legislature can make whatever system it wants," he said. "But once the Legislature has directed that, for this election, the manner of appointment of the electors is by a vote of the people of Michigan, and the people of Michigan have voted ... for the Legislature to try to undo it at that point would just be fundamentally antithetical to how our democracy works, and I'm glad the Legislature seems to know it."

Bob Sedler, a Wayne State University constitutional law professor, agreed there is no way under state law for lawmakers to meddle in the electors’ process at this point.

“Strictly speaking, if you voted for Joe Biden, you are voting for electors who are pledged to vote for Joe Biden,” Sedler said. “This is just simply one of these wild things that are thrown out. It’s not going to happen.”

Not only is Michigan law clear on the matter, prior Supreme Court rulings have upheld the rights of the voters and electors in the presidential election, he said.

“In today’s world, where so many people can talk, where you have 24/7 social media, so much can be said, but in the end, officials will follow the law,” Sedler said.