The Board of State Canvassers must reject the recount petition of a candidate who cannot allege a good faith belief that but for mistake or fraud, the candidate would have had a reasonable chance of winning the election, said the Michigan Court of Appeals in Attorney General and Donald J. Trump v. Board of State Canvassers and Jill Stein (Nos. 335947 and 335958). In other words, Green Party candidate Jill Stein’s recount bid never should have been allowed to proceed.
The court’s order did not stop the ongoing recount. Further proceedings in front of the United States District Court determined whether the recount actually continued.
The Board of State Canvassers (the Board) certified the results of the presidential election in Michigan on November 28, 2016. Dr. Stein’s vote total was 51,463 votes out of nearly 4.8 million, or approximately 1.07 percent. Two days after the results were certified, Dr. Stein petitioned the Board for a manual recount of votes, alleging that she was “aggrieved on account of fraud or mistake.” After an objection by Mr. Trump and a response from Dr. Stein, the Board deadlocked, voting 2-2 on whether to approve the recount petition. By rule, the deadlock resulted in the petition going forward. By federal court order, the recount began on December 7, 2016. The Attorney General and Mr. Trump subsequently filed a petition to the Michigan Court of Appeals for a writ of mandamus.
A candidate may petition for a recount by meeting all of the requirements of MCL 168.879(1). Under MCL 168.879(1)(b), the candidate must be “aggrieved on account of fraud or mistake in the canvass of the votes[.]” Interpreting the term “aggrieved” for the first time, the court opened its dictionary, and found that the candidate must allege “a loss or injury.” In the context of an election, the court ruled, the candidate must therefore 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. Here, Dr. Stein’s and Mr. Trump’s vote totals were apart by 2,228,080, meaning that no change in the ballot count is reasonably likely to change the result.
The Court then had to determine whether the Board had a clear legal duty to reject Dr. Stein’s petition, one of the requirements for a writ of mandamus. The court held that since the statute conditions a candidate’s right to petition for a recount on meeting all of the statutory requirements, the Board must reject petitions that do not.
The court thus granted the requests of the Attorney General and President-Elect Trump and directed the Board to “reject the November 30, 2016 petition of candidate Stein that precipitated the current recount process.”
