AG opinion: State canvassers could face legal action, suspension if they don’t perform legal duties

Board of State Canvassers meeting, August 19. 2022 | Screenshot

By Kyle Davidson, Michigan Advance

Following multiple deadlocks from the Michigan State Board of Canvassers (BSC), state Sen. Jeremy Moss (D-Southfield) consulted with the Department of the Attorney General about potential legal consequences if a board member fails to perform their duties. 

In Michigan, the Board of Canvassers is responsible for certifying election results, as well as certifying petitions for ballot proposals and candidates seeking state or federal office. The four-member BSC is split evenly with two Democrats and two Republicans.

In November 2020, Norm Shinkle, then a GOP member of the board, abstained from voting to certify presidential election results when President Joe Biden defeated former President Donald Trump in Michigan by more than 154,000 votes. Shinkle is now running against state Rep. Julie Brixie (D-Meridian Twp.) in the 73rd House District.

The results were certified on a 3-0 vote.

There’s also been a history of deadlocks in recent months, the board was also ordered by the Michigan Supreme Court to certify two proposals, after it deadlocked on whether the Promote the Vote (Proposal 2) and Reproductive Freedom For All (Proposal 3) measures should be included on the ballot.

In each case, the Supreme Court found that two members of the board had failed to perform their duty. While the board’s Democratic members voted in support of certifying both proposals, their Republican counterparts voted against certification. The court ordered both proposals on the Nov. 8 ballot.

The BSC also has deadlocked on other recent issues, such as putting five GOP gubernatorial candidates on the Aug. 2 ballot who did not turn in enough legal signatures and were caught up in a fraud scandal. Last year, the board also had a split decision on certifying the Unlock Michigan ballot measure taking away some of the governor’s emergency powers.

“The duties of the Board of State Canvassers are clearly defined and prescribed in statute, but in just the last few years, individual members have failed to perform their ministerial responsibilities, including refusing to certify the 2020 election results or denying eligible 2022 proposals placement on the ballot,” Moss said in a statement. 

“This concerning pattern of behavior begs the question: what are the consequences for obstructing the will of Michigan voters?”

In a letter, Moss asked the attorney general if members of the board would retain immunity from civil action if they fail or refuse to perform their certification duties, and if they would receive representation from the Department of Attorney General if they faced legal action related to that duty. 

Christina M. Grossi, chief deputy of the department of the attorney general, responded to Moss’s inquiry. In her letter, Grossi outlined the board members’ fiduciary obligation which requires officials to practice “disinterested conduct,” meaning they may not act for their own benefit or at the expense of the people they serve.  Sen. Jeremy Moss | Susan J. Demas

If a public officer has been advised of their duty to act and fails to do so, one implication is that their actions are not disinterested. Individuals refusing to carry out their legal duties due to personal motives will have violated their fiduciary obligation, and as a result, the attorney general may deny that individual representation from the department, Grossi said. 

These individuals could also lose their immunity from liability, and may face suspension or removal from their position by the Office of the Governor, Grossi said. 

Following the response from the Department of the Attorney General, Moss said in a statement: “Michigan voters deserve to know that when they sign a petition or cast a vote, their participation in our democracy is valued and properly recorded. Our electoral system cannot allow for rogue individuals to use their positions of authority to unlawfully disenfranchise any voters in our state.” 

Michigan Advance is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Michigan Advance maintains editorial independence. Contact Editor Susan Demas for questions: [email protected]. Follow Michigan Advance on Facebook and Twitter.