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Michigan Appeals Court Order to Halt Recount Sets Up Conflict with Federal Courts

Michigan Appeals Court Order to Halt Recount Sets Up Conflict with Federal Courts

Michigan Court of Appeals orders a halt to the recount the 6th circuit demanded

Failed Green Party presidential candidate Jill Stein sued for a recount in Michigan. That suit has created tension between Michigan’s state government and the federal government.

Tuesday evening, Michigan’s Court of Appeals ordered a halt to the recount, saying Stein was not an aggrieved candidate who would benefit from a recount. At the same time, the 6th Circuit ruled the must proceed.

From Michigan’s Attorney General:

The Detroit Free Press reported:

The Michigan Court of Appeals ruled Tuesday that the Board of State Canvassers never should have allowed a recount requested by Green Party candidate Jill Stein to proceed, because she has no chance to overturn the result of the presidential election in her favor and is not an aggrieved candidate.

The panel ordered the board to “reject the Nov. 30, 2016 petition of candidate Stein that precipitated the current recount process.”

The ruling came out almost simultaneously with a 2-1 order from the U.S. 6th Circuit Court of Appeals which upheld U.S. District Judge Mark Goldsmith’s Monday order that the recount must get under way at noon that day, which it did.

The combined effect of the two rulings appears to set up further court proceedings in front of Goldsmith and the Michigan Republican Party has already filed for another federal hearing.

…Andrea Bitely, a spokeswoman for Schuette, said the Michigan Court of Appeals said “there is no conflict between” its order and the federal district court’s temporary restraining order, so the recount should end immediately.

However, “to ensure clarity for Michigan taxpayers, (and as recommended in the 6th Circuit’s opinion issued this evening), the Attorney General is now filing in the federal district court a motion to dissolve the temporary restraining order,” Bitely said.

Mark Brewer, an attorney for Stein, said the U.S. 6th Circuit Court of Appeals refused to stay the Republicans’ request to stop the recount, so it will continue until all the parties can get back to federal court to plead their case, again, before Goldsmith.

The state panel said that to qualify as “aggrieved,” Stein “must be able to allege a good faith belief that but for mistake or fraud,” she would have had a reasonable chance of winning.”

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Well, this is interesting.

What we have here is a dispute which is no longer between Jill Stein, a candidate for President in Michigan, and the Republican party of Michigan, but a dispute between the State of Michigan and the United States of American. Under the Constitution of the United States, the Supreme Court of the United States of America is the court of original jurisdiction for any dispute between a member state and the Federal Government. And, as Jill Stein is obviously NOT an aggrieved party and there is NO possible way that the recount will change the fact that she lost the election, there is no logical reason to continue the recount.

Stay tuned for further developments.

    sidebar in reply to Mac45. | December 7, 2016 at 1:31 pm

    Sounds like Judge Goldsmith is one of those new age judges. I doubt the United States District Court has jurisdiction to rule on a controversy concerning electors. 3 U.S.C. §5 provides that controversies concerning electors must be resolved in a manner provided for by the State Legislature.

    If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

      Milhouse in reply to sidebar. | December 7, 2016 at 4:05 pm

      Federal courts definitely do have jurisdiction. That’s been established for at least 70 years. Yes, controversies concerning electors must be resolved in a manner provided for by the State Legislature. That does not make it a state matter. It means the rules the federal courts must apply are those made by the state legislature.

For those of us who are not lawyers, this seems now that this has become a pissing match between the state of Michigan committed to following state statutes and out of control federal liberal judges who don’t give a damn about the rule of law. This is becoming a farce and I would say this confirms why so many voted for Trump because of games played and powerful people people making up laws for the little people and a different set of laws for them.

    Rick in reply to natdj. | December 6, 2016 at 10:58 pm

    You are correct. Obama has seeded the federal judiciary with flaming liberal activists, and he was assisted in that goal by Reid’s use of the nuclear option.

    Gremlin1974 in reply to natdj. | December 6, 2016 at 11:27 pm

    I disagree because the federal court order stated that the recount must start by noon on monday, however the state court order effectively says there is no recount and should never have been, so there technically is no recount to start, or for the federal court order to apply to.

If they want this fight, they should understand they are picking up the tab.

What were the grounds for the US District court to order the recounts?

    Gremlin1974 in reply to RodFC. | December 6, 2016 at 11:28 pm

    They didn’t order a recount, they ordered that a 2 business day delay was not constitutional, so the state order basically says the recount should never have started so there doesn’t seem to be a conflict to me.

    amatuerwrangler in reply to RodFC. | December 6, 2016 at 11:42 pm

    Good question. According to the Constitution, the feds don’t come into the game until the states have selected their electors, the selectors meet and vote, and submit the votes to the President of the Senate.

    Specifically, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives …”[Art 2, Sec 1, in pertinent part]; so it looks like the states set the rules for the selection of their Electors. And any dispute over that selection would be in the jurisdiction of the state’s courts. The 12th Amendment does not modify this portion of Are 2, Sec 1.

    Is there some intervening law or amendment that pushes this into the federal judicial system..?

      The question before the federal court is who are the electors selected according to the state legislature’s directions. That is a federal question, not a state question, even though it concerns interpreting the state legislature’s directions. (This was one of the issues in Bush v Gore)

        amatuerwrangler in reply to Milhouse. | December 7, 2016 at 9:51 am

        I disagree. The Constitution gives the selection of the Electors to the state, to do so as they see fit. Art 2, Sec 1, does state who the Electors cannot be (the actual Senators, Representatives, state government executives). Who is selected is the state’s purview, and the state’s adherence to the established selection process is the state’s courts to determine, should there be a question.

          You can disagree all you like, but you’ll be wrong. The selection of electors is not a state question, it is a federal question. This is settled law. The constitution does not give it to the states, it specifically says that each state must appoint its electors as that state’s legislature shall direct. The legislature, in directing how electors are chosen, is fulfilling a federal function, not a state one. It doesn’t matter what the state’s law or constitution might say, or what its courts might say; it is simply not a matter for them.

          “While presidential electors are not officers or agents of the federal government (In re Green, 134 U.S. 377, 379, 10 S.Ct. 586), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States.” — Burroughs v USA, 1934

          Just to correct the post above.The Supreme Court has held that the selection of electors is a plenary power of the State Legislature. Except Article II Section I of the Constitution reads “Each state shall appoint, in such manner as the Legislature thereof may direct”

          3 U.S.C. §5 further provides that controversies concerning the selection of electors shall be governed by State Law. Federal Courts are not competent to decide matter of State Law.

          Now the counting of electoral votes is exclusively the province of the United States Congress. The counting is a Federal question. The Congress has the power to correct “irregular” (e.g. miscast) electoral votes see 3 U.S.C. §15

          the selection of electors is a plenary power of the State Legislature

          Yes, of course it is. Nobody disputes that. But that does not make it a mater for the state. Appointing electors is a federal function, not a state one. When the state legislature decides how they shall be chosen it is acting as a federal agent, subject to federal law, not to state law. And any dispute about who are the electors chosen as the state legislature directed is for the federal courts, not the state courts.

        sidebar in reply to Milhouse. | December 7, 2016 at 5:49 pm

        Sir (“Milhouse”) there is little point on doubling down on wrong. United States Court’s have very limited jurisdiction in controversies regarding the selection of electors. A claim would have to involve violation of the Constitution or a law (such as the Civil Rights Act) which directly impacts the Constitution. Such a claim would have to be substantial to meet the rather strict Twombly and Iqbal pleading standards.

          Milhouse in reply to sidebar. | December 7, 2016 at 8:40 pm

          You are wrong. The selection of electors directly impacts the constitution, because it is a federal constitutional function. See Buroughs v USA, which I cited above, and also Bush v Gore. It is the federal constitution that gives state legislatures the duty of directing how their state’s electors are to be chosen. In doing so they are fulfilling a federal function and thus subject only to federal law, not to the laws or constitutions of their own respective states. For instance if Californians were to amend their constitution telling the legislature how to appoint the electors, that provision would have no force.

Oh, for chrissakes Michigan…just give her a participation ribbon and tell her everyone’s a winner!

    We have voter ID. We have ballots which we blacken the circle of the candidate of our choice which is then fed into a tabulating machine. No internet at all for our votes.

    Makes the Russian interference really legendary. (Sarc off)

    The real anomalies are mostly in Detroit and other large democrat run areas. If the recount continues I’d actually expect President Trump to end up with a higher total.
    For instance, Southfield, in Oakland County, had two precincts with over 100% voter turnout. And they weren’t the only ones.
    If the recount continues, I hope the State Police get to investigate those overages. Dems are crooks.

      4fun in reply to 4fun. | December 7, 2016 at 5:14 pm

      ETA, I think the machines are called Scantrons.
      But I like the idea of a Participation Trophy, might send that idea on to our AG and ask him to do it as a publicity stunt. Dem heads will explode.

Phenomenal – he can barely keep a straight face as he basically says, “If the ballot boxes appear to be tampered with and there is evidence of election rigging, then the ballots cannot be recounted.” OMG! WTF?!

    Vancomycin in reply to backbonebill. | December 7, 2016 at 8:01 am

    Because if the ballots have been tampered with, they don’t know which ones are genuine and which ones are not. So they go with the assumption that the original count was correct. This prevents stuffing the ballot box and then demanding a recount.

    ecreegan in reply to backbonebill. | December 7, 2016 at 11:33 am

    There is no identifying information on the ballots, so once the ballot box has been tampered with you do not know if the votes in that box are what was in that box on election night, therefore you cannot recount them.

    You can’t be sure the original count is good, but you can be sure that any recount is bad, so you go with the original count.

    It’s an imperfect rule, but what’s a better alternative?

      Milhouse in reply to ecreegan. | December 7, 2016 at 4:11 pm

      A better alternative might be not to count any votes from that precinct, since there’s no reason to suppose that the original count was any good.

        ecreegan in reply to Milhouse. | December 7, 2016 at 5:24 pm

        No. Then all you’d have to do to rig recounts is tamper with the boxes – doesn’t matter how – in some precincts which went strongly for the candidate you wish to see lose, and get those precincts thrown out.

          Milhouse in reply to ecreegan. | December 7, 2016 at 8:45 pm

          And in the reverse case all you have to do is tamper with the boxes in precincts that went for the candidate you want to see win. In fact you would do so anyway, not to prevent recounts but to achieve the result you wanted in the first place. That it would also prevent recounts, and thus entrench your chicanery, would be a bonus. You’re writing a gold-edged invitation for fraud.

          Beside which, how would you tamper with boxes that didn’t go your way? Such boxes would be unlikely to be under your control, especially if you’re the sort of person who’s prone to tampering. You’d do all your tampering in the initial count, so those boxes would naturally come out your way.

Hm! Well, that’s interesting.

Are we witnessing the future tactics of the Demorat party? Imagine if the House was in Demo hands and they could foul up/delay the electoral vote so that neither candidate would have 270 votes on Dec 19, then it would go the House for the decision. Anytime in the past, I would have considered this to be a liberal fantasy but not anymore. This is a crowd that has no ethics or sense of patriotism and as we have seen with hillary’s campaign, will do or say anything to win.

    Gremlin1974 in reply to inspectorudy. | December 6, 2016 at 11:30 pm

    I think the SCOTUS decision on the Gore Bush recount in florida deals with that. But I could be wrong.

    Milhouse in reply to inspectorudy. | December 6, 2016 at 11:48 pm

    They wouldn’t be able to do it. There just isn’t any way that they could achieve such a result, so long as there is no genuine doubt about the correct result. If by some astounding balls-up the Wisconsin recount is not complete by the 13th, the governor will just certify the original result (citing the need to get in under the congressional “safe harbor” clause), and on the 19th the R electors will vote.

    Of course if there really were a genuine doubt about the result then they would have every moral and legal right to as thorough and as long a recount as was needed, even if it took until late on the evening of the 19th. If it still wasn’t over by then, both sets of would-be electors could vote, and when the count was complete the correct set could send their results in.

    Probably. One video I saw pointed out that this might not be a tactic for “winning”, as we understand it, but by delaying the reporting until past the 19DEC deadline.

    Basically, it goes like this: Using the original reporting, Hillary won the popular vote by ~2 million votes, but Trump won the electoral votes. The recount basically “freezes” the electoral votes of the states that are recounting; they’re out-of-play until the recount is completed. If they’re still “frozen” at the deadline, then Trump might not have the 270 he needs to clinch the election. Sure, the House is sure to go his way and the recount eventually will, too, but then the Dems get four years to say that he wasn’t “elected”, he was “selected”. It adds an air of illegitimacy to his entire Presidency.

    This isn’t a “new” tactic, either. They did it with George W. Bush in 2000, when Al Gore demanded recounts. Sure, the numbers eventually went Bush’s way, but the lingering question tarnished his whole first term.

      Milhouse in reply to Archer. | December 7, 2016 at 12:23 pm

      That a claim is made on a video doesn’t give it any added credibility. This idea is without any foundation. These recounts can’t prevent the states’ electors from voting on the 19th, unless it is clear by the 13th that they have uncovered serious problems with the original count, in which case they should have that effect. If Clinton really did win the states in question then she should become president; surely nobody disputes that. But she didn’t, and nobody really thinks she did. The purpose of the recount is merely to confirm that, because if nobody ever looks for tampered-with machines then of course nobody will ever find them. If no evidence of serious problems is found by the 13th then the governors, at least of MI and WI, will certify the R slate of electors, even if the recount has not yet finished.

Oh brother, now an idiot attorney here in my home state of Florida is suing for a recount. What is sad is I know one of the plaintiffs and quite a few of the electors who are also being sued. What the attorney actually admits is that since is a late filing the respondents do not have to respond by the time the Electoral College meets to vote. What a freaking waste.

This is going to piss voters off to the democrat party and liberalism. I would not be surprised that every state Trump won that there will be an ambulance chasing atoeney suing for a recount!

Keep on doing this guys and we may actually see 60 Republican senators in 2018, 250 House members and more Reliblican governors. This is not a winning plan but hey go for it.

    Old0311 in reply to natdj. | December 7, 2016 at 10:53 am

    The Florida bar exam must be very easy. They have this yoyo and the Zimmerman prosecutors. I know everyone can’t be a Disney character at Disney World, but gee whiz.

Just when things were starting to get interesting.

Major voting irregularities in 2/3 of Wayne county precincts. They are blaming jamming machines for double counting votes.

Of course we all know that what really happens is that Wayne county is where Democrats manufacture their votes for the local machine politicians. The machines are getting blamed for fraud.

They know… shut it down!

thalesofmiletus | December 7, 2016 at 1:19 am

The only thing I don’t like about Jill Stein scamming 10 million dollars for a recount is that I didn’t think of it first.

holdingmynose | December 7, 2016 at 7:49 am

Remember back during the early GOP primaries when there were 17 contenders who the snarky Left referred to as the “clown car”? Now who looks like a clown?

More liberal power seeking. This is just the natural evolution of the trail blazed by Gore.

This contrasts neatly with the wisdom and honor of Nixon. Hillary was fired from the Watergate hearings for being too partisan by the democrats of the time. Now others outdo her extremism.

    Vancomycin in reply to Sneaky Pete. | December 7, 2016 at 9:11 am

    It reads to me like the 6th circuit decision (IANAL) says that if the MI state courts deny a recount, the district court ought to say “ok, this is over with now”. But who knows.

      Petrushka in reply to Vancomycin. | December 7, 2016 at 10:58 am

      Yes, the way I read it, the decision is narrowly about the waiting period. If the recount is denied there is no waiting period.

        Gremlin1974 in reply to Petrushka. | December 7, 2016 at 3:22 pm

        As far as I know the only question before the court was if they delay of 2 days was ok. No other question.

        So I don’t know where all these people are saying that there is a federal court order for Michigan to recount as far as I can tell there isn’t there is the order linked above that says it shouldn’t be delayed by 2 days.

        So if the state court orders the recount to stop because it should never have been authorized, which is what they did, then there is no conflict with the federal court order because in effect there is no recount to start.

        But then again that is probably far to straightforward for legal decisions.
Sneaky Pete posted the link above (credit to sneaky)

The three judges
Clay – a clinton appointee
Donald – an obama appointee (
Mckeague – a Bush 43 appointee who was in dissent.

ScottTheEngineer | December 7, 2016 at 1:06 pm

I voted in Michigan. My ballot had a registration number that was assigned to me and provided when I showed my I.D. It’s a paper ballot and you fill in the circle. You remove the tab from the top when your done and insert it into the ballot machine that counts the votes and the number of ballots. If the actual number of ballots don’t match the count then that means a ballot was ran through the machine twice. Its actually a good system that’s verifiable. My understanding is that all of Michigan uses the same system but I’ve only ever voted in one place so I don’t know for sure.

    Verifiable means that you can catch fraud, which is what seems to have happened.

    Gremlin1974 in reply to ScottTheEngineer. | December 7, 2016 at 3:25 pm

    Yea, the problem they are having in the areas in question is machines that were “broken”.

    Funny, we use the same system here and our machines tend to be very robust. Also the fill in the circle tech is very reliable we have been using it in standardized testing since I was in grade school at least 35 years ago.

Conclusion : For the foregoing reasons, we hold that the district court did not abuse its discretion by issuing a temporary restraining order halting operation of the waiting period law. We therefore AFFIRM the district court’s temporary restraining order. 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.

Appears that the court only addressed the restraining order. The court appears that it acknowledges State and the State courts have jurisdiction to determine if the recount itself is proper.

“A better alternative might be not to count any votes from that precinct”

No, that gets you in trouble with equal protection under the law.