Michigan canvasser suit part of growing effort to preempt election deniers

• ACLU sues Michigan canvasser to ensure November election certification
• Robert Froman reportedly said he wouldn’t certify the 2024 election if it turned out in the same way as 2020, which he thinks was stolen. 
• The lawsuit is a rare preemptive move to head off a crisis after the November election — like the kind that happened in 2020.

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The American Civil Liberties Union of Michigan is suing a member of the Kalamazoo County Board of Canvassers, hoping a judge will declare that the man must certify the November election results, after a newspaper reported him saying that he might not.

The suit is part of a growing legal effort around the country to ensure that the November election is certified on time by making it clear to any potentially defiant officials that they’re not allowed to refuse to certify, and that they could face charges or penalties if they do. 

The ACLU suit follows a Detroit News report that Robert Froman, a 73-year-old Republican canvasser in Kalamazoo County, said he would not certify the 2024 presidential election if it went the same way as the 2020 election, which he believed was stolen from former President Donald Trump. Trump lost Michigan by about 150,000 votes to Joe Biden.

The ACLU, representing two Kalamazoo County residents, is asking the court to declare that Froman is legally required to certify the election. State law already requires canvassers to certify elections within 14 days or face potential misdemeanor charges for "willful neglect of duty" and huge potential costs.

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Froman told Votebeat on Wednesday that he would certify the election and said his words were taken out of context. The Detroit News, in a letter included in the ACLU’s filing, stood by its reporting.

“I think this whole thing is kind of ridiculous,” Froman told Votebeat, arguing that it made no sense to sue him over something he hasn’t done. "I don't care about 2020. ... I just want to make sure everyone who walks into a precinct gets their vote counted."

Why would the ACLU sue preemptively?

It’s not unusual to sue over something that has not happened, although plaintiffs don’t often ask a judge for something as straightforward as declaring that someone must follow a law. 

Cases where a person or board is actually taken to court over certification are relatively rare, although officials and outside groups do threaten legal action. Lawsuits over mere threats of refusal to certify appear to be rarer still, and Froman’s case could be the first of its kind.

It makes sense in this case for the ACLU to file the suit preemptively, and in general for officials and advocates around the country to zero in on the legal obligations of canvassers, said Quinn Yeargain, a professor of law at Michigan State University.

Election officials acting proactively across the country now can help minimize problems after the election, Yeargain said. The goal is to keep people from trying to act outside of the prescribed duty of their job to protect the sanctity of elections. 

"It's an unfortunately necessary course of action that has been taken to respond to truly unnecessarily, highly egregious conduct” across the U.S., Yeargain said, referring to the string of certification battles since the 2020 election.

Before 2020, certifying an election was generally uneventful and took place behind the scenes after an election. But in Michigan and other states that year, Trump and his allies roiled the certification process by promoting unsubstantiated claims of voting irregularities and fraud. 

In Wayne County, the state’s most populous, two Republicans fought certification and were allegedly pressured by Trump himself to not certify. At the state level, a Republican initially refused to certify, putting Michigan’s certification in limbo until the other Republican canvasser voted to approve it, saying the board had “a duty to certify based on these returns.” 

The effort to reinforce the duty to certify is "a logical, rational response, based on what we've seen so far, seeking to prospectively guard against the further erosion of democratic norms," Yeargain said.

A 2022 law clarifies what canvassers do — and can’t do

Michigan’s laws make it clearer than many states that canvassers must certify elections based on vote totals presented to them. They are not allowed to investigate the election or question its legitimacy based on outside factors. If county canvassers don't certify an election, they're required to turn the results over to the Board of State Canvassers, who are then required to certify the election. And in that case, the county that didn't certify would have to pay for the state-level canvass, a cost that could be passed on to the individual canvassers.

A constitutional amendment adopted by the 2022 passage of Proposal 2 clarifies that only election officials — not canvassers — can audit elections. Proposal 2, which included a series of election reforms and was approved with nearly 60% of the vote, also requires canvassers to verify elections based only on compiled vote totals.

Officials saw an example of what a failure to certify could look like in May, when Delta County canvassers initially refused to certify a recall election after advocates called for a forensic audit despite no evidence of irregularities. After pressure from the state, canvassers did eventually certify the election.

Secretary of State Jocelyn Benson and Attorney General Dana Nessel used the incident as an opportunity to make clear that failing to certify would be a violation of a canvasser's duties, and involve civil and criminal charges as well as fees.

Other states are invoking similar laws to resolve or head off certification fights. In Arizona, a court forced a county board to certify its election results after it failed to do so by the state deadline in November 2022 under a similar statute. Two of those board members were then indicted for initially refusing to certify.

In Georgia, the state Democratic Party and the national party have sued to prevent the state election board from implementing new rules they say could prevent certification come November. Specifically, Democrats cite two new rules in their lawsuit as violations of the state’s requirement to certify: One that requires election officials to certify after conducting a "reasonable inquiry" without defining what that might be and another that appears to give county election boards the ability to investigate elections if vote totals are off. 

The rules were approved with support from State Election Board members whom Trump later praised by name at a rally.

In Michigan, the lawsuit against Froman seeks to have a judge declare that canvassers must abide by their constitutional duties and cannot "unlawfully foist his obligations onto members of the Board of State Canvassers.” A refusal to certify would violate Kalamazoo County residents’ right to vote, the suit says.

Phil Mayor, senior attorney for the ACLU of Michigan, said that the major goal of the suit was to prevent the politicization of the canvasser’s job, which he referred to as "the simple ministerial duty of grade school math": adding vote tallies together and confirming that the stated winner has the highest total. 

Refusing to certify comes with an immense financial cost that is unfair to taxpayers, he said, and sows doubt in the election that can have long-term consequences.

"Mr. Froman may have said the quiet part out loud, if his reported comments are true, but there's a very good reason to believe that there are other canvassers who feel the same way but aren't saying the quiet part out loud," Mayor said. "This lawsuit ought to be a message to them that they too will be held accountable if they refuse to do their duty."

Nathaniel Persily, a Stanford law professor who specializes in election law, said it wasn’t clear if the suit would achieve its stated goal of getting a judge to remind Froman of the requirements of being a canvasser. But legal success isn’t the only thing on the line, he said.

“They want to put officials in Michigan and elsewhere on notice that there will be legal consequences for officials who fail to perform their duties required by law,” Persily said.

Disclosure: Reporter Hayley Harding was previously employed by The Detroit News.

Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at [email protected].