Ahead of Nov. 8 election, Nessel's office says officials who violate 'clear legal duty' risk removal

Lansing — Attorney General Dana Nessel's office issued a letter this week, saying state appointees who go against a "clear legal duty" might risk losing their positions, a likely warning to members of the board in charge of certifying Michigan elections.

Christina Grossi, the Democratic attorney general's chief deputy, authored the message, which was dated Tuesday, three weeks before the Nov. 8 midterm vote. After a wave of new Republican appointments to county canvassing boards across Michigan, there have been concerns among some Democrats about a possible attempt to block certification of the outcome if GOP candidates are unsuccessful.

" ...(A) state officer holding an elective or appointive position who intentionally takes action other than the action required by a clear legal duty, may also need to be concerned with potential suspension or removal from office," Grossi wrote.

The letter was in response to a Sept. 27 request from state Sen. Jeremy Moss, D-Southfied. The Democratic lawmaker's request was first flagged by FOIA Services Michigan, a Lansing firm that tracks public records requests.

Moss cited the actions of two Republican members of the Board of State Canvassers, who initially refused on Aug. 31 to certify proposals focused abortion rights and voting rights to be placed on Nov. 8 ballots. The Michigan Supreme Court eventually ordered the four-member panel to put the proposals on the ballot. The Bureau of Elections had advised the canvassers that both proposals' supporters gathered enough valid petition signatures to make the November ballot.

Tony Daunt, one of two Republican members of the Board of State Canvassers, said the request from Moss and "the lack of a robust response in defense of the individuals serving on this board, and countless others, by Dana Nessel’s office, is a particularly thuggish attempt at weaponizing the powers of government against people who have agreed to serve their state."

"I sincerely hope that this inappropriate and chilling attempt at intimidation is seen for what it is and rejected by people of all political stripes across the state," Daunt said.

Moss asked Nessel's office for an opinion on whether board members who go against their clear legal duty could face civil penalties or lose the representation of taxpayer-funded lawyers. Nessel's team responded with an informational letter on Tuesday.

In an interview, Moss said he wanted to understand the potential ramifications if a member of the Board of State Canvassers goes "rogue."

"We have an important election coming up," Moss said. "We have seen some really shady behavior from board of canvassers members.”

On Nov. 8, voters will choose a governor, secretary of state and attorney general and pick candidates to fill every seat in the state Legislature.

In response to Moss, Grossi said a member of a state board who doesn't act in conformity with the advice from the Attorney General's office on their "clear legal duty" might be refused representation in civil litigation and could lose governmental immunity in civil lawsuits.

Democratic Gov. Gretchen Whitmer has the constitutional authority to "remove or suspend from office for gross neglect of duty or for corrupt conduct in office" any state officer, except legislative or judicial officers, Grossi noted. Grossi cited a past court decision, saying it is corrupt for an officer to "purposely" violate the duties of their office.

Since the November 2020 election, former President Donald Trump has maintained unproven claims that fraud caused him to lose in Michigan. Democrat Joe Biden won the state by 154,000 votes or 3 percentage points, an outcome that was upheld by a series of court rulings, more than 200 audits and an investigation by the Republican-controlled state Senate Oversight Committee.

In 2020, the Board of State Canvassers voted 3-0 to certify Michigan's November election. One Republican member, Norm Shinkle, abstained from voting, and the other, Aaron Van Langevelde cast the pivotal vote to certify. Both Shinkle and Van Langevelde are no longer on the board.

At the local level in November 2020, the two Republican canvassers in Wayne County initially declined to certify the results, citing a high rate of out-of-balance precincts in Detroit, meaning the voter totals and ballot totals didn't match. However, later in the evening, the GOP members changed course and signed off on the tallies.

In October 2021, The Detroit News first reported that Republican Party leaders across the battleground state had quietly worked to replace incumbent county canvassing officials with newcomers. The actions spurred Democratic concerns that the new canvassers will refuse to approve future results or use their positions to interfere in the process.

In 2006, the Michigan Court of Appeals issued an order directing two Democratic members of the Board of State Canvassers to pay a fine or face contempt charges after refusing to put an anti-affirmative action measure on the November ballot, according to the Associated Press.