DETROIT – After a night of dueling decisions from the state and federal courts, a federal judge could decide Wednesday to end Michigan's presidential recount.
Live stream: Michigan Board of Canvassers meeting
The U.S. 6th Circuit Court of Appeals upheld the federal judge's order to continue the hand recount, but the Michigan Court of Appeals rejected the recount process. The feds will have to follow what the Michigan Court of Appeals says. That means the recount could be stopped dead in its tracks.
At 10:30 a.m. Wednesday, U.S. District Court Judge Mark Goldsmith began a hearing to reconsider the temporary restraining order he issued Sunday night to accelerate the presidential recount that Jill Stein requested. Goldsmith could decide whether to end the recount. Stein's camps said they would appeal to the state's Supreme Court.
Goldsmith said Wednesday he will give a written ruling on dissolving the temporary restraining order he issued Sunday.
State law in Michigan requires an "aggrieved" party to file a recount. Under state law, Green Party presidential candidate Stein is not considered aggrieved. She filed the recount, but she has no standing to force such a recount. Attorney General Bill Schuette discussed this law on Tuesday -- read here.
From the federal court filing (view here) on Tuesday:
The Michigan Court of Appeals determined conclusively that candidate Jill Stein is not an "aggrieved" candidate entitled to a recount under Michigan law. And the Sixth Circuit determined conclusively that whether Plaintiffs are entitled to a recount is a question of state law, to which it expects this Court to defer. 6th Cir. Order at 8. This Court is precluded under the law-of-the-case doctrine from reexamining that issue.The Sixth Circuit throughout its order emphasized that it is for the Michigan courts, and not this Court, to determine whether Stein is an “aggrieved” candidate entitled to a recount under Michigan law. The Sixth Circuit expressly held that this question is “best left to the Michigan courts at this stage."
The state court noted that Stein got 1 percent of the vote and has no chance of catching Republican Donald Trump, who narrowly defeated Hillary Clinton in the state. Trump won the state's 16 electoral votes by 10,704 votes. He is the first Republican presidential nominee to win Michigan since 1988.
Meanwhile, ballots are being recounted in Oakland, Macomb and Wayne counties. As long as the recount continues, county clerks are scrambling to get the job done by Dec. 13.
VIEW: Michigan recount schedule by county
Wednesday's Board of Canvassers meeting is schedule to begin at 9:30 a.m. Here's what's on the agenda:
- Consideration of meeting minutes for approval
- Resolution of any objections to the recount petition
- Resolution of any other recount matters presented for the Board's consideration
- Such other and further business as may be properly presented to the Board
Local 4's Rod Meloni is in the Federal Courthouse providing updates to the hearing:
Good Morning. In the Federal Courthouse in Downtown Detroit where District Judge Mark Goldsmith will hold a hearing on the MI vote recount
— Rod Meloni (@RodMeloni) December 7, 2016
Judge Goldsmith has taken the bench. Up first is John Bursch MI Solicitor General pleading Attorney General Bill Schuette's position.
— Rod Meloni (@RodMeloni) December 7, 2016
Bursch: "The recount doesn't exist."
— Rod Meloni (@RodMeloni) December 7, 2016
This is to reconsider the Temporary Restraining Order issued to accelerate the presidential recount requested by the Green Party.
— Rod Meloni (@RodMeloni) December 7, 2016
Bursch is arguing that the federal courts usually and should be deferential to the state election law.
— Rod Meloni (@RodMeloni) December 7, 2016
Bursch: The Florida Supreme Court took a "throw out the baby with the bath water" approach in the Bush v. Gore.
— Rod Meloni (@RodMeloni) December 7, 2016
Bursch: The Florida Supreme Court "created a new chapter of election law that did not exist." He argues MI law should be followed here.
— Rod Meloni (@RodMeloni) December 7, 2016
Bursch argues a candidate need not have proof for fraud or mistake. But the way MI law reads an aggrieved candidate needs proof.
— Rod Meloni (@RodMeloni) December 7, 2016
The judge is asking Bursch whether the Board of Canvassers is required to investigate such cases. Bursch says yes.
— Rod Meloni (@RodMeloni) December 7, 2016
Judge says he is not buying Bursch's argument regarding his interpretation of "aggrieved" and "fraud and mistake" as it pertains to proof.
— Rod Meloni (@RodMeloni) December 7, 2016
Bursch reiterates his continual argument there are millions of dollars in cost associated to the recount when a recount won't change result.
— Rod Meloni (@RodMeloni) December 7, 2016
Judge wants to know why the legislature wrote the statute this way. Bursch answers aggrieved means a legal injury, that result had to change
— Rod Meloni (@RodMeloni) December 7, 2016
An amendment to the Bursch Bio. He is representing Attorney General Bill Schuette but he is the FORMER Michigan Solicitor General.
— Rod Meloni (@RodMeloni) December 7, 2016
Bursch is now in private practice and left government service in 2013
— Rod Meloni (@RodMeloni) December 7, 2016
Bursch said in conclusion of his argument Green Party Presidential Candidate Jill Stein "is in the wrong forum to ask for this relief."
— Rod Meloni (@RodMeloni) December 7, 2016
Up now is Gary Gordon representing GOP. He echoes Bursch's case. He is asking yet again to have TRO dissolved.
— Rod Meloni (@RodMeloni) December 7, 2016
Gordon says "were are not here to determine theoretical question. We do recalls to see if results should be changed."
— Rod Meloni (@RodMeloni) December 7, 2016
Gordon: "There is no purpose to this." The purpose of recalls is to see whether the election results would change.
— Rod Meloni (@RodMeloni) December 7, 2016
Judge wants to see case law dealing with the question of what recalls or for. Gordon says there is none.
— Rod Meloni (@RodMeloni) December 7, 2016
Gordon "aggrieved=to suffer harm. A candidate who finished 4th w\ 1% of the vote, outvoted by 2M is not aggrieved in any sense of the word."
— Rod Meloni (@RodMeloni) December 7, 2016
Gordon has concluded. Now up is attorney Denise Barton. She asked for the dissolved TRO as well. Stein lawyers up now.
— Rod Meloni (@RodMeloni) December 7, 2016
Stein lawyer points out Dr. Stein is not asking for recount so she could show she could win. She could not.
— Rod Meloni (@RodMeloni) December 7, 2016
Judge asks how Dr. Stein is an "aggrieved party". Lawyer says Dr. Stein participated in an election that may have been altered by fraud.
— Rod Meloni (@RodMeloni) December 7, 2016
Stein lawyer has made it a practice to accept recount requests without the allegation of aggrieve-ment
— Rod Meloni (@RodMeloni) December 7, 2016
Judge asks about the high costs of the recount. Stein lawyer says the state law requires the state to pick up those costs.
— Rod Meloni (@RodMeloni) December 7, 2016
Stein lawyer: the state law allows a recount to verify the integrity of the election.
— Rod Meloni (@RodMeloni) December 7, 2016
Judge wants to know why the Stein campaign is not asking for a stay in the Michigan Supreme Court.
— Rod Meloni (@RodMeloni) December 7, 2016
Stein lawyer believed it wasn't in effect because it was not given immediate effect. Judge said it did. Stein lawyer says they will appeal.
— Rod Meloni (@RodMeloni) December 7, 2016
Judge wants to know whether Stein campaign had a federal right to recount, he asks "no court says that right?" Stein lawyer says yes.
— Rod Meloni (@RodMeloni) December 7, 2016
Stein lawyer: in the MI election "wholesale fraud may have ocurred" and says there is no way of knowing if fraud occurred without recount.
— Rod Meloni (@RodMeloni) December 7, 2016
Had to go do a noon live shot on air. Back in the hearing room. John Pirich, well known Michigan election lawyer gave recount statistics
— Rod Meloni (@RodMeloni) December 7, 2016
Pirich said after two days of vote counting roughly 66 votes have changed in the process. He was discussing Oakland And Wayne Counties.
— Rod Meloni (@RodMeloni) December 7, 2016
Dr. Stein lawyers are now asking even if they lose here today they intend to appeal.
— Rod Meloni (@RodMeloni) December 7, 2016
Dr. Stein lawyer says the TRO must stay in place to make certain the recount happens by the December 13th deadline.
— Rod Meloni (@RodMeloni) December 7, 2016
Bursch also said Dr. Stein doesn't have standing to represent Hillary Clinton's interest in this case. He asks for Stein to post $5 Million
— Rod Meloni (@RodMeloni) December 7, 2016
That $5 Million is for a bond to pay for the entire recount. Stein lawyer says it is a number pulled from air.
— Rod Meloni (@RodMeloni) December 7, 2016
Judge Goldsmith wants to know Dr. Stein's position on a bond. Lawyer says she wants a hearing to decide a number, but wants no bond.
— Rod Meloni (@RodMeloni) December 7, 2016
Judge Goldsmith will recess and will be 20 minutes. 12:45 he will give word on whether he will issue a bench ruling or a written order.
— Rod Meloni (@RodMeloni) December 7, 2016
Just for the record, Dr. Stein's lawyer is Hayley Horowitz, attorney from the Emery Celli Brinckerhoff & Abady law firm in New York City.
— Rod Meloni (@RodMeloni) December 7, 2016
Judge Goldsmith to give a written ruling on dissolving the Temporary Restraining Order he issued Sunday in MI recount case later today.
— Rod Meloni (@RodMeloni) December 7, 2016
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