ACLU sues Kalamazoo County election official after certification comments

Polling station in East Lansing, Feb. 25, 2024 | Susan J. Demas

The ACLU of Michigan and the American Civil Liberties Union filed a lawsuit Tuesday against a member of the Kalamazoo Board of County Canvassers following comments he made that the organizations claim indicate his willingness to violate his oath of office and refuse to certify election results if he doesn’t agree with them.

The lawsuit , filed in Kalamazoo County Circuit Court, notes comments made by Robert Froman, one of four members of that county’s Board of Canvassers, to The Detroit News last month in which he said he “most definitely” believes the 2020 election was stolen from former President Donald Trump. When asked if he would certify the 2024 election if it unfolded the same way, Froman was reported to have replied, “No. And that’s why I’m there.”

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The ACLU says the comment, as well as other statements, indicates Froman’s unwillingness to certify the results of the 2024 election regardless of allegations or evidence of election fraud, which county canvassing boards are not empowered to investigate.

“The law could not be clearer. It is the ministerial, nondiscretionary duty of the members of a county board of canvassers to certify the presidential election based on the returns from the precincts, absent voter counting boards, and early voting sites,” states the lawsuit. “This legal obligation is not new. Since at least 1892, Michigan courts have held that canvassers cannot ‘go behind’ the returns and challenge the results based on allegations (or even evidence) of voter fraud. A failure to certify based on a canvasser’s belief or theory that the election was somehow ‘stolen’ would be flatly impermissible.”

The ACLU notes that in that same article Froman said he wasn’t going to do “anything that’s illegal,” but didn’t recognize that refusing to certify the election would, in fact, violate both the Michigan Constitution and a state statute that require county canvassers to certify election results within 14 days after the election based solely on the total number of votes reported from each location within their jurisdiction. The law does not allow them to withhold certification.

“We’re bringing this lawsuit because attacks on our democracy cannot stand,” said Theresa Lee, senior staff attorney with the ACLU’s Voting Rights Project. “It is critical the court make clear that county canvassers have a legal duty to certify the election based on the tabulated votes. That’s how democracy works.”

The ACLU says when it contacted Froman about his statements, he denied making them, but when prompted to correct the record, he reportedly refused to contact The Detroit News and request a retraction. For its part, the paper told the organization that it stands by its reporting. The ACLU says Froman also did not deny that he would refuse to certify an election result with which he did not agree.

“Froman’s alleged statements are in line with a widely reported anti-democratic trend of election denialism in which local officials in Michigan and throughout the country have threatened to interfere with the election certification process,” stated a press release .

The ACLU noted two examples of Michigan canvassers violating the law.

In 2020, two members of the Wayne County Board of Canvassers initially voted against certifying the results of the election based on false allegations of fraud in Detroit. It was later learned that they had been personally pressured by President Trump not to sign the certification documents.

More recently, Republican members of the Delta County Board of Canvassers initially refused to certify the results of elections earlier this year for county offices based on unfounded allegations of voter fraud. They quickly reversed that decision and certified the results after being reminded by state election officials of their ministerial duties under the law.

Part of the guidance issued by Board of Elections Director Jonathan Brater after the Delta County incident was a reminder that when a board of county canvassers fails to certify an election, the Michigan Board of State Canvassers is then required to do so.

“[U]ntil certification is complete, all members of the Board of County Canvassers, the County Clerk, County Clerk election staff, all city and township clerks, and their staff must be available to assist with and deliver records for the state canvass upon request. This may require being present in person at offices in Lansing or the designated canvass location,” said Brater, who further stated that all of the costs associated with that process, “including costs needed for transportation, lodging, meals, and all costs incurred by the Michigan Department of State, Michigan Department of Attorney General, Michigan State Police, or any other state agency, will be the responsibility of the county.”

The ACLU’s lawsuit states that in addition to the “burdensome costs on voters” that would be imposed by failing to certify, such a failure would also “promote partisan conspiracy theories that undermine public confidence in American democracy.”

“For democracy to work, election officials at all levels must put adherence to the law above partisanship,” said Phil Mayor, senior staff attorney at the ACLU of Michigan. “This lawsuit should also send the message to all election officials that the ACLU and other pro-democracy organizations are on guard and ready to act if voters’ right to a free and fair election is flouted by election officials for partisan gain.”

The ACLU says similar concerns about potential refusals to certify election results have been reported in other swing states including Nevada , Colorado , Georgia and Arizona .

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