Tresa Baldas, Paul Egan, and Kathleen Gray

Detroit Free Press

A federal appeals court upheld the Michigan recount that's been under way since Monday in an opinion issued late Tuesday, just moments before a state appeals court issued an opinion saying the recount should never have been allowed to begin.

The dueling appellate opinions set up further proceedings before U.S. District Judge Mark Goldsmith, who ordered the recount to begin Monday, two days before state officials had scheduled it to start.

In a 2-1 opinion, the U.S. 6th Circuit Court of Appeals said Goldsmith "did not abuse (his) discretion" in ruling that the start of the recount should be accelerated to Monday, from a planned start date of Wednesday.

Though that's a blow to the Michigan Republican Party, which sought to stop the recount, the ruling also contained hope for state Republicans, because it was limited to Goldsmith's action in doing away with a planned two business-day delay in starting the recount in Michigan. It didn't address whether the recount itself was lawful.

Minutes after the 6th Circuit issued that opinion, the Michigan Court of Appeals released a 3-0 opinion, following a hearing Tuesday afternoon, saying the state Board of Canvassers never should have allowed the recount to proceed because Stein — who received just more than 1% of the vote — did not qualify as an "aggrieved candidate" under state law.

The 6th Circuit, in affirming Goldsmith's order, said: "If subsequently, the Michigan courts determine the ... 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 this order in this case."

The 6th Circuit panel said it did "not decide that there is a freestanding constitutional right to a recount or that plaintiffs validly invoked a recount under Michigan law, or that plaintiffs should necessarily prevail on the merits of this suit.

The panel said it only found that Stein and a Michigan voter would have suffered "irreparable harm" if the recount was not started quickly enough to get it completed before a Dec. 13 fedearl deadline to guarantee Michigan's 16 electoral votes are counted.

The Michigan Republican Party will file a motion tonight with Goldsmith to dissolve his order, said Sarah Anderson, spokeswoman for the party.

“We’ll be making that motion and expect that recount will be stopped.”

Christopher Thomas, Michigan’s Director of Elections, said on Michigan Public Radio this morning that he would not stop the recount unless directed to do so by Goldsmith.

John Pirich, an attorney for Trump, said at first blush, the state Court of Appeals came to the same conclusion that the Trump campaign did: “that Jill Stein is not an aggrieved party and has no chance of winning.”

But Mark Brewer, an attorney for Stein, said the federal Court of Appeals refused to stay the 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.

“It was a great victory for us in the 6th Circuit,” he said. “But the injunction (ordering the recount to start and continue) is still in place and if someone wants to dissolve it, we’ll have to go back to federal court. And in the meantime, the recount will continue tonight and tomorrow morning.”

The Board of State Canvassers is scheduled to meet in Lansing at 9:30 a.m. Wednesday. The meeting was scheduled before the court rulings came down.

Federal appeals Judges Eric Clay and Bernice Donald upheld Goldsmith’s ruling that the recount should go forward while Judge David McKeague dissented, saying Goldsmith had overreached on his decision.

“It is obvious that the district court overstepped its bounds in numerous ways by inserting itself into what were orderly election processes," said McKeague, a Michigan native, adding that Goldsmith's order went beyond what Stein had requested.

Those seeking the recount argue Michigan's machines are vulnerable to fraud and hackers, and that there were plenty of people with both motive and the ability to interfere with the election. For example, they cited hacking attempts on the Democratic National Committee, Democratic presidential candidate Hillary Clinton and Arizona and Illinois election officials leading up to the election. What raised red flags in the Michigan election, they said, were the 75,000 ballots that were cast by voters who didn't vote for anyone for president — roughly double the amount of people who didn't vote for anyone for president in 2012..

"For the voices of Michigan's people to be heard and their votes counted in the 2016 presidential election, Michigan must complete a recount," Stein's attorneys wrote to the 6th Circuit. "In this election, the machines failed to register votes for president in over 75,000 ballots cast ... While many or even most of those ballots may not have contained a vote for president, we know from expert testimony that at least some of them will have simply not been read by the machines. Meanwhile, only approximately one-tenth of one percent of votes needed to have been misread to have affected the outcome of the election. There is also no reason to have confidence that the rest of Michigan's vote was accurately tabulated."

Republicans and attorneys for Trump say Stein has offered no evidence, only speculation.

Goldsmith held a rare emergency hearing Sunday in the case before issuing his decision.

The Board of State Canvassers has noted that Michigan's electors already have been certified and their names have been sent to Washington.

Stein is seeking recounts in Michigan, Wisconsin and Pennsylvania — three battleground states that have voted Democratic in recent elections but shifted to Republican in 2016. If recounts resulted in all three states flipping to Democrat Hillary Clinton from Trump, Clinton would win the presidency.

Stein has said she doesn’t expect to change the outcome, but wants to test the integrity of voting systems. She finished fourth in the presidential election in Michigan, getting just more than 1% of the vote. Official Michigan results show Trump defeated Clinton by 10,704 votes.

Contact Tresa Baldas: tbaldas@freepress.com