Paul Egan, and Kathleen Gray

Detroit Free Press

LANSING — The Michigan Court of Appeals ruled Tuesday that the Board of State Canvassers never should have allowed a recount requested by Green Party candidate Jill Stein to proceed, because she has no chance to overturn the result of the presidential election in her favor and is not an aggrieved candidate.

The panel ordered the board to "reject the Nov. 30, 2016 petition of candidate Stein that precipitated the current recount process."

The ruling came out almost simultaneously with a 2-1 order from the U.S. 6th Circuit Court of Appeals which upheld U.S. District Judge Mark Goldsmith's Monday order that the recount must get under way at noon that day, which it did.

The combined effect of the two rulings appears to set up further court proceedings in front of Goldsmith and the Michigan Republican Party has already filed for another federal hearing.

“The Michigan Court of Appeals ruled in our favor, determining that the petition for recount filed by Dr. Jill Stein should have been denied,” said Ronna Romney McDaniel, chairwoman of the Michigan Republican Party. “Dr. Stein is not an aggrieved candidate as she has no chance of winning the election in Michigan.”

Attorney General Bill Schuette said: "I’m grateful, and I know Michigan taxpayers agree, that the Michigan Court of Appeals has adhered to the rule of law," given that estimates of the cost of the recount are as high as $5 million -- more than $4 million more than the fee Stein was required to pay.

Andrea Bitely, a spokeswoman for Schuette, said the Michigan Court of Appeals said “there is no conflict between” its order and the federal district court’s temporary restraining order, so the recount should end immediately.

However, "to ensure clarity for Michigan taxpayers, (and as recommended in the 6th Circuit’s opinion issued this evening), the Attorney General is now filing in the federal district court a motion to dissolve the temporary restraining order," Bitely said.

Mark Brewer, an attorney for Stein, said the U.S. 6th Circuit Court of Appeals refused to stay the Republicans' 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.

The state panel said that to qualify as "aggrieved," Stein "must be able to allege a good faith belief that but for mistake or fraud," she would have had a reasonable chance of winning."

Stein's petition sent to the Board of State Canvassers "lacks even the most general allegations from which the board could infer that a recount would change the outcome of the election in Dr. Stein’s favor," the panel said, given that she lost by more than 2.2 million votes.

John Bursch, the attorney for Schuette, and Gary Gordon, attorney for President-elect Donald Trump, urged the state appeals panel to stop the recount, or at least find that the Board of State Canvassers never should have allowed it to proceed.

Brewer, representing Stein, whose campaign requested the recount because of what they called the potential for hacking, error or fraud in Michigan's voting apparatus, had the edge in light of Goldsmith's Monday order that the recount start at noon that day and "continue until further order of this court."

Brewer told the three-judge appeals panel: "This court has no authority ... to interfere in any way with a federal court order."

He got little or no pushback from the judges on that point, who appeared to acknowledge that any order by them to stop the recount would result in further proceedings in federal court in Detroit.

Judge Christopher Murray told Bursch: "We could issue an opinion right now, and the recount wouldn't stop."

"I completely disagree with that," Bursch replied.

He argued there is wording in Goldsmith's order that anticipates the recount being canceled by the state or state courts, but the judges weren't buying it. Bursch also said Elections Director Chris Thomas would have to decide whether to follow a state order to stop the recount, or go back to Goldsmith to find out what to do.

"Would you serve the jail time for us?" Presiding Judge Peter O'Connell asked Bursch, somewhat facetiously, raising the prospect of being found in contempt of a federal court order.

Short of ordering a stop to the recount, Bursch -- a former state solicitor general who is now an attorney in private practice in Caledonia -- urged the court to order the Board of State Canvassers not to certify a second set of electors if the recount is not completed by Dec. 13 -- the federal deadline for guaranteeing that Michigan's electors will be accepted by Congress. Michigan has already certified Trump electors for the state's 16 electoral college votes.

The Michigan Republican Party appealed Goldsmith's Monday ruling to the U.S. 6th Circuit Court of Appeals, where Schuette was also seeking to intervene against the recount. The 6th Circuit upheld Goldsmith's ruling in an order issued late Tuesday, but also said Goldsmith should entertain motions if state courts determined the recount violated state law.

Trump and Schuette each filed separate lawsuits Friday to block the Michigan presidential recount that began Monday and was requested by Stein, who finished fourth in the Nov. 8 presidential election with just over 1% of the vote. Official results show Trump defeated Democrat Hillary Clinton by 10,704 votes.

Bursch and Gordon argued the Board of State Canvassers never should have allowed the recount to proceed, because Stein is not an "aggrieved" candidate under state law.

The state appeals court agreed.

O'Connell compared Stein to a baseball team that lost 99-0 and complained to the umpire that one run should not have counted.

"What my client has done is go to bat for voters," Brewer replied.

Michigan judges run on a nonpartisan ballot, but the panel has Republican leanings. O'Connell, the presiding judge, was elected to the Michigan Court of Appeals in 1994 and has roots in the Republican Party. Judge Jane Markey was also elected in 1994 and has sought the Republican nomination to the Michigan Supreme Court. Murray was appointed to the court in 2002 by former Republican Gov. John Engler and is a former Engler deputy legal counsel.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.