Pro-Trump forces spin legal wheels in challenging Michigan election results – Detroit Free Press

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Paul Egan

Clara Hendrickson
 
| Detroit Free Press

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LANSING — Lawsuits filed in the wrong courts.

Naming the wrong defendants.

Alleging facts with no connection to the defendants being sued.

Forces backing Republican President Donald Trump have filed at least five lawsuits in state and federal courts in Michigan seeking to delay or stop the state’s certification of 16 electoral votes for Democratic President-elect Joe Biden.

With every Michigander’s vote cast and counted in the presidential contest, showing Biden defeating Trump by close to 150,000 votes according to the unofficial tally, elections workers statewide are now undertaking the tedious process of officially certifying the vote and converting the state’s popular vote into the state’s Electoral College votes. That process relies on local and state election officials meeting a series of tight deadlines and fulfilling their legal duties. And derailing this process appears to be a goal the lawsuits all share.

The suits could create significant complications if they produced court orders delaying certification of election results in key Michigan counties beyond Tuesday’s deadline, or dragged out the certification of statewide results beyond the Dec. 8 “safe harbor” date by which Congress is required to accept Michigan’s electoral votes.

But the suits have been marked by unusual legal missteps and repeated judicial setbacks. Some analysts say it is difficult to discern a coherent strategy, other than to seek to undermine overall confidence in the elections process.

“I’ve heard some folks describing it as throwing a lot of stuff against the wall and hoping something sticks. It seems to be instead throwing nothing against the wall and hoping something sticks,” said Steven Liedel, a Lansing attorney who counts state constitutional law among his specialties and served as chief counsel to former Democratic Gov. Jennifer Granholm.

“I think some judges ought to start issuing some sanctions” against attorneys filing the suits, said Bob LaBrant, a longtime GOP strategist and former general counsel for the Michigan Chamber of Commerce.

In the five lawsuits filed since the election:

  • The injunctions or other requested relief were quickly rejected by judges in three of the cases, though some appeals are pending.
  • Michigan Court of Claims Judge Cynthia Stephens, in a Nov. 6 ruling that rejected the Trump campaign’s call for a halt to the counting of absentee ballots in Detroit, said key allegations in the suit were inadmissible hearsay and the campaign wrongly sued Secretary of State Jocelyn Benson over issues controlled not by her, but by local officials.
  • When it first sought to appeal Stephens’ ruling, the Trump campaign was told by the Michigan Court of Appeals that its submission was rejected as “defective” because it lacked four required documents, including a copy of  Stephens’ order it sought to appeal.
  • In dismissing a suit Friday brought by activist lawyer David Kallman on behalf of two voters, Wayne County Circuit Judge Timothy Kenny said allegations in the suit were largely “generalized speculation” fueled by misinformation, or “simply are not credible” when balanced against other evidence.
  • On Nov. 6, in denying an injunction requested in an earlier suit brought by the nonprofit Election Integrity Fund and Republican poll challenger Sarah Stoddard, Kenny again cited “mere speculation,” the plaintiffs’ misunderstanding of state election law, and “no evidence to support accusations of voter fraud.”
  • Last Tuesday, the Trump campaign accidentally sued Secretary of State Jocelyn Benson in the U.S. Court of Claims, a court reserved for federal contract disputes, patent cases, Indian claims and suits related to military pay, among other items, but not election cases. The same suit was filed in the U.S. District Court for the Western District of Michigan, where it will now be decided.
  • Though two of the five suits were successfully filed in federal court, none belong there, according to one expert. Edward Foley, a professor of constitutional law at Ohio State University, said the Electoral Count Act of 1887 gives states the opportunity to resolve such issues themselves and, especially given the tight time frame to meet the Electoral College deadline, for a federal judge to intervene “destabilizes the entire concept of states allowing its own rules and procedures and tribunals to achieve resolution.” 
  • A federal lawsuit filed Nov. 11, backed by True the Vote, a nonprofit with Tea Party roots that says it fights voter fraud, named as defendants a man who resigned from the Ingham County Board of Canvassers in October. Although it seeks to delay certification of results in Washtenaw and Ingham counties, as well as in Wayne County, the suit contains only one specific allegation related to Washtenaw County and none related to Ingham County.
  • But the True the Vote federal lawsuit does cite a temporary scrambling of unofficial vote totals in Antrim County, in northern Michigan. State officials say the glitch in Antrim, which for a short time showed Biden winning a GOP county, was the result of a one-off human error by the Republican clerk. Antrim is not a defendant in any of the cases.

On Friday, Trump placed his personal attorney, former New York mayor Rudy Giuliani, in charge of all the election lawsuits and public communications related to them, the New York Times reported.

Not coincidentally, the counties targeted in the suits are solidly Democratic ones that provided the the biggest vote margins for Biden.

Though all three counties are defendants in one of the lawsuits, nearly all of the allegations relate exclusively to Detroit and Wayne County. All the suits repeat allegations about lack of access for Republican challengers, boxes of ballots mysteriously appearing, voters’ names being entered into the system with bogus dates of birth, and ballots being run through tabulating machines multiple times. Judges have rejected those claims, saying they lack specifics and are not credible, are contradicted by more solid testimony, and, in many cases, reflect a lack of understanding of state law or what the challenger was actually witnessing.

Late Friday, the Michigan conference of the NAACP sought to intervene in Trump’s federal lawsuit challenging the vote count in Detroit and Wayne County, calling the suit “an all-out attack on votes cast by Black voters” and an “attempt to disenfranchise hundreds of thousands.”

In addition to undermining public confidence in the integrity of the election results, the lawsuits, in theory, have the potential to delay certification of election results in Wayne, Ingham and Washtenaw counties where Biden topped Trump by a combined total of more than 470,000 votes. Each county has a board of canvassers composed of two Democrats and two Republicans, and a 2-2 vote would send the certification issue to the four-member Board of State Canvassers, which has a similar partisan composition, for resolution.

But Washtenaw certified its results in a 4-0 vote Thursday, Ingham was expected to do so Monday, and Wayne is on track to certify Tuesday, officials said. In all, at least 49 of Michigan’s counties have certified their results, according to the Secretary of State’s Office.

More: Detroit judge denies request to stop election certification in Wayne County

More: Trump team tries to appeal Michigan ruling, fails to provide necessary documents

Sam Bagenstos, a U-M law professor who was a Democratic nominee to the Michigan Supreme Court in 2018, said the True the Vote federal lawsuit “picked the big Democratic jurisdictions and said, ‘Let’s invalidate all the votes of the people there.’ It’s outrageous and anti-democratic and it’s based on nothing in terms of the allegations,” he said.

Experts agreed that the lawsuits are unlikely to hold up in court or achieve what may be their unstated goal: derailing the certification process. Members of county boards of canvassers, whether they are Republicans or Democrats, would be violating their duties if they refused to certify based on flimsy evidence of fraud. Every member of the board of canvassers present during the canvass of the election is required to certify the final results. If a county board fails to certify the results of any election by Nov. 17, the Board of State Canvassers would step in to certify the county’s results. Any member of the State Board of Canvassers who fails to certify the final statewide results could be taken to court and ordered to certify the election, Bagenstos said.

“It does seem to me that what’s going on here is an effort to delegitimize the election, to throw up a bunch of mud and make people think there was something wrong with how the election was conducted and to delay the certification,” Bagenstos said. “I don’t think any of this is going to work” because “every time they recycle these allegations they just get debunked again and again.”

James Bopp Jr., the Indiana attorney behind the True the Vote federal lawsuit brought on behalf of four Michigan voters, said his case is “radically different”  than the four others filed in Michigan by the Trump campaign and conservative groups.

Bopp, a veteran election and campaign finance lawyer who was the member of former President George W. Bush’s team credited with developing the successful legal argument in the famous Bush v. Gore case after the 2000 election, told the Free Press on Friday he is using the same “vote dilution” argument in the Michigan case that he made with respect to Florida in Bush v. Gore.

He acknowledged he sued in Wayne, Washtenaw and Ingham because that is where the most Democratic votes were cast, not because rampant fraud is alleged in all three counties.

“What the complaint does is set out a course of conduct and anecdotal evidence that would give rise to a suspicion that there were illegal votes cast in the election that should be investigated,” Bopp said.

For results to be certified under those circumstances, “voters’ valid, legal votes will be unconstitutionally diluted by illegal votes,” he said.

On Thursday, Bopp asked U.S. District Judge Janet Neff to order complete poll book records, showing everyone who voted by absentee ballot or in person, turned over to his team on an expedited basis so they can complete a data analysis showing how many illegal votes were cast.

Liedel said he does not expect Bopp to have any more success than other lawyers challenging Michigan’s results.

“I don’t know what their motivations may be, but these out-of-state lawyers are trashing Michigan’s election process without actual evidence,” he said.

“A lot of lawyers go to law school because they’re not interested in math. But for election lawyers the core issue is always the math. The person with the most votes wins. And math is a very stubborn thing.”

Contact Paul Egan: 517-372-8660 or [email protected] Follow him on Twitter @paulegan4Read more on Michigan politics and sign up for our elections newsletter

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