Judge dismisses President Trump’s suit to stop absentee counting in Michigan

LANSING — A Michigan judge on Thursday rejected President Donald Trump’s attempt to halt absentee ballot counting in the state, dismissing his campaign’s primary piece of evidence as “hearsay” and telling attorneys there is “no basis” to believe their lawsuit could succeed.

The Trump campaign filed the complaint Wednesday, but Court of Claims Judge Cynthia Stephens said she could not consider it then because it did not include an affidavit of allegations or a request for a temporary restraining order, which would have been required for her to act.

By the time Stephens ruled from the bench Thursday afternoon, the suit was effectively moot because local clerks had already finished counting all absentee ballots in Michigan, which Trump lost to Democratic challenger Joe Biden by nearly 150,000 votes, according to unofficial results.

Related stories:

• As Joe Biden leads Michigan, President Trump seeks to derail count
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• Post-election, Detroit braces for legal challenges to its results

A conservative group called the Election Integrity Fund on Wednesday filed a separate lawsuit in an unsuccessful attempt to stop the counting of some ballots in Detroit, a Democratic stronghold where election workers processed the last of roughly 170,000 absentee ballots that night. 

The Trump campaign’s complaint alleged that Michigan Secretary of State Jocelyn Benson did not ensure GOP poll challengers had “meaningful access” to local polling places and argued challengers should have access to any video surveillance of more than 700 ballot drop boxes across the state.

The initial complaint did not reference any specific incidents, but the Trump campaign early Thursday filed a supplemental affidavit from Jessica Connarn, a metro Detroit attorney who was allowed into Detroit’s TCF Center as a Michigan Republican Party poll challenger.

In her sworn affidavit, Connarn alleged she spoke with an unidentified poll worker who told her “she was being told to change the date on ballots to reflect that the ballots were received on an earlier date.”

The court filing included a picture of a note Connan said the election worker slipped her. “Entered receive date as 11/2/20 on 11/4/20,” the note said. It was signed “jj.” 

The allegation is “hearsay” because Connarn did not have any direct knowledge of the situation, said Stephens, an appointee of Democratic former Gov. Jennifer Granholm. It might actually be “double hearsay,” contended Kevin Hamilton, an attorney for the Democratic National Committee.

While he had not seen the affidavit, a senior adviser to Detroit Clerk Janice Winfrey told Bridge Michigan that Connarn may have misunderstood a processing issue the city resolved Wednesday. 

Roughly 200 ballots had not been “fully logged” into the state’s Qualified Voter File when they were received at satellite clerk’s offices, likely because workers simply failed to hit “save,” said Chris Thomas, who previously worked as state elections director. 

Those ballots were physically stamped with the date of receipt, however, so the city directed poll workers at the TCF Center to use that stamp date to enter them as received in the Qualified Voter File, he explained 

“When they set up the satellite offices, they brought in furloughed [workers] who did a great job but they may not have dotted all the I’s and crossed all the T’s in some instances,” Thomas said.

“It was not a huge number of ballots.”

The ballots in question all “got in by 8 o’clock on Election Day,” said Mark Brewer, an elections attorney who was also at the TCF Center on Wednesday as a Democratic poll challenger. 

“If this affidavit is claiming they should have entered yesterday’s date, that’s just wrong, because that would have meant the ballot was disqualified,” said Brewer, former chairman of the Michigan Democratic Party. 

“The number of security checks here — there’s a lot of them,” Brewer told Bridge on Thursday. “And obviously these folks did not understand the system. They have this narrow tunnel vision of what they see in front of them, but they have no idea on the procedures, which are decades old.”

Benson, in a Wednesday evening press conference, called the Trump lawsuit a distraction.

"It's time we all come together and not allow frivolous lawsuits or any effort to misinform the public about the truth behind our elections,” she said. 

Michigan Attorney General Dana Nessel’s office applauded Thursday’s ruling, saying Stephens “identified the same defects in the campaign's filings as we did, namely a complete lack of any evidence of wrongdoing on the part of election officials, and meritless legal arguments.”

A separate lawsuit filed Wednesday by the Election Integrity Fund sought to stop Detroit election workers from “duplicating” ballots that could not initially be read by tabulating machines, including those with tears or coffee stains. 

That “curing” process is a routine function, but the complaint alleged the process in Detroit was not always overseen by election inspectors from both major political parties. 

Inspectors are essentially partisan poll workers, and the state requires that at least one Republican inspector and one Democratic inspector be present when absentee ballots are counted. 

“On information and belief, [Detroit Clerk Janice Winfrey and the City Election Commission] are allowing hundreds or thousands of ballots to be ‘duplicated’ solely by the Democratic Party inspectors and then counted,” attorneys for the Election Integrity Fund wrote. 

There were always election inspectors from both political parties at the TCF Center, but there may not have always been two at each of the 134 counting tables, Thomas acknowledged in a Thursday interview with Bridge. 

That’s because not enough Republican inspectors signed up to work in Detroit, an overwhelmingly Democratic city, Thomas said. He called it a “hiring process” issue.

“While there may not in every instance have been a Republican [inspector] completing the ballot, they had plenty of challengers there to cover the tables and watch how they did that,” he said. “Very few, if any, of the duplicated ballots were actually challenged.”

If the lawsuit had been successful, it would have primarily restricted the city from counting absentee ballots from military members and Michigan voters who were otherwise out of the country, Thomas said. 

Those voters email “facsimile” ballots to clerks, and each one must then be duplicated onto an actual ballot that can be fed into a counting machine, he explained.

The city duplicated about 2,000 military and overseas ballots before counting each a single time, Thomas said. There may have been “a few hundred” other ballots that were duplicated because they could not initially be scanned by the tabulator machines because of tears or other reasons.

Overall, Detroit’s absentee ballot count went “great,” said Thomas, who came out of retirement to assist Winfrey. 

“No execution is perfect,” he said. “This is not like an auto plant that runs day in and day out. This process gets turned on twice a year every other year.” But on the whole, “everything was done well,” Thomas told Bridge.