As Trump lawsuit sputters, Michigan moves closer to certifying election

• Nov. 17 update: Wayne County changes course, certifies election as GOP members relent
• Nov. 17 update: Joe Biden won, Michigan elector coup ‘not going to happen,’ GOP leader says

LANSING — President Donald Trump continues to suffer legal setbacks in his attempt to block certification of Michigan election results, a case delayed by his attorneys’ failure to complete basic protocols.

Five days after the campaign brought suit, and just one day before Michigan counties are set to certify election results the president is contesting, Trump attorneys had not yet “served” election officials with a copy of the complaint as required, District Court Judge Janet Neff said in a Monday order.

That means the Trump campaign has not formally notified the defendants they are trying to sue, a routine and mandatory procedure in civil litigation.

Lead Trump attorney Mark “Thor” Hearne, who is based in Missouri, did not immediately respond to a Bridge message seeking comment on what appears to be the latest in a series of blunders that have plagued the campaign’s Michigan litigation.

Attorneys usually “serve” defendants at the same time they file a lawsuit, and there’s no reasonable explanation for why that process would take five days, said Steven Liedel, a Michigan government policy lawyer with the Dykema firm in Lansing. 

“Typically, when you’re asking for a court to do something extraordinarily quickly, you want to make sure you’ve taken all the steps you need to permit that to happen,” he told Bridge Michigan. “If folks actually haven’t been served, that would likely be an issue in any action in the litigation.”

Trump lost Michigan to Democrat Joe Biden by more than 146,000 votes, according to unofficial results. 

But the president has claimed victory here and refused to concede the national election as he seeks to overturn results in Michigan and other battleground states.

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The campaign’s Michigan complaint is based around disputed claims that GOP poll challengers were denied meaningful access to observe absentee ballot counting at the TCF Center in Detroit. It also claims a dead person cast a ballot in the Nov. 3 election, which is not true.

Wayne County Judge Timothy Kenny, a Republican appointee, rejected a similar third-party lawsuit on Friday, ruling the claims were “incorrect and not credible.” 

Stopping election certification would be an “unprecedented exercise of judicial activism,” Kenny wrote in a decision that conservative attorneys are appealing to the Michigan Court of Appeals. 

Without explanation, GOP attorneys on Monday also dismissed a separate lawsuit that sought to invalidate 1.2 million Michigan votes in Wayne, Ingham and Washtenaw counties. 

James Bopp, an attorney for True the Vote and a former vice chairman of the Republican National Committee, declined to comment on the dismissal, citing attorney client privilege. 

"I do not telegraph my next moves," Bopp told Bridge Michigan in an email.

Dana Nessel, the state’s Democratic attorney general, called the dismissed lawsuit a deliberate attempt “to spread misinformation about the security and integrity of Michigan elections.

“Our elections have been conducted fairly and transparently and the results reflect the will of Michigan’s voters,” she said in a statement. “Any claims to the contrary are wholly without merit.”

The Trump campaign’s federal suit remains active and seeks to halt election results certification in Wayne County, where bipartisan canvassers are set to meet Tuesday, and statewide certification in Lansing, where bipartisan canvassers are expected to convene Nov. 23.

The Nov. 11 complaint alleges Michigan Secretary of State Jocelyn Benson and Wayne County election officials “allowed fraud and incompetence to corrupt the conduct of the 2020 general election.” 

Those claims are based on GOP poll challenger accounts that do not include any direct evidence of fraud.

The NAACP is seeking to intervene in the case, calling it an “all-out attack on votes cast by Black voters” in Detroit, where nearly 79 percent of residents are African American.  

Neff, a Republican appointee assigned to the case, said Monday that the Trump campaign had not responded to NAACP requests to “meet and confer” on the motion. So she ordered any response to be filed by 5 p.m.

The City of Detroit is also seeking to intervene in the case, arguing the Trump campaign’s complaint “repeatedly alleges that Wayne County conducted the election in Detroit, displaying a fundamental misunderstanding of how elections operate in Michigan.”

The Trump campaign initially sued Michigan in the state Court of Claims, where Judge Cynthia Stevens denied the president’s request to halt absentee balloting, ruling that the primary evidence of alleged impropriety presented by GOP attorneys was “hearsay” testimony. 

Hearne attempted to appeal that ruling, but the Michigan Court of Appeals deemed the request “defective” because it did not include required paperwork. He promised to file that paperwork seven days ago, but as of Monday had still not done so, according to a court spokesperson.

Trump’s campaign also erroneously filed its Michigan lawsuit in the U.S. Court of Federal Claims, which only hears monetary claims against the U.S. government. Hearn chalked up the mix up to an “electronic error,” an explanation other attorneys have disputed. 

Hearne was the national legal counsel for President George W. Bush’s 2004 re-election campaign and helped lead a group called the American Center for Voting Rights that promoted voter fraud narratives in the 2000s before mysteriously disappearing. 

At the time, Hearne’s group was “the only prominent nongovernmental organization claiming that voter fraud is a major problem” and warranted stricter rules like voter identification laws, according to Richard Hasen, an election law expert at the University of California, Irvine.

Trump’s legal team features “out-of-state attorneys that seem to have some issues practicing here in Michigan,” said Liedel, who served as legal counsel to former Democratic Gov. Jennifer Granholm.

But beyond process, the campaign’s pleadings “don’t really point to any facts would indicate a violation of election law, or anything that would demonstrate any sort of fraud that could impact a single vote or indicate anything that could overturn the results of an election,” he said. 

Republican lawmakers in Michigan have largely remained silent as Trump alleges widespread voter fraud, falsely claims he won the state and questions the integrity of the election. Michigan’s Republican-led Legislature is conducting its own inquiry of the allegations. 

U.S. Rep. Paul Mitchell of Dryden, who did not run for re-election and is set to leave Congress at the end of the year, is among a small but growing group of Republicans urging the president to concede the race to Biden and begin a peaceful transition of power. 

Trump’s “legal challenges alleging fraud have failed due to lack of evidence,” Mitchell wrote Monday on Twitter.  “Recounts may change numbers slightly - not enough to change the outcome.  The good of this nation requires an effective transition.  Let’s just deal with it.”

U.S. Rep. Justin Amash, a former Republican from Cascade Township who did not seek re-election as a Libertarian, said Trump’s claims are “not healthy.”

“He has the right to pursue legal challenges—even futile ones, but he is hurting himself and the country with his absurd proclamations,” Amash wrote on Twitter. “Republicans in Congress need to intercede.