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Judge plans to deny Trump campaign request to stall Michigan ballot count

Michigan Court of Claims Judge Cynthia Stephens said Thursday she plans to deny a request by President Donald Trump's campaign to stop the counting of Michigan ballots until more poll challengers can observe. 

The Trump campaign is assessing whether it will appeal the ruling, lawyer Thor Hearne said after Stephens indicated she would issue a written order by Friday afternoon.

Secretary of State Jocelyn Benson has already told local election officials to give access to poll challengers, the judge said. But the responsibility to give that access ultimately lies with the local election officials, who are not listed as defendants in the complaint. 

Further, Stephens said, Michigan's count largely is completed and relief in the form of a halt to counting is unavailable. When the suit was filed at 4 p.m. Wednesday, the state already had made large inroads into completing its count, she said.

"I have no basis to find that there's a substantial likelihood of success on the merits as it relates to this defendant, nor am I convinced that there is a clear legal duty on the part of anyone who is promptly before this court to manage this issue," said Stephens, an appointee of Democratic former Gov. Jennifer Granholm.  

The Trump campaign believes the state's ballot count is not entirely complete, Hearne said, arguing that as of Thursday afternoon there were still adjudication boards processing ballots and subject to poll challengers in Flint and Oakland and Wayne counties. 

Benson said Wednesday night the tabulation of ballots was complete and the state was waiting for jurisdictions to report out their results. 

The suit — which alleged damages to election challenger Eric Ostergren of Roscommon County — argued that Michigan's absent voter counting boards are not allowing inspectors from each party to be present.

It did not say which specific absent voter boards were denying access to inspectors, but Hearne said during the Thursday hearing that Ostergren was denied access to an Oakland County absentee counting board. He did not say when Ostergren was denied access or why.

Stephens' denial of an injunction in Michigan came on the same day a Georgia judge dismissed a similar suit by Trump's campaign, finding no proof that ballots being processed in Chatham County had been received after 7 p.m. on Election Day.

But Trump continued to press the allegations during a Thursday evening press conference.

“Detroit and Philadelphia, known as two of the most corrupt political places anywhere in our country, easily, cannot be responsible for engineering the outcome of a presidential race,” the Republican president said.

Attorney General Dana Nessel's office had argued Thursday that the Trump request to stop the counting of ballots in Michigan was essentially moot because Michigan's tabulation is largely finished. 

Further, in its filing, Trump's campaign failed to name a single absentee counting board preventing access to poll challengers, Assistant Attorney General Heather Meingast said. 

"The counting boards have completed their functions," Meingast said. "The ship has really sailed on the relief they’re requesting in this case.”

And the suit, filed against Benson, was misplaced since Michigan is a decentralized election system run by more than 1,500 clerks who run their own elections, count their ballots and report their results independently, said Kevin Hamilton, a lawyer for Democratic National Committee.

Stephens questioned the evidence the Trump campaign could provide to show poll challengers were disenfranchised. She also questioned an affidavit claiming Detroit poll workers were told to change dates on late absentee ballots.

"What I have at best is a hearsay affidavit, I believe, that addresses a harm that would be significant, but that’s what we got," Stephens said. "We’ve got an affidavit that is not firsthand knowledge.”

Nessel's office on Thursday celebrated the ruling, arguing the Trump campaign filed the suit with "a complete lack of any evidence of wrongdoing on the part of election officials, and meritless legal arguments."

"Michigan’s elections have been fair, transparent and reflect the will of the voters, and we will continue to defend against any challenges that claim otherwise," Nessel spokesman Ryan Jarvi said.

The campaign of the Republican president said it wanted the ballot counting to halt in the state until additional poll challengers were allowed to observe the counting process. 

Poll challengers, drop boxes

Trump's initial complaint listed no specific polling locations where he claimed Republican poll challengers had been prohibited. 

However, it was filed as a confrontation unfolded Wednesday at Detroit's TCF Center, where city police officers barred Republican and Democratic poll challengers from entering the room where Detroit ballots were being counted.

Both political parties had surpassed the law-mandated maximum of 134 challengers with more than 200 each. When election workers told GOP challengers the party had hit its limit, some began shouting about what they considered an unfair process and a lack of transparency. 

City police then locked the doors to the exhibit hall where the counting was occurring, limiting the number of challengers allowed to enter and covered windows with cardboard and poster board. 

By contrast, the counting of ballots at the TCF Center was peaceful Tuesday night and into the wee hours of Wednesday morning. The only break to the monotony occurred around 1 a.m. Wednesday when several dozen Democratic challengers showed up at the exhibit hall where the votes were counted.

The challengers said they were responding to messages on social media that the Republican challengers were slowing the vote and needed to be countered by more Democratic challengers.

But Detroit election officials had said the tabulating of ballots was proceeding smoothly.

From Tuesday through early Wednesday, various Republican challengers watching the tables where votes were counted periodically reported their concerns and asked questions to Tim Griffin, who acted as the party’s point man in the exhibit hall.

Griffin, an adjunct professor at Liberty University in Lynchburg, Va., said he was concerned about myriad issues, including a lack of Republican representation among poll workers and resistance by election officials to his party’s concerns.

“It’s not fair. It’s not equal,” he said.

The suit also contended Benson, the Democratic secretary of state, should have allowed poll challengers to watch surveillance video of Michigan's ballot boxes where voters deposited their ballots. The filing requested to have ballots that were deposited in drop boxes be segregated until challengers can review video of the drop box. 

Michigan election law requires outdoor ballot drop boxes to be monitored via video surveillance and located in a public, well-lit area. 

But the law only applies to drop boxes installed after Oct. 1 and requires communities that have installed drop boxes prior to that date to do their best to comply with the requirements. And there is no right to review the footage under state law, Nessel wrote in her Thursday filing.

Parties weigh in

Nessel, a Plymouth Democrat, and Benson, a Detroit Democrat, earlier Thursday dismissed the claims of changed dates on ballots, with Nessel's office calling them "without merit."

Benson's office did not respond directly to a request for comment but shortly after the affidavit was filed, the Department of State posted on Twitter:

"Fact check: Michigan’s election clerks count valid ballots that they received at their offices or in their official ballot drop boxes by 8 p.m. on Election Day. Ballots received thereafter, regardless of the postmark, are not counted."

Michigan's 8 p.m. Tuesday deadline for receiving absentee ballots remained in place for the election after a Michigan Court of Appeals panel overturned Stephens' ruling in a separate case that would have allowed ballots postmarked before Election Day to be counted within 14 days after Nov. 3.

The DNC on Thursday sought intervenor status in the case and argued that any order from the Michigan Court of Claims to stop the counting of ballots would violate the equal protection of its members, the same constitutional rights concern the Trump camp raised in its lawsuit. 

"Through this lawsuit, the Trump Campaign seeks to disrupt the lawful counting of ballots in Michigan, which impairs DNC's distinct and protectable interests," the DNC wrote in its motion.

In a Thursday campaign call, Trump campaign adviser Jason Miller was asked what Trump meant when he repeatedly tweeted demands to “stop” the counting of ballots. 

Miller said the president is saying states and localities should not be counting ballots that were mailed in or “magically appeared in a stack of ballots” after Election Day. 

If the ballots were legally cast and meet signature matching and other requirements, then they should be counted, Miller said. 

“To be very clear here, we should not be counting ballots that clearly came in after the election as being completely legitimate until we've had time to go through and do the challenges and to be on top of this,” Miller said. “So the president's right. We should not be counting illegal ballots, and we hold fast to that opinion.” 

The advocacy group Health Care Voter said Thursday it was spending $800,000 on broadcast and digital ads in Michigan calling on election officials to count all votes and deliver complete election results. The ad buy includes $500,000on on cable and broadcast TV in Detroit, Flint, Grand Rapids and Lansing, a spokeswoman said.

eleblanc@detroitnews.com

Staff Writer Melissa Nann Burke contributed.