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Supreme Court denies appeal seeking audit of Wayne County's election results

Beth LeBlanc
The Detroit News

The Michigan Supreme Court denied an appeal from poll challengers seeking an immediate halt to the certification of Wayne County results, ruling the request should not be reviewed by the high court. 

The 6-1 opinion was released Monday, nearly a week after the Wayne County's certification was completed and a little more than an hour after the Board of State Canvassers certified the Nov. 3 results of Michigan's 83 counties. The certification cemented President-elect Joe Biden's 154,000 vote victory in Michigan. 

The Costantino suit, which originated in Wayne County Circuit Court, was one referenced frequently by President Donald Trump's lawyer Rudy Giuliani in a press conference last week as proof of fraud in Michigan's election.

State of Michigan Supreme Court seal in The Hall of Justice in Lansing.

Wayne County Circuit Judge Timothy Kenny earlier this month denied a request to stop the canvassing and certification of Wayne County's election results, noting that Detroit officials "offered a more accurate and persuasive explanation of activity" within the TCF Center the week of the election. He also refused a request for an audit prior to certification.

Poll challengers, represented by the Great Lakes Justice Center, requested an independent audit of the Wayne County election result based on purported restrictions on poll challengers, late-arriving absentee ballots and clerk's office workers who encouraged early voters to cast their ballots for Biden and Democrats. Detroit officials refuted each of the claims. 

Republican-nominated Justice Brian Zahra noted the claims were serious but pointed out the certification of results in Wayne County, which took place Tuesday, has made the request moot. Even if two canvassers sought to rescind their votes, there is no evidence that would lead to decertification, Zahra said in a concurring opinion.

Contrary to what was argued by poll challengers, the certification of results in Michigan appears to be a "prerequisite" to any audit, Zahra said. 

After all, the justice wrote, how can one audit statewide election results "absent any results, and, further, what would be properly and meaningfully audited other than final, and presumably certified, results?"

But Zahra said nothing in his opinion should "diminish the troubling and serious allegations of fraud and irregularities" asserted in affidavits. And the allegations presented in the suit have "raised important constitutional issues regarding the precise scope" of audits promised in 2018 a voting rights initiative and its "interplay" with other election laws. 

Zahra noted that Secretary of State Jocelyn Benson has already promised to conduct a post-election audit and encouraged the trial court to address the poll challengers' remaining issues with "expedited consideration." 

"I am cognizant that many Americans believe that plaintiffs' claims of electoral fraud and misconduct are frivolous and obstructive, but I am equally cognizant that many Americans are of the view that the 2020 election was not fully free and fair," said Zahra. He was joined by Republican-nominated Justice Stephen Markman. 

Republican-nominated Justice David Viviano wrote a dissenting opinion, noting the voting rights initiative passed in 2018 allowed any Michigan elector to request an audit but was silent on what types of audits could be requested, when they're conducted and what evidence an elector would have to show to obtain one. 

"Is it a mechanism to facilitate challenges to election results, or does it simply allow for a postmortem perspective on the election is handled?" Viviano said. 

The courts must determine the "nature and scope" of the audits indicated in the 2018 petition initiative so the state can determine when an audit should occur and if it can affect the final certification, he wrote.

The questions "go to the heart of our democracy" and should be heard by the Supreme Court, Viviano said. 

"They deserve serious treatment," he said. 

eleblanc@detroitnews.com