Panel denies Trump campaign's appeal seeking a stop to counting, certification

Beth LeBlanc
The Detroit News

A Court of Appeals panel has denied a request from President Donald Trump's campaign to appeal a lower state court's rejection of a case seeking to stop the counting and certification of Michigan's election results. 

President Donald Trump walks out to speak in the Brady Briefing Room in the White House, Tuesday, Nov. 24, 2020, in Washington, with Vice President Mike Pence.

The 2-1 order said the Trump campaign's request is moot given that the Wayne County Board of Canvassers and the Board of State Canvassers already certified the election. 

The majority also noted that though the Trump campaign qualified its filing as "emergency," it left key documents out of its Nov. 6 appeal and didn't rectify the issue until Nov. 30. The only relief left to the campaign would be a recount, the deadline for which passed last week. 

The majority opinion, written by Judge Stephen Borrello, noted Trump's campaign failed to address how the suit had any viability with those key events past. 

"Perhaps the reason for plaintiff failing to discuss the impact of the certification is because such action by the Michigan State Board of Canvassers clearly rendered plaintiff’s claims for relief moot," wrote Borrello, an appointee of Democratic former Gov. Jennifer Granholm. 

Borrello was joined by fellow Granholm appointee Judge Amy Ronayne Krause. 

Borrello said assertions made in Judge Patrick Meter's dissent were "not supported by law or by fact."

The lawsuit filed the day after the Nov. 3 election was the first to challenge Michigan's results and was followed by several others from various parties, none of which has been successful in court so far. 

Court of Claims Judge Cynthia Stephens rejected the Trump campaign's lawsuit last month, finding that ballot counting was already concluded and that the suit was filed against Secretary of State Jocelyn Benson when local clerks were the ones responsible for administering elections. Though the lawsuit alleged a poll challenger was denied access, it never detailed where the challenger was denied access, when or why, Stephens said. 

Meter wrote a short dissenting opinion, arguing that a random three-judge panel should be chosen to decide the case in three days without oral argument. 

The Trump campaign's request that absentee ballots be segregated or that ballot drop box video be available to observe are still available as forms of relief, wrote Meter, an appointee of Republican former Gov. John Engler. 

"The issue of mootness is more than the 'elephant in the room,'" Meter wrote. "The issues are not moot because state electors have not yet been seated, the Electoral College has not yet been assembled, and Congress has not yet convened to consider whether to exercise its powers" in the electoral process.

eleblanc@detroitnews.com