Stein suit follows Trump’s in Michigan recount bid

Chad Livengood, and Jennifer Chambers
The Detroit News

Lansing — President-elect Donald Trump on Friday sued Michigan election officials in a bid to stop a recount of the Nov. 8 election results, contending that Green Party opponent Jill Stein doesn’t have legal standing to seek a recount of 4.8 million ballots.

Trump attorney John Pirich arguers against the recount.

In seeking to stop the recount from starting, Trump’s attorneys asked the Michigan Court of Appeals to impose a temporary restraining order on the State Board of Canvassers and Michigan’s Director of Elections Chris Thomas.

Stein also sued the same elections officials late Friday in federal court, challenging a two-business-day waiting period for the recount to commence by Wednesday morning.

“Such needless delay risks the recount will not be completed before the deadline — a result which would render the presidential vote in the state of Michigan utterly meaningless,” Stein attorney Mark Brewer wrote in the lawsuit.

Trump’s lawsuit alleged the board and Thomas were “disregarding Michigan election law” in allowing Stein’s request for an 83-county recount to commence next week.

Lansing attorney Gary Gordon, who is representing Trump, argued Stein is not an aggrieved candidate since she has little chance of personally benefiting from a shift in votes.

“Stein has not alleged that she can win Michigan’s presidential election as the result of a recount, but instead contends that only vague assertions of being aggrieved are sufficient to trigger a recount of nearly 5 million votes,” Gordon wrote in the lawsuit.

Attorney General Bill Schuette made the same argument earlier Friday to the Michigan Supreme Court in his request for a emergency Tuesday to stop the recount from likely starting on Wednesday.

Attorneys for the Republican president-elect and GOP attorney general contend Stein has not been harmed by the election results because she finished in a distant fourth place with 51,463 votes — less than 1.1 percent of the vote. Trump’s 2.27 million votes bested Democrat Hillary Clinton’s 2.26 million votes, according to the state’s results that were certified Monday.

“In order to be ‘aggrieved,’ a candidate must set forth an actual harm such that a recount of election results could change the result in that candidate’s favor,” Gordon wrote.

Stein’s recount petition claimed she was “aggrieved on account of fraud or mistake” in the counting of nearly 4.8 million ballots, but offered no specific evidence of how Trump’s 10,704-vote victory over Clinton harmed her.

“In the circumstances here, Stein could not possibly have been ‘aggrieved’ by heretofore unidentified fraud or mistake,” Chief Deputy Attorney General Matthew Schneider wrote Friday in a brief to the state Supreme Court on behalf of Schuette.

Trump’s lawsuit mirrored the arguments Gordon and Lansing attorney John Pirich made on Trump’s behalf earlier in the day during a lengthy hearing before the State Board of Canvassers.

Gordon acknowledged there’s no case law that defines whether a candidate is aggrieved.

“That’s because the issue has never arisen,” Gordon told the board. “And it’s never arisen because no one receiving 1 percent of the vote has ever attempted to foist … a $5 million recount bill on the taxpayers of Michigan.”

Past court rulings regarding the eligibility of a candidate to seek a recount have involved second-place finishers contesting the results because they stood a chance of prevailing in a manual recount of the paper ballots.

Schuette’s court filing asked Michigan’s highest court to allow him to bypass the Court of Appeals and “issue a writ of mandamus to prohibit the recount of presidential ballots because Stein is not an aggrieved candidate under Michigan law.”

“... Stein has suffered no loss or injury from any supposed irregularities in the canvass of the votes,” Schneider wrote.

Brewer, a Southfield attorney representing Stein, argued he doesn’t have to show proof of electoral wrongdoing that harmed the Green Party nominee.

“You only need to allege that you are aggrieved,” Brewer told the Board of State Canvassers on Friday.

The four-member elections panel deadlocked Friday 2-2 along party lines on Trump’s request to stop the recount. The recount is set to begin by Wednesday, barring a judicial branch intervention.

Brewer argued there’s no state law setting guidelines for whether a candidate is aggrieved and has the right to get a statewide recount at taxpayer expense.

“The Legislature has not authorized you to conduct any inquiry into whether someone’s aggrieved at all — or what the standard may be,” Brewer told the board.

Detroit labor attorney Mary Ellen Gurewitz, a state election law expert, said the statute on recounts states people only have to allege they are aggrieved. If evidence is available it should be provided, the law says.

“But they don’t have to establish or plead facts,” Gurewitz said. “She alleges she is aggrieved. She doesn’t have to prove she was aggrieved or say anything specific. That’s the really important piece.”

Gurewitz, a lead attorney suing state election officials in a federal lawsuit in Detroit to restore straight-ticket party voting to Michigan in 2017, said Stein could choose to seek federal court action to override the Michigan courts.

“(Stein) could file there. Not doing a recount is interfering with the right to vote,” she said. “I would say that the depriving people of the right to a recount deprives them of an accurate count of their vote.”

Trump’s lawsuit also contends Stein’s recount petition should be tossed because it wasn’t properly notarized.

Schuette’s court intervention filed Friday morning named the Board of State Canvassers as the defendant.

The Republican attorney general filed his lawsuit in the Michigan Court of Appeals but also asked the Supreme Court to take up the matter, allowing him to skip the lower court because of the time constraints.

Schuette and Trump’s attorneys contend the recount faces a Dec. 13 deadline, although state Director of Elections Chris Thomas said Friday he has doubts it is a hard cutoff date under federal election law.

A December deadline to finalize vote totals for the Electoral College played a partial role in 2000 when the U.S. Supreme Court stopped a Florida recount in the presidential election, allowing George W. Bush to defeat then-Vice President Al Gore by 537 votes.

The Court of Appeals has given the Board of State Canvassers until noon Tuesday to respond to Schuette’s suit. The elections panel has scheduled its next meeting for 9:30 a.m. Tuesday at the Capitol.

Trump’s attorneys asked the appeals court to act quickly as the state’s electors are slated to cast their votes in the Electoral College on Dec. 19.

“If the Bureau of Elections moves forward with the recount, it will waste the state’s scarce resources, create a logistical nightmare for counties across the state and assure that Michigan’s Electoral College voters will not be counted,” Gordon wrote.