Trump files suit in Michigan to stop ballot counting

Beth LeBlanc Breana Noble
The Detroit News

President Donald Trump’s reelection campaign filed a lawsuit seeking to halt ballot counting in Michigan Wednesday amid a contentious vote-counting scene in Detroit and ahead of Democratic candidate Joe Biden being declared the battleground state's winner.

The suit, which was filed in Michigan's Court of Claims, wants Michigan's count stopped “until meaningful access has been granted" to observe the process. It's filing came as Michigan clerks neared a complete tabulation of the state's new record of votes in an election. The Trump campaign later filed similar lawsuits in Pennsylvania and Georgia.

"We also demand to review those ballots which are opened and counted while we did not have meaningful access," the Trump campaign said in a statement. 

The lawsuit's filing Wednesday set the stage for an intense battle that played out Wednesday over Michigan's 16 electoral votes. A chaotic confrontation with protesters unfolded Wednesday afternoon inside 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, and when election workers told GOP challengers the party had hit its limit, some began shouting about the unfair process and lack of transparency. An unidentified election worker shouted back the group was at its maximum size. 

City police officers then locked the doors following the altercation, limiting those who could enter. Challengers then proceeded to knock on the windows and doors looking into the rooms where ballots were being counted, and election workers covered some of the glass with cardboard and poster board.

"They're escorting us out like bouncers for a nightclub," said Republican challenger Nick Sinishtaj of Addison Township. "When you walk in, they ask what party you're affiliated with and as soon as you say GOP, they say, 'Both are at capacity.' Well, if that was the case, why did you ask what my party was in the first place?"

President Donald Trump arrives to speak at the Trump campaign headquarters on Election Day, Tuesday, Nov. 3, 2020, in Arlington, Va.

The Trump campaign on Wednesday said it had been denied access to "numerous counting locations" to observe the process "as guaranteed by Michigan law," claims countered by Democratic officials. 

“As votes in Michigan continue to be counted, the presidential race in the state remains extremely tight as we always knew it would be," said Bill Stepien, campaign manager for Trump's 2020 campaign. 

Secretary of State Jocelyn Benson called Trump’s lawsuit “frivolous” and criticized the actions of poll challengers declined access to TCF Wednesday afternoon who caused “distraction” and made “a lot of noise.”

“If they thought they were going to intimidate or stop anyone from doing their job inside the TCF Center, then they don’t know Detroit,” she said.

After the news broke of Trump's lawsuit, inside the room where ballots were being counted at Detroit's convention center, a group of unidentified people briefly started chanting, "Stop the votes!"

Detroit Clerk Janice Winfrey's office said in a statement that it mailed out 190,000 absentee ballots, and ​178,000 were returned. Detroit election officials announced the tabulating of those ballots was complete Wednesday night.

"We will not allow anyone to distract us from the job at hand," Winfrey said in a statement. "Our charge is to remain calm, focused and deliberate as we continue the task at hand."

Attorney General Dana Nessel's office said earlier Wednesday it had not been served a copy of the suit. "Michigan's elections have been conducted transparently, with access provided for both political parties and the public, and using a robust system of checks and balances to ensure that all ballots are counted fairly and accurately," said Ryan Jarvi, a spokesman for Nessel's office. 

The lawsuit filed by Trump's campaign was assigned to Judge Cynthia Stephens, an appointee of Democratic former Gov. Jennifer Granholm. The filings include a complaint and emergency motion for immediate relief. 

In the past year, Stephens ruled to uphold Gov. Gretchen Whitmer's emergency powers in Michigan, struck down the governor's ban on flavored vaping products and, most recently, required election officials to count absentee ballots postmarked before the election. Higher courts overruled the judge's late ballot and emergency powers decisions.

The suit — which alleges 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 does not say which specific absent voter boards were denying access to inspectors.

It also contended Benson, a Detroit Democrat, 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. 

It asked for a stoppage of counting until an inspector from each party is present at counting boards and allowed access to video footage from ballot boxes. 

"Secretary Benson's actions and her failure to act have undermined the constitutional right of all Michigan voters — including the voters bringing this action — to participate in fair and lawful elections," the suit said.

Michigan election law requires that ballot drop boxes be clearly labeled as such, securely locked and, if located inside a building, be secured against removal or continuously staffed. If outdoors, the drop box also must be bolted to the ground or a stationary object, monitored via video surveillance and located in a public, well-lit area. 

The law 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.

The lawsuit is "as frivolous a lawsuit as it gets," said Mark Brewer, former chairman for the Michigan Democratic Party and a lawyer. 

Brewer had been at the TCF Center in Detroit, where absentee ballots were being counted, throughout Wednesday and worked with others who have been present there Monday and Tuesday. Absentee vote tally discrepancies in Detroit marred the August primary and prompted Benson's office to form a partnership with Winfrey to correct the problems.

"I am at TCF, and there have been hundreds of GOP challengers here these past few days," Brewer said, while noting they were "ill-trained" and "rude."

"Nobody is being denied access," he said. 

The countAt least 100,000 votes remain to be counted in Michigan. Here's where they are | Poll challengers converge on Detroit amid close results

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Any judge reviewing the case is likely to take a close look at how many potential ballots would flip should he or she grant the request and how those changes would affect the vote margin between the two candidates, said Michael Kang, professor of law at Northwestern Pritzker School of Law in Chicago. 

The 70,500 vote spread between Biden and Trump as of 6 p.m. in Michigan would be significant in that decision, he said.

"It's inconceivable that any of the challenges, regardless of how right they are by any part of the law, will change the outcome of the election," Kang said.

"I don’t mean to say it's not important to get the counting of votes right," he said. "...But when we're in this kind of post-election day world, that tends to be the standard." 

A couple of hundred people gathered on the Capitol lawn Wednesday evening for a “Count Every Vote” vigil, an event that was planned about two weeks ago as the threat of voting disruptions mounted. 

Even as the threat of Trump’s lawsuit hung over the crowd, attendants were also celebratory following a largely peaceful voting process Tuesday and nearly completed ballot count Wednesday, said Oscar Castaneda, one of the organizers for the event.

“To be honest, we were looking at the worst-case scenario,” Castaneda said. “But so far, things are working the way they were supposed to work.”

eleblanc@detroitnews.com