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Detroit: Halt to vote canvassing would undermine 'bedrock of our democracy'

Beth LeBlanc
The Detroit News

Detroit and Wayne County lawyers warned a judge Wednesday that stopping the canvassing process in Wayne County would "undermine the very bedrock of our democracy" and validate “unsupported conspiracy theories" advanced by Republicans. 

The vote count in Detroit was conducted "properly" under state election law, said David Fink, a lawyer for the city of Detroit. 

"If we step back from this and think about the absurdity of what’s going on: Donald Trump received 5,000 more votes, roughly 5,000 more votes in Detroit in 2020 than he did in 2016," Fink said. "There was no complaint about the 2016 election, but somehow the allegation is made that we're trying to steal the election" this year.

Judge Timothy Kenny of Wayne County Circuit Court

Poll challengers requesting an audit of the Wayne County results and a halt to the certification process said they have a right to request an audit under a constitutional amendment approved by voters in 2018, Proposal 3. 

But Detroit and county officials are attempting to make a recount the only form of remedy available to those challenging the results, said David Kallman of the Great Lakes Justice Center. If the certification is allowed to proceed without an audit, a recount will be the only remedy, he said.

"We are not asking for a process audit," Kallman said. "We are talking about a results audit, which is what the Constitution permits.”

Wayne County Circuit Judge Timothy Kenny said he'll issue a written ruling by noon Friday on the request for an injunction. Kenny already has denied a similar request in a separate case focused on the absentee ballot count at the TCF Center in Detroit.

Kallman's lawsuit, filed in recent days in Wayne County Circuit Court, seeks an independent audit of the election, a halt to the certification of Wayne County voting results, an order voiding the county's results and a new election in Wayne County.

The suit is the third of four filed in the past week challenging Michigan's vote counting process, in particular in Detroit. 

The lawsuit's allegations range from restrictions on poll challengers to late arriving batches of absentee ballots to the encouragement of early voters to cast their ballots for Democratic presidential candidate Joe Biden.

The city denied each allegation, citing among its proofs an affidavit from Chris Thomas, the retired 36-year director of elections for Michigan under Republican and Democratic secretaries of state. Thomas served as a senior adviser to Detroit Clerk Janice Winfrey during the Nov. 3 general election after issues with unbalanced poll books in Detroit surfaced during the August primary. 

"It is clear from the affidavits attached to the complaint that these challengers do not understand absent voter ballot processing and tabulating," Thomas said in his affidavit.

"It is clear also that they did not operate through the leadership of their challenger party, because the issues they bring forward were by and large discussed and resolved with the leadership of their challenger party."

The city's lawyer said no workers at TCF Center counting board tables had access to the qualified voter file. Rather, they had access to the e-pollbook — a copy of the qualified voter file through Nov. 1 — and supplemental lists for voters who registered or voted absentee after Nov. 1. 

Some ballots entered into the e-pollbook were given a birth date of July 1, 1900 as a placeholder required by the software system, but the birth date plays little role in verifying a ballot, Fink said. Instead, signature matches between the e-pollbook and absentee envelope serve that purpose, he said.

No computers used at the TCF Center were connected to the internet, as alleged in the complaint, Thomas said in the affidavit. No illicit ballots were counted, and no late ballots were accepted, according to his affidavit.

"All dates on the envelopes were on or before Nov. 3, 2020; no ballots received by the Detroit City Clerk after 8 p.m. on Nov. 3, 2020 were even brought to the TCF Center," the city responded in a Wednesday filing.

"Unsecured ballots" the poll challengers allege were delivered to the TCF Center likely were blank ballots meant to be used to duplicate ballots too damaged to run through the tabulator, the filing said. 

Attorney David Kallman is asking for an injunction to halt the canvassing and certification of Wayne County votes in the Nov. 3, 2020 general election.

Election officials have said they allowed the maximum number of poll watchers for both Democrats and Republicans, only restricting access to any additional poll watchers because of COVID-19 concerns.

But Kallman maintained Thomas and the city of Detroit failed to refute the specifics of the challengers' claims and told the judge he had an affidavit from Republican former Secretary of State Ruth Johnson supporting court intervention. 

Johnson, now a state senator, said "the allegations and issues raised by plaintiff are very concerning to me and in my opinion require court intervention," Kallman said. 

But Fink argued plaintiffs' only remedy at this point is a recount, which cannot be requested until after the canvassing and certification of ballots is complete. 

"The courts are not supposed to get involved in the middle of a count," he said.