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What the affidavits to stop Detroit ballot count claimed, and how they were rebutted

Mark Hicks
The Detroit News

When Rudy Giuliani, President Donald Trump's personal attorney, focused Thursday on the recent lawsuit by Detroit poll challengers who sought to stop the canvassing of Wayne County election results, he pointed to the affidavits made public in the case.

Those eight filings in the Costantino v. Detroit lawsuit included claims that targeted alleged restrictions on poll challengers, late-arriving absentee ballots and clerk's office workers who encouraged early voters to cast their ballots for Democratic President-elect Joe Biden and Democrats. 

Giuliani's claims Thursday joined a series of attempts by President Trump's supporters to discount Biden's win in Michigan and undermine the election of Biden as president.

Ballot challengers and others stand outside the ballot counting area after several windows were blocked as Republican and Democratic challengers were barred by police from the TCF Center, where thousands of absentee votes were being counted in Detroit on Nov. 4, after  the center reached COVID-19 capacity limits.

A Wayne County judge last week denied the request, finding many of the claims without merit following rebuttals from city officials.

The city of Detroit has denied the allegations in the case and said they are proof the plaintiffs "do not understand absent voter ballot processing and tabulating."

"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," according to an affidavit by Chris Thomas, a retired 36-year elections director for Michigan under both Republican and Democratic secretaries of state. 

The Michigan Court of Appeals on Monday night denied an appeal of the Wayne County judge's ruling. Two of the three judges on the panel were appointed by Republican governors.

Among the affidavits the Great Lakes Justice Center submitted was one by state Sen. A look at the affidavits in the case:

►Zachary Larsen, a former Michigan assistant attorney general who left for private practice in January. Working as a Republican poll challenger at Detroit's TCF Center in Detroit on Nov. 4, he noted concerns about some ballots "being marked as 'problem ballots' based on who the person had voted for rather than on any legitimate concern about the ability to count and process the ballot appropriately." Larsen also said he was prevented from viewing the supplemental polling book due to social distancing, and the book seemed to include more recent registrations or absentee ballot drop-offs not included in the qualified voter file. After leaving for lunch, he and another colleague were barred from re-entering due to capacity limits.

In court filings, Thomas, a senior adviser to Detroit City Clerk Janice Winfrey during the election, said Larsen was "raising an issue about return ballot envelopes where the barcode on the label would not scan and the voter’s name was not on the supplemental list. He was observing the correction of clerical errors, not some type of fraud. In every election, clerical errors result in voters being left off the poll list ... These errors are corrected so that voters are not disenfranchised. Michigan law ensures that voters are not disenfranchised by clerical errors."

Elections officials have argued that at least 134 Republican poll challengers observed the absentee ballot counting before a surge of other challengers demanded entrance, which was denied because of COVID-19 capacity restrictions. 

Thomas said in his affidavit that access "was controlled to ensure that challenger organizations had their full complement and did not exceed the ceiling any further than they already had."

He added that poll challengers had to sign out if they needed to leave, and for a few hours, "because there were too many challengers in Hall E for inspectors to

safely do their jobs, new challengers were not allowed in until a challenger from their respective organization left the Hall."

►Jessy Jacob, a Detroit employee the city said has been on furlough. She claimed that while working at a city satellite voting center, she saw election workers "coaching and trying to coach voters to vote for Joe Biden and the Democrat party" as well as encouraging them to vote a straight Democratic ballot. Jacob asserted she saw several people already issued an absentee ballot cast a separate one but fail to surrender their old ballot or sign an affidavit disqualifying the first, as the law requires. While processing ballots on Nov. 4 at TCF Center, Jacob alleged that she was ordered to pre-date absentee ballots' receipt date into the qualified voter file system, ignore ballot deficiencies and not compare absentee ballot signatures with ones on file.

In an affidavit, Daniel Baxter, a special project election consultant for the Detroit Department of Elections, said Jacob's claim suggests that she did not understand many of the processes that she observed, and for which she was not responsible.

He said election workers "do not offer opinions on candidates or on proposals," and that to prevent double voting, "until the first ballot is canceled, a second ballot cannot be issued. In the event the first ballot is returned, it is verified in the Qualified Voter File and rejected as a duplicate."

Addressing Jacob's allegation regarding signature checks, Thomas' affidavit said "ballots delivered to the TCF Center had been verified by the City Clerk’s staff

prior to delivery in a process prescribed by Michigan law." Also: "No ballot could have been 'backdated' ... The mailing date recorded for absentee ballot packages would have no impact on the rights of the voters and no effect on the processing and counting of absentee votes."

►Andrew Sitto, a poll challenger at TCF late on Election Day and into Nov. 4. He claimed many more absentee ballots arrived about 4:30 a.m. About 2 p.m., election officials covered the counting room windows with cardboard to block the view inside, Sitto said. When he left for a break shortly after, security guards reportedly refused to allow him back to monitor the count.

Thomas' affidavit said "each challenger organization, including Republican and Democrat, continued to have their complement of challengers inside" TCF on Nov. 4. 

Lawrence Garcia, the city's corporation counsel, has said the cardboard coverings on the windows were added because people on the other side of them were taking photos and videotaping, which is not allowed by challengers and poll workers inside the ballot-counting room, and it was making some of the workers uncomfortable. Other windows were left open so people still could see inside.

►Robert Cushman, another poll challenger who worked at the center on Nov. 4. He allegedly saw more absentee ballots arrive that day, with "none" of the names appearing in the qualified voter file or supplemental sheets drawn from new registrants. Cushman then complained because each ballot "was being fraudulently and manually entered into the Electronic Poll Book ... as having been born on January 1, 1900," allegedly, he said, following a mandate by the Wayne County Clerk's Office, his affidavit stated. "... I was surprised and disappointed at the preponderance of dishonesty, irregularities, and fraudulent activities."

In his affidavit, Thomas said the night of Nov. 4, "the Department of Elections delivered additional blank ballots that would be necessary to complete the duplication of military and overseas ballots. No new voted ballots were received."

He added "there are no names on ballots" and "No absentee ballots received after the deadline of 8:00 p.m. on November 3, 2020, were received by or processed at the TCF Center."

Thomas said the polling software required a birthdate, which inspectors didn't have, to process, so the 1900 date was used as a placeholder. "This is standard operating procedure and a standard date used by the State Bureau of Elections and election officials across the state to flag records requiring attention," he wrote.

►Daniel Gustafson, a poll challenger on Nov. 3.His affidavit asserted that many ballots "were delivered to the TCF Center in what appeared to be mail bins with open tops. These ballot bins and containers did not have lids, were not sealed and did not have the capability of having an metal seal. The ballot bins were not marked or identified in any way to indicate their source of origin."

Thomas' affidavit said: "Michigan Election Law requires clerks to safely maintain absent voter ballots and deliver them to the absent voter counting board. There is no requirement that such ballots be transported in sealed ballot boxes. To my knowledge, they are not sealed by any jurisdiction in Michigan in a ballot box prior to election day."

►Republican former state Sen. Patrick Colbeck of Canton Township, a poll challenger at TCF Center on Nov. 3. The former GOP gubernatorial candidate claimed officials denied the computers at the site were connected to the internet but he believed some devices suggested otherwise.

In his affidavit, Thomas said: "The laptop computers at the counting boards were not connected to the Internet. Some of the computers were used to process absent voter ballot applications in mid-October and were connected to the (qualified voter file). On election day and the day after election day, those computers were not connected and no inspector at the tables had QVF credentials that would enable them to access the QVF. The Qualified Voter File has a high level of security and limitation on access to the file. For example, it is not true that a person with QVF credentials in one city is able to access data in another city’s file within the QVF."

►Mellissa Carone, a contractor for Dominion Voting Systems, which performed IT work at the TCF Center on Nov. 3 and 4. During her time there, she claimed to have seen batches of ballots counted more than once and said she, the only Republican on her team, heard “many terrible comments being made by the city workers and Dominion workers about Republicans.”

In a response filed this week, Thomas said Carone’s allegation “cannot be true. She says she saw on a computer that 50 of the same ballots had been counted 8 times …. She does not say she saw multiple scans; just that she saw the numbers on various computers. If what she said were true, at the very least, 350 extra votes would show up in at least one precinct… However, a mistake like that would obviously be caught very quickly onsite.”

On Nov. 13, Wayne County Circuit Judge Timothy Kenny denied the 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. 

Kenny also rejected the request for an independent audit of the county's results, citing that state law governs the audit process, and cast doubt on several of the affidavits, writing that the poll challengers had not attended an Oct. 29 walk-through of operations at TCF Center and "did not have a full understanding" of the process.

"No formal challenges were filed. However, sinister, fraudulent motives were ascribed to the process and the city of Detroit," Kenny said in his opinion. "Plaintiff's interpretation of events is incorrect and not credible."

Kenny also said some of the affidavits were "rife with speculation," noted Colbeck had in a recent Facebook post alleged Election Day fraud by Democrats, which "undermines his credibility as a witness," and wrote that many of the supplied statements were "generalized."

Democratic challengers also were barred from the TCF Center when it reached COVID-19 capacity limits, undermining claims that Republicans alone were targeted, he said.