Suit asks Supreme Court to take custody of all election materials for investigation

Beth LeBlanc
The Detroit News

A conservative legal group has asked the Michigan Supreme Court to take custody of all Nov. 3 election materials to give the Michigan Legislature time to audit the results, investigate all claims of ballot irregularities and fraud, and "finish its constitutionally-mandated work to pick Michigan's electors."

The lawsuit filed Thursday seeking the collection of ballots, pollbooks and ballot boxes also asks the court to stop the Secretary of State Jocelyn Benson and the Board of State Canvassers from giving final certification to the state's election results until a special master can be appointed to review alleged ballot irregularities and the legality of absentee ballots in Wayne County. 

It's not likely the relief sought is possible given that state canvassers gave final certification Monday, though a lawyer for the Thomas More Society's Amistad Project says he sent a letter to the canvassing board warning it not to certify. 

The list of electors aligning with President-elect Joe Biden's 154,000-vote win in Michigan was sent by Gov. Gretchen Whitmer to the U.S. Secretary of State that same day. 

Likewise, the Michigan Legislature already is holding hearings to review complaints related to the Nov. 3 election and Benson has said she will audit results statewide and in Wayne County specifically.

Michigan's Republican legislative leaders have said on several occasions that, pursuant to state law, the winner of the popular vote in Michigan will receive the state's 16 votes in the Electoral College next month. 

"We have not yet been made aware of any information that would change the outcome of the election in Michigan and, as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election," House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey said in a joint statement after a meeting with President Donald Trump.

The suit, the fourth state-level lawsuit to challenge Michigan's results, was filed on behalf of Linda Lee Tarver and Angelic Johnson, both Michigan members of Black Voices for Trump and voters in the 2020 election.

The suit was filed directly with the Supreme Court under a Michigan law that allows plaintiffs with grievances against the Board of State Canvassers to plead before the state justices.

“In numerous instances, state and local officials brazenly violated election laws in order to advance a partisan political agenda,” said Phill Kline, director of the Thomas More Society's Amistad Project, in a statement. “The pattern of lawlessness was so pervasive and widespread that it deprived the people of Michigan of a free and fair election, throwing the integrity of the entire process into question.”

The lawsuit largely targets allegations arising from absentee ballot processing at the TCF Center in Detroit, Benson's mass mailing of absentee ballot applications and funding received by the state from an organization called the Center for Tech and Civic Life. It alleges violations of state Constitutional rights, such as equal protection and due process. It cites many of the same claims made in other suits from Republicans and Trump supporters.

A day after its filing, Trump repeated claims of voter fraud in Detroit and argued there were more votes than voters in the state's most populous city.

"Biden did poorly in big cities (Politico), except those of Detroit (more votes than people!), Philadelphia, Atlanta and Milwaukee, which he had to win," Trump tweeted Friday.

Only half of Detroit's registered voters voted in the Nov. 3 election. Instead, it's likely the president was referring to out-of-balance precincts in the city.

About 70% of the city's absentee voter counting boards were out of balance by between one to four or more votes, Wayne County election officials said last week. The imbalances amounted to a few hundred votes total out of 250,000 cast in Detroit. 

Imbalanced pollbooks are more often an indicator of clerical error than they are voting fraud.

The lawsuit filed Thursday seeks a declaration from the court that Benson's decision to mail unsolicited absentee ballot applications to all of Michigan's 7.7 million voters was unconstitutional. It also criticizes Benson's decision to allow for online absentee ballot applications.

"Predictably, a flood of unauthorized, absentee ballots ensured the dilution of lawful votes and precipitated an unfair 2020 general election as the evidence adduced from election day at the TCF Center in Detroit, Michigan proves," the lawsuit said. 

Benson's decision to mail absentee ballot applications was criticized earlier this year by Trump and Republicans who worried Benson had overstepped her authority and the mailings would lead to fraud because Michigan's voter rolls contained dead and moved individuals who had not yet been removed from the file. 

Benson argued the application process, which includes signature verification, would remove any possibility that a moved or dead individual could vote. 

State Court of Claims Judge Cynthia Stephens ruled in August that Benson had the authority to issue the applications because she outranked "those local election officials over whom she has supervisory control." In September, a Court of Appeals panel upheld Stephens' ruling 2-1, noting Benson had "inherent" authority to mail the applications. 

Thursday's lawsuit also incorporates more than a dozen affidavits from individuals at the TCF Center who alleged GOP poll challengers were barred from meaningful observation and were also witness to irregularities in the way ballots were counted at the absentee counting boards. 

Among the claims are allegations of late-arriving, "unsecured ballots," ballots that were counted without a proper match to the qualified voter file, backdated ballots and unsecured access to the qualified voter file. 

The affidavits show "the unlawful practices provided cover for careless or unscrupulous officials or workers to mark choices for any unfilled election elections or questions on the ballot," the lawsuit said. 

Several of the affidavits listed in Thursday's suit were also present in other Republican-led lawsuits seeking a stop to the certification process. None of those lawsuits have so far been successful. 

Election officials have said at least 100 Republican poll challengers were in the room at all times, but on Nov. 4 some additional challengers were barred entry once COVID-19 capacity restrictions had been reached inside.

Additionally, election officials have said the claims of ballot irregularities among poll challengers reflect a lack of training and understanding regarding how absentee ballots are to be counted, checked against electronic pollbooks or duplicated in the case of military or ruined ballots that are otherwise unable to be fed through a tabulator. 

Chris Thomas, a former 36-year director of elections under Democratic and Republican Michigan secretaries of state, submitted a detailed affidavit earlier this month explaining much of what Republican affiants said they witnessed at the TCF Center. His testimony formed a large basis for a Wayne County Circuit judge's refusal to stop the Wayne County certification earlier this month.

Lastly, the lawsuit challenges money given to a Democratic-linked firm that helped hire election workers in Detroit and was funded through the Center for Tech and Civic Life, who lists Facebook founder Mark Zuckerberg as a contributor. 

A group of Michigan voters sued over the funding in early October, alleging Benson allowed "partisan operatives" to dole out millions of dollars in private money for get-out-the-vote initiatives in select Democratic cities and counties ahead of the Nov. 3 election.

Court of Claims Judge Christopher Murray, an appointee of Republican former Gov. John Engler, denied the group's request for immediate relief. 

The suit filed with the Michigan Supreme Court comes three days after the state high court denied an appeal in a separate case seeking an audit of Wayne County results and an immediate halt to certification there. 

In the 6-1 decision, Republican-nominated Justice Brian Zahra noted the claims were serious but last week's certification of Wayne County results and Monday's state certification made the request moot.

Republican-nominated Justice David Viviano wrote a dissenting opinion, noting the voting rights initiative passed in 2018 allowed any Michigan elector to request an audit but was silent on what types of audits could be requested, when they're conducted and what evidence an elector would have to show to obtain one. 

"Is it a mechanism to facilitate challenges to election results, or does it simply allow for a postmortem perspective on the election is handled?" Viviano said. 

Staff writer Craig Mauger contributed.