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Wayne County judge rejects latest request for election audit

A Wayne County judge on Tuesday denied the latest request for an audit of the county's election results, saying the court has no authority under state law to order the county clerk to perform an audit, as requested by Republican poll challengers.

Wayne County Circuit Judge Timothy Kenny reasoned that the poll challengers' request for an audit would "properly" be directed to the Michigan Secretary of State, who was given the responsibility by the state Legislature for supervising county clerks in the performance of election audits. 

"This court finds no legal authority that permits the Wayne County Clerk to conduct an audit of Wayne County election results or that separates that audit from the oversight of the Secretary of State," Kenny wrote. 

Judge Timothy Kenny of Wayne County Circuit Court

He recognized the plaintiffs' right to an audit under the state Constitution but "(t)his court concludes that the Secretary of State is the one to carry out that audit," under state law. 

"Since the Secretary of State (Jocelyn Benson) has made a public commitment to do an audit of the Wayne County vote, plaintiffs' motion for the audit is premature," Kenny wrote. 

He added that if Benson were to not follow through with the audit, the complaining poll challengers could file a petition with the Michigan Court of Claims, requesting mandamus relief. 

Democratic President-elect Joe Biden won Michigan by 154,000 votes over Republican President Donald Trump. The state's results were certified by bipartisan canvassing boards in all 83 counties and by the State Board of Canvassers last month. 

The poll challengers, represented by the Great Lakes Justice Center, had requested an independent audit of the Wayne County election result based on alleged restrictions on poll challengers, late-arriving absentee ballots and workers for the clerk's office who encouraged early voters to cast their ballots for Biden and Democrats.

Detroit officials have refuted each of the claims, which have been addressed multiple times in other lawsuits, legislative hearings and press conferences.

Kenny previously denied a 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 the week of the election.

He also refused an earlier request for an audit prior to certification by the Wayne County Board of Canvassers.

Several lawyers for defendants in the case had asked the judge not to grant the latest audit request, arguing it would give Trump's campaign a small success it could tweet to followers and further sow distrust in the system. 

Detroit lawyers urged Kenny to reject the poll challengers' latest motion, arguing what they were really seeking was to undermine public confidence in the vote.

"There’s nothing new here," Detroit lawyer David Fink argued. "This is just a warmed over argument repeated again now to have another bite at the apple. But it's not a bite at the judicial apple. It’s a bite at the apple of public confidence.”

David Kallman, a lawyer for the poll challengers in the "Costantino" case, argued they had the right to demand an audit under a 2018 constitutional amendment.

In addition, he argued a state Supreme Court opinion in November supported his request, noting three Republican-nominated justices argued the courts should address the rule where it is silent on the type and time period of the audit promised in the Michigan Constitution. 

"What we’re asking for is what’s clear under this statute, is that the county clerk perform the audit under the direction and supervision of the secretary of state," Kallman said. 

The poll challengers wanted the audit completed before Dec. 14, the date that Michigan's electors are set to meet to cast their votes in the Electoral College. 

Kenny concluded he could find no guidance in state law on the timing of any constitutional or statutory audit performed by the Secretary of State, saying the Legislature left such details to the secretary's discretion. 

mburke@detroitnews.com