Nessel: 9 investigated, none charged in Unlock Michigan probe

Beth LeBlanc
The Detroit News

Attorney General Dana Nessel said Wednesday she will file no criminal charges after videos surfaced last year showing unethical training practices among Unlock Michigan petition circulators. 

The Plymouth Democrat said her office examined evidence and interviews for potential charges against nine people — including opposition trackers who secretly filmed the circulators and trainers "but there simply is a lack of sufficient admissible evidence to bring criminal charges against anyone involved."

Boxes filled with a reported 539,384 petition signatures are delivered by Unlock Michigan to the Michigan Department of State Bureau of Elections in Lansing Friday, Oct. 2, 2020. The group is seeking to revoke Governor Gretchen Whitmer's ability to govern by emergency decree.

“Our investigation found clear evidence of misrepresentation by the petition circulators and questionable training by persons who recruited and were supposed to supervise paid circulators," the attorney general said. "However, those incidents were not in violation of any criminal statute.”

The Michigan Bureau of Elections has recommended the certification of the Unlock Michigan petition that would repeal a law underpinning many of Gov. Gretchen Whitmer’s executive orders issued early in the COVID-19 pandemic. The Board of State Canvassers is scheduled to meet Thursday after the Bureau of Elections said its review of a sample of signatures determined there were enough valid signatures to recommend certification.

Nessel's decision removed the "last obstacle" ahead of Thursday's Board of State Canvassers' meeting, Unlock Michigan spokesman Fred Wszolek said.  

"It's been a long time in coming," he said.

Keep Michigan Safe said it was disappointed by Nessel's decision and called on the Board of State Canvassers to act instead.

“The Attorney General’s findings make it more important than ever that the Board of Canvassers and Secretary of State should investigate the unethical and illegal practices of Unlock Michigan before considering certification,” said Mark Fisk, a spokesman for the group.

Nessel referenced specific allegations against trainer Erik Tisinger, who was caught on video by opposition group Keep Michigan Safe advising prospective gatherers to tell people their signatures would simply help put the issue "on the ballot." Unlock Michigan has said for months that it would go to the Republican-led Legislature to seek approval, which would allow the proposal to become law and avoid a veto by Whitmer.

An example of Unlock Michigan's proposed petitions for repealing a 1945 law that gives governors the ability to take unilateral actions under declared states of emergency.

Tisinger also said they could try to collect signatures in privately owned parking lots and act like they didn't know it's against the law if approached by police, according to the video. He told those he was training to “act stupid if approached by police about trespassing.”

Tisinger's actions were "unethical, possibly even immoral," Nessel said. "They do not rise to a level that would support criminal charges.”

Nessel said her office also investigated a hired opposition tracker, lawyer Gretchen Hertz, who approached circulators in Livingston County and on three occasions attempted to sign for her "husband" to test their responses.

Hertz and Richard Williamson, who filmed Tisinger, were employees of Farough & Associates, a Democratic consulting firm that had been hired by the initiative's opponent, Keep Michigan Safe.

Nessel said Wednesday there are no state laws prohibiting a circulator from making false statements or misrepresentations to voters signing a petition, nor is there a ban on a circulator advising individuals that they could sign their spouse's name. However, the petition itself includes language warning of a misdemeanor charge for circulators "knowingly making a false statement" on the certificate.

State law, Nessel said, does ban a voter from signing someone else's name on a petition. 

Hertz, Nessel said, would not agree to an interview with police and her video likely would not have been able to be used as evidence in court. 

"The individual who recorded instances of potentially criminal behavior crossed the line between simply witnessing and recording events into criminal conduct," Nessel said. 

"Hertz's conduct created a significant hurdle to pursuing criminal charges in the Unlock Michigan case," she said. 

Nessel began an investigation into the petition effort in September. Unlock Michigan's Wszolek has said the group wouldn't use signatures turned in by the company that employed Tisinger. 

The Michigan Bureau of Elections on Monday recommended the certification of the petition, estimating that, based on a 506 signature sample, Unlock Michigan had gathered about 460,358 valid signatures. Unlock Michigan needed 340,047 signatures to obtain certification.

The signatures rejected by the bureau were determined invalid because of signer address and date errors. 

Aside from the 506 signature sample, the bureau said it rejected 348 petition sheets containing 1,614 signatures because of issues with the circulator sheet, jurisdiction errors or signer errors. 

The Unlock Michigan petition seeks to repeal the 1945 Emergency Powers of the Governor Act, which underpinned dozens of her executive orders during the first seven months of the pandemic.  

On Oct. 2, the Michigan Supreme Court upended the law, ruling that it was an unconstitutional delegation of legislative authority. Shortly after the high court ruling, Whitmer began issuing epidemic orders through her state health department that largely carried the same weight as her executive orders. 

Opposition group Keep Michigan Safe has also filed in the state Court of Claims seeking to stop the Board of State Canvassers from considering the petition because it never properly promulgated rules that would govern their certification.