Judge rules against legal push targeting Michigan election in Antrim County

Craig Mauger
The Detroit News

What could be the final legal effort challenging Michigan's 2020 election suffered a significant setback Tuesday as a circuit court judge denied a lawsuit to contest the results in Antrim County.

Garnering national attention, William Bailey and his attorney, Matthew DePerno, waged a six-month fight in court focused on Antrim County, where administrative mistakes incorrectly showed Democrat Joe Biden ahead in initial tallies posted the morning after the Nov. 3 election.

Bailey and DePerno wanted 13th Circuit Court Judge Kevin Elsenheimer, a former Republican state lawmaker, to require an "independent and nonpartisan forensic audit" take place to examine the vote in the county.

But during a Tuesday hearing, Elsenheimer said state law allows Secretary of State Jocelyn Benson, a Democrat, to perform audits, and that there is no right granted in the law for the type of audit the plaintiff sought.

Antrim County Clerk Sheryl Guy talks about recent election problems while standing outside her office in Bellaire, Michigan.

"A petitioner ... does not get to choose his own audit criteria," Elsenheimer said at one point. "Rather the Legislature has given that authority ... to the secretary of state."

"The plaintiff’s claims in this case are moot," the judge added later. "No additional relief is available. And therefore, no claim has been stated."

Elsenheimer indicated that he expects his ruling to be appealed, wishing Bailey, DePerno and the Attorney General's office, which represented Benson, good luck with the case "going forward."

But Attorney General Dana Nessel said the ruling should be "the nail in the coffin for any remaining conspiracy theories surrounding the outcome of the Nov. 3 general election."

"Time and time again, people have filed frivolous lawsuits in an attempt to undermine the integrity of our democratic process in Michigan," Nessel said. "I applaud the court for correctly concluding that there was no relief that could properly be granted on the claims presented."

Benson described the ruling as the "the dismissal of the last of the lawsuits attempting to undermine democracy in furtherance of the Big Lie," referring to unsubstantiated claims that the 2020 election was stolen.

DePerno responded to the ruling on Twitter, saying, "Apparently the SOS (secretary of state) can conduct the audit in any way she determines even if she is actively part of the fraud."

Antrim County has been in the spotlight since the morning of Nov. 4, the day after Election Day.

The initial election results in the conservative northern Michigan county had Biden winning there by 3,260 votes with 62% of the overall total. Republican Donald Trump received 36%.

After realizing there were problems with the numbers, Antrim County Clerk Sheryl Guy's office canvassed the election results and reported the official tallies. Guy's office sent the official numbers to the Bureau of Elections at 6:35 a.m. on Nov. 7. Trump had actually won the county by 3,788 votes, 61%-37%, a 7,048-vote swing from the unofficial results.

The incorrect initial tallies were spurred by human errors — the failure to properly prepare ballot scanners and ballots themselves. After additions were made to certain local ballot designs in Antrim County, local officials didn't update all of the equipment, leading to jumbled initial results when the numbers were received by the software that handles the tallies.

The reasons for the problems and the incorrect unofficial results were quickly noticed and eventually fixed but led to a wave of conspiracy theories about Dominion Voting Systems, the technology used to tabulate votes in the 23,000-person county.

DePerno has repeatedly claimed that there was fraud in the election, becoming a frequent guest on conservative news channels. In a filing earlier this month, DePerno wrote there is a "strong presumption of ballot stuffing." That claim, like others in the case, has not been proven.

A hand count of the presidential race for every single ballot in the county showed Trump gaining 12 votes, a 0.07% shift from certified results. Elsenheimer noted the hand count and said Tuesday its findings were "largely consistent" with the official results in Antrim County.

But the judge added that his decision wasn't a statement that there were no problems in the county's elections.

"The clerk has admitted that there were challenges and problems in the elections," Elsenheimer said.

Guy, the Republican clerk in Antrim County, said she was thankful for the voters who "never gave up in me in my position, nor did they lose faith in my integrity in the 2020 election. 

"As long as I hold the office of the Antrim County clerk, I will always lead by providing full disclosure of the election process and will always uphold our democracy," Guy said. "I took the oath to uphold the Constitution of this great state and the United States and will never waiver."

The Antrim County court case has received much attention in the conservative media and even drawn recognition from Trump himself.

"The major Michigan Election Fraud case has just filed a bombshell pleading claiming votes were intentionally switched from President Trump to Joe Biden," Trump said in a May 10 statement. "The number of votes is MASSIVE and determinative."

Some supporters of the former president have been working to discredit the 2020 election in Michigan for six months. Trump lost the state by 3 percentage points or 154,000 votes.

His backers have collected more than a dozen court losses in suits about the Michigan election since Nov. 3, 2020.