King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
Because ascertaining whether Plaintiffs' counsel
committed any Rule 11(b) (2) or (3) infraction
does not turn on the veracity of the affiants and the
Court obtained the information it needed during
the hearing and via the sanctions briefing, an
evidentiary hearing is of no use.48
48 Plaintiffs' attorneys complain that the Court
focused on only a limited number of
affidavits at the July 12 motion hearing,
when more were laced throughout their
960-page Amended Complaint. (ECF 157
at Pg ID 5450-51.) However, as the Court
noted at the motion hearing, the affidavits
focused on were often the only evidence
cited to support key factual assertions in
Plaintiffs' pleadings. (Id. at Pg ID 5358,
5410, 5420, 5428, 5435, 5448, 5452.) And,
as discussed below, all of the affidavits the
Court references in this Opinion & Order's
Rule 11(b)(3) analysis were in fact the only
pieces of evidence offered to support the
relevant factual allegation.
a) Counsel's failure to present any evidentiary
support for factual assertions
Plaintiffs' counsel failed to present any evidence to
support their allegation of “illegal double voting.”
(See ECF No. 6 at Pg ID 903 ¶ 93.) To support this
factual assertion, Plaintiffs pointed to a single
piece of “evidence”: the affidavit of Jessy Jacob
(“Jacob Affidavit”).49 That affidavit states in part:
“I observed a large number of people who came to
the satellite location to vote in-person, but they
had already applied for an absentee ballot.”50
(ECF No. 6-4 at PDF Pg 37 (emphasis added).)51
Of course, applying for an absentee ballot is not
evidence that someone voted via an absentee
ballot, and when the Court highlighted this lack of
evidence as to “double voting” during the hearing,
Plaintiffs' counsel responded: “I think there's
inferences that can be drawn, and it should not
shock this Court that somebody could show up,
after having asked for an absentee ballot ... and
then show up and vote again.” (ECF No. 157 at Pg
ID 5454-55 (emphasis added).)
49 (ECF No. 6 at Pg. ID 942 ¶ 190(f) (citing
IIC); see IIC - “Additional Violations of
Michigan Election Code That Caused
Ineligible, Illegal or Duplicate Ballots to
Be Counted, ” Subsection 1 - “Illegal
Double Voting, ” ECF No. 6 at Pg ID 903 ¶
93 (referencing Jacob Aff., ECF No. 6-4 at
PDF Pg 36-38).)
50 Jacob does claim that people came to vote
in person at the satellite location where she
worked who had already applied for an
absentee ballot, and that those individuals
voted
without
returning
the
mailed
absentee ballot or signing an affidavit that
the ballot had been lost. (ECF No. 6-4 at
PDF Pg 37 ¶ 10.) Michigan law makes it a
felony to vote both in person and absentee.
See Mich. Comp. Laws § 168.769(4). Of
course, Jacob does not state that these
individuals voted in person and absentee.
As such, her affidavit in fact does not
plausibly support “illegal double voting.”
(ECF No. 6 at Pg ID 903.)
51 Some of the documents filed by the parties
contain illegible docket headers. In such
instances, the Court references the “PDF”
page numbers instead of the “Page IDs.”
It does not shock the Court that a Michigan
resident can request an absentee ballot and
thereafter decide to vote in person. Indeed,
Michigan law says that voters can. Mich. Comp.
Laws § 168.769(1) (“An absent voter may vote in
person within his or her precinct at an election,
notwithstanding that he or she applies for an
absent voter ballot and the ballot is mailed or
otherwise delivered to the absent voter by the
clerk” if, “[b]efore voting in person, ” “the absent
voter [] return[s] the absent voter ballot.”). But the
Court is concerned that Plaintiffs' attorneys
believe that a Michigan resident's choice to do so
serves as circumstantial evidence that the
Michigan resident “double voted.” It does not.
Inferences must be reasonable and come from
facts proven, not speculation or conjecture. United
States v. Catching, 786 Fed.Appx. 535, 539 (6th
29
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