King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
40 (See IIC - “Additional Violations of
v. Twombly, 550 U.S. 544, 556 (2007)
Michigan Election Code That Caused
(citation, internal quotation marks, brackets
Ineligible, Illegal or Duplicate Ballots to
and ellipsis omitted).
Be Counted, ” Subsection 2 - “Ineligible
Ballots
Were
Counted-Some
Multiple
Times, ” ECF No. 6 at Pg ID 903 ¶ 94
(referencing Helminen Aff., Waskilewski
Aff., Mandelbuam Aff., Rose Aff., Sitek
Aff., Posch Aff., Champagne Aff., and
Bomer Aff.).)
41 Thomas goes on to explain: “To an
untrained observer[, ] it may appear that
the ballot is being counted twice, however,
the election worker will have cancelled the
appropriate count on the computer screen.
Any human error in the process would be
identified during the canvass. If not, the
number of voters at the absent voter
counting board would be dramatically
different than the number of counted
votes.” (ECF No. 78-14 at Pg ID 3772 ¶
20.)
At the July 12 hearing, Kleinhendler told the
Court that it was “completely irrelevant” whether
the conduct Plaintiffs claimed was violative of
Michigan law was actually unlawful. This is
because, counsel argued, the conduct “raise[d] a
suspicion” and what was significant was the mere
chance for misfeasance to occur.42 (ECF No. 157
at Pg ID 5484.) But litigants and attorneys cannot
come to federal court asserting that certain acts
violate the law based only upon an opportunity
for-or counsel and the litigant's suspicions of-a
violation.
42 To make his point, Kleinhendler used the
c) Counsel's failure to inquire into the
requirements of Michigan election law
Plaintiffs alleged that certain acts or events
constituted violations of the Michigan Election
Code when, in fact, Plaintiffs' counsel failed to
make any inquiry into whether such acts or events
were in fact unlawful.
In light of Plaintiffs' allegation that Defendants
violated the Michigan Election Code by
permitting ballots to arrive at the TCF Center “not
in sealed ballot boxes, ” “without any chain of
custody, ” and “without envelopes”43 and because
the Amended Complaint does not identify a
provision in the Michigan Election Code
prohibiting the actions about which Plaintiffs
complain44, the Court asked Plaintiffs' attorneys at
the July 12 hearing about their understanding
regarding Michigan's ballot-bin requirements. (Id.
at Pg ID 5478-79.) Counsel's response: “[W]e do
not purport to be experts in Michigan's process, ”
(id. at Pg ID 5479-80), and, they argued, the
affidavit that supported this allegation-that of
Daniel Gustafson (“Gustafson Affidavit”)-was
copied and pasted from Costantino (id.). These
evasive and non-responsive answers to the Court's
direct questions amount to an admission that
Plaintiffs' counsel did not bother to find out what
the Michigan Election Code requires, and whether
the acts alleged to constitute violations of the
Michigan Election Code were actually prohibited.
analogy of handing someone an open can
43 (ECF No. 6 at Pg. ID 879 ¶ 15(F), 943 ¶
of Coke and assuring the recipient that a
190(k) (citing IIC); see IIC -“Additional
drink had not been taken from it. (ECF No.
Violations of Michigan Election Code That
157 at Pg ID 5484.) But it is just as
Caused Ineligible, Illegal or Duplicate
plausible that the can had been sipped
Ballots to Be Counted, ” Subsection 7 -
before delivery, as it is plausible that it had
“Election Workers Accepted Unsecured
not been. A “pleading must contain
Ballots, without Chain of Custody, after
something more than a statement of facts
8:00 PM Election Day Deadline, ” ECF
that merely creates a suspicion of a legally
No. 6 at Pg ID 905-06 ¶ 100 (quoting
cognizable right of action.” Bell Atl. Corp.
Gustafson Aff., ECF No. 64 at PDF Pg 4849).)
26
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