King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
sinister language to describe an event does
Candidate, ” ECF No. 6 at Pg ID 902 ¶ 91
not make that event sinister, wrongful,
(quoting Bomer Aff., ECF No. 6-3 at Pg ID
unlawful, or fraudulent.
1008-10) (emphasis added).)
c) Counsel's failure to inquire into the
evidentiary support for factual assertions
Plaintiffs' counsel failed to ask questions of the
individuals who submitted affidavits that were
central to the factual allegations in the pleadings.
To support the allegation that Defendants
permitted “election workers [to] change votes for
Trump and other Republican candidates, ”61
Plaintiffs point to one thing-namely, Articia
Bomer's affidavit (“Bomer Affidavit”):
61 (ECF No. 6 at Pg. ID 942 ¶ 190(d) (citing
IIB).)
I observed a station where election
workers were working on scanned ballots
that had issues that needed to be manually
corrected. I believe some of these workers
were changing votes that had been cast for
Donald Trump and other Republican
candidates.62
Per the Amended Complaint, this is the only
evidence and only “eyewitness testimony of
election workers manually changing votes for
Trump to votes for Biden.” (ECF No. 6 at Pg ID
902 ¶ 91.)
62 (See IIB - “Election Workers Fraudulently
Forged, Added, Removed or Otherwise
Altered Information on Ballots, Qualified
Voter List and Other Voting Records, ”
Subsection 4 - “Election Workers Changed
Votes for Trump and Other Republican
Candidate, ” ECF No. 6 at Pg ID 902 ¶ 91
When the Court asked whether an affiant's belief
that something occurred constitutes evidentiary
support for that occurrence, Plaintiffs' counsel
stated: “[I]f you see it, that would certainly help
you to form a belief.” (ECF No. 157 at Pg ID
5450.) The Court then asked: “[D]id anyone
inquire as to whether or not [] Bomer actually saw
someone change a vote?” (Id. at Pg ID 5452.) The
Court was met with silence. (Id.)
As an initial matter, an affiant's subjective belief
that an event occurred does not constitute
evidence that the event in fact occurred. But more
importantly, during the hearing, Plaintiffs' counsel
conceded that the Bomer Affidavit had evidentiary
value only if Bomer saw election workers
manually changing votes for Former President
Trump to votes for President Biden. Yet, without
asking Bomer if she saw such manual changes,
Plaintiffs' counsel submitted her affidavit as
evidentiary support that such manual changes in
fact occurred. This alone fell short of counsel's
obligation to conduct a reasonable inquiry and is
the very laxity that the sanctions schemes are
designed to penalize.
And Plaintiffs' counsel's failure to ask this material
question-when paired with their affirmative
decision to label Bomer's testimony as “eyewitness
testimony of election workers manually changing
votes”-evinces bad faith. Plaintiffs' counsel may
not bury their heads in the sand and thereafter
make affirmative proclamations about what
occurred above ground. In such cases, ignorance is
not bliss-it is sanctionable.
(quoting Bomer Aff., ECF No. 6-3 at Pg ID
1008-10) (emphasis added).)
62 (See IIB - “Election Workers Fraudulently
Forged, Added, Removed or Otherwise
Altered Information on Ballots, Qualified
Voter List and Other Voting Records, ”
Subsection 4 - “Election Workers Changed
Votes for Trump and Other Republican
d) Counsel's failure to inquire into evidentiary
support taken from other lawsuits
As evidentiary support in this case, Plaintiffs'
counsel attached affidavits to their pleadings that
were submitted in two previously filed electionchallenge lawsuits without engaging in a
reasonable inquiry as to their contents.
33
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