King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
28 There is no reason to repeat what the Court
Governor
Gretchen
Whitmer
already has stated regarding the legal merit
(@GovWhitmer), Twitter (Nov. 24 2020,
of Plaintiffs' claims under the Elections,
12:04 PM), https://perma.cc/22DF-XJRY.
Electors, and Equal Protection Clauses.
(See ECF No. 62 at Pg ID 3324-28.) The
briefs filed by the State Defendants and
Intervenor-Defendants
provide
further
detail as to why those claims, as well as
Plaintiffs' Due Process and Michigan
Election Code claims, are legally flawed
and why Plaintiffs and their counsel knew
or should have known this to be the case.
Plaintiffs asked this Court to enjoin the State
Defendants from sending Michigan's certified
results to the Electoral College (ECF No. 6 at Pg
ID 84-86); but as reported publicly, Governor
Whitmer had already done so before Plaintiffs
filed this lawsuit.29 Plaintiffs sought the
impoundment of all voting machines in Michigan
(id. at Pg ID 86); however, those machines are
owned and maintained by Michigan's local
governments, which are not parties to this lawsuit.
Mich. Comp. Laws §§ 168.37, .37a, .794a.
Plaintiffs demanded the recount of absentee
ballots (ECF No. 6 at Pg ID 85), but granting such
relief would have been contrary to Michigan law
as the deadline for requesting and completing a
recount already had passed by the time Plaintiffs
filed suit. Mich. Comp. Laws § 168.879. Further, a
recount may be requested only by a candidate. Id.
And while Plaintiffs requested the above relief,
their ultimate goal was the decertification of
Michigan's presidential election results and the
certification of the losing candidate as the winnerrelief not “warranted by existing law or a
nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new
law.” Fed.R.Civ.P. 11(b)(2).
29 See Governor Gretchen E. Whitmer, State
of Michigan: Office of the Governor,
Certificate of Ascertainment of the Electors
of the President and Vice President of the
United States of America (Nov. 23, 2020,
5:30 PM), https://perma.cc/NWS4-9FAB;
While courts do have the authority to grant
injunctive relief affecting conduct related to
elections, no case suggests that courts possess the
authority to issue an injunction of the scope
sought here. Plaintiffs' attorneys maintain that the
strongest case is Bush v. Gore, 531 U.S. 98 (2000).
There, however, the Supreme Court was asked
neither to order a recount nor to decertify Florida's
presidential election results. Instead, the Court was
asked to stop a recount ordered by the Florida
Supreme Court, which infringed the State's
legislatively enacted scheme. Bush, 531 U.S. at
532-33. Ultimately, the Court halted the Florida
recount of the presidential election to allow the
previously certified vote results to stand, id.,
which had declared President Bush the winner in
the State.30
30 Notably, this was a recount sought by a
candidate in accordance with Florida's
contest provisions. Bush, 531 U.S. at 528.
At the July 12 hearing, Plaintiffs' counsel pointed
for the first time to the Supreme Court's decision
in United States v. Throckmorton, 98 U.S. 61
(1878), as supporting this Court's authority to
take-it seems the attorneys are suggesting- any
equitable action in connection with the 2020
presidential election. (ECF No. 157 at Pg ID
5335.) Apparently Throckmorton's quotation of
the maxim “fraud vitiates everything” is a refrain
that has been oft-repeated on social media by
those who question the results of the 2020
presidential election and believe Former President
Trump should be declared the winner.31, 32 (ECF
No. 164-8.) The City is correct that Plaintiffs'
counsel's citation to Throckmorton is puzzling,
both because the case relates to a nineteenthcentury land grant and has nothing to do with
election law and because the Supreme Court held
that the grant could not be collaterally attacked on
the basis that the judgment was procured by fraud.
98 U.S. at 68. Simply put, the case does not
23
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