King v. Whitmer
CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021)
ballot). It seems to the Court, then, that Plaintiffs'
counsel knew or should have known that this
conduct did not violate existing state law.
35 (ECF No. 6 at Pg ID 879 ¶ 15(A), 943 ¶
190(k) (citing IIC).)
with No Postmark on Ballot Envelope, ”
ECF No. 6 at Pg ID 904 ¶ 96 (referencing
Brunell Aff., ECF No. 6-3 at PDF Pg 3536; Spalding Aff., ECF No. 6-3 at PDF Pg
61-62; and Sherer Aff., ECF No. 6-3 at
PDF Pg 126-28).)
36 (See IIC - “Additional Violations of
38 When one searches through the unindexed
Michigan Election Code That Caused
affidavits attached as Exhibit 3 to Plaintiffs'
Ineligible, Illegal or Duplicate Ballots to
pleading and eventually locates these
Be Counted, ” Subsection 7 - “Election
affidavits, however, one finds that none of
Workers Accepted Unsecured Ballots,
the affiants state that ballots without
without Chain of Custody, after 8:00 PM
postmarks were counted. (See ECF No. 6-3
Election Day Deadline, ” ECF No. 6 at Pg
at PDF Pg 35-36, 61-62, 126-28.)
ID 906 ¶ 101 (referencing Meyers Aff.,
ECF No. 6-3 at PDF Pg 130-31).)
The Amended Complaint further claims that
Michigan election laws were violated because
ballots that lacked postmarks were counted.37, 38
But when the Court asked Plaintiffs' attorneys
whether Michigan absentee ballots must be
received through U.S. mail-and therefore
postmarked-to be counted, counsel went on about
not being able to “rely on the Secretary of State's
guidance.” (ECF No. 157 at Pg ID 5468.)
Noticeably absent from that response, however,
was an answer to the Court's question. Tellingly,
when the City's counsel stated that ballots are not
required to be mailed or postmarked in Michiganas they “are often handed in by hand”; “[via]
boxes in front of clerk's offices by hand”; and
sometimes “right across the desk in the clerk's
office” (id. at Pg ID 5470)- Plaintiffs' counsel did
not object to or refute this recitation of the law.
See Mich. Comp. Laws § 168.764a (explaining
that absentee ballots may be delivered
“[p]ersonally to the office of the clerk, to the
clerk, or to an authorized assistant of the clerk, or
to a secure drop box”).
37 (ECF No. 6 at Pg. ID 879 ¶ 15(C), 942 ¶
190(h) (citing IIC); see IIC -“Additional
Violations of Michigan Election Code That
Caused Ineligible, Illegal or Duplicate
Ballots to Be Counted, ” Subsection 4 “Election Officials Counted Ineligible
To support the allegation that Defendants
“count[ed] ineligible ballots-and in many casesmultiple times, ” in violation of Michigan election
law, 39 the Amended Complaint cites to several
affidavits in which the affiants state that batches of
ballots were repeatedly run through the vote
tabulation machines40. When the Court asked
whether Plaintiffs' counsel inquired as to why a
stack of ballots might be run through tabulation
machines more than once, Plaintiffs' counsel did
not answer the Court's question and instead
proclaimed that “ballots are not supposed to be put
through more than once. Absolutely not. That
would violate Michigan law.” (ECF No. 157 at Pg
ID 5462.) But bafflingly, Plaintiffs' counsel did not
offer a cite to the law violated, and counsel did not
identify such a law in the Amended Complaint
either. However, the affidavit of Christopher
Thomas, Senior Advisor to the Detroit City Clerk,
filed in Costantino (“Thomas Affidavit”),
explained that “ballots are often fed through the
high-speed reader more than once” “as a routine
part of the tabulation process.” (ECF No. 78-14 at
Pg ID 3772 ¶ 20.) And he detailed a myriad of
reasons why this may be necessary, including “if
there is a jam in the reader” or “if there is a
problem ballot (e.g., stains, tears, stray markings, .
. . etc.) in a stack.”41 (Id.)
39 (ECF No. 6 at Pg. ID 879 ¶ 15(B), 942 ¶
190(g) (citing IIC).)
Ballots with No Signatures or No Dates or
25
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