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