A Michigan judge last week constricted the scope of a previously widening election lawsuit to its epicenter: Antrim County.
Secretary of State Jocelyn Benson will not be required to turn over her husband’s personnel file, all election-related communications with the state Legislature, any media-related Freedom of Information Act requests, emails with big tech companies or a full accounting of statewide election spending on ballot boxes in 2020.
Additionally, subpoenas to various local clerks for testimony and forensic election audits in Macomb, Grand Traverse, Barry and Livingston counties were quashed by Antrim County Circuit Judge Kevin A. Elsenheimer.
The legal challenge began with claims of possible election fraud that centered on tabulation machines and software after election officials in Republican-leaning Antrim County erroneously reported President Joe Biden as the local winner following the Nov. 3 presidential election — former President Donald Trump actually won there. The lawsuit eventually transformed into a “fishing expedition,” according to assistant prosecutors with the Attorney General’s Office.
“The plaintiff must have more than mere conjecture, more than speculation, to support its request to discover information from these counties,” the judge said while reversing the clerk subpoenas. “Without saying, the requiring of these (counties) to comply with requests like this would indeed be burdensome, would be tantamount to a fishing expedition.”
William Bailey, a Central Lake Township resident, in November filed a lawsuit claiming a violation of his civil rights based on election errors. Broader implications of faulty Dominion Voting Systems election software and machines drew the Secretary of State’s Office to join the lawsuit as a defendant. This followed Elsenheimer granting Baileys request to conduct a forensic review of Antrim County’s election and software.
Bailey’s attorney, Matthew DePerno, has since accused the state of withholding emails and other information it had previously been ordered by the judge to share; and the state claimed DePerno was avoiding the scheduling of depositions with his expert witnesses.
As time progressed, the two sides were brought to a stalemate, communication broke down and a series of motions were presented to the judge regarding what information was due and when.
Elsenheimer on Monday ruled that any pre-trial answers to questions or evidence exchanged must now “pertain to Antrim County and not be generalized to something larger like the state of Michigan.”
According to the the secretary of state’s office and Antrim County Clerk Sheryl Guy, the election night reporting errors were due to “human error.” The tabulators were programmed to read the ballot’s darkened ovals and match those to corresponding candidates and issues, but ballot changes occurred in the lead-up to election night.
The clerk said her staff updated the voting machines in the respective precincts where changes occurred but failed to update all of tabulators countywide. Consequently, the system translated some votes for the wrong candidates.
The incorrect results were identified the morning after the election quickly pulled down from the county website. A hand count of the precincts revealed Trump won with nearly 57% of the vote.
The Antrim County clerk admitted to the County Commission that she had deleted some election files during her effort to correct the errors. The plaintiff in the lawsuit attempted to use this admission to request election audits in several other counties, whether or not they used similar voting software or machines.
“We cannot say that the election conducted in Antrim County was fair or proper without samples from other counties,” DePerno argued. “And that is primarily because Sheryl Guy deleted these files.”
DePerno said his experts, some of whom were given an opportunity to audit Antrim election machines and results, determined county voting systems are on a network that allows communication between the counties and state election officials.
“We should be entitled to access other counties to see how their system works, and to see how those systems communicated with Antrim County,” DePerno said.
The judge determined claims that any deleted logs or files had anything to do with internet communications was conjecture and theory and didn’t justify the burden the forensic analysis.
Elsenheimer did question Antrim County attorney Haider A. Kazim as to why the county only performed a hand recount of the presidential election, rather than all elections in the county. Kazim deferred to the Secretary of State’s attorney, Assistant AG Erik Grill, who indicated the decision was based on workload.
“I have been informed that the reason for that was to safeguard the public confidence in the election in light of a large quantity of misinformation that was circulating about the presidential results in Antrim County following the unofficial reporting error,” Grill said. “Every single hand count took time and for example it took us a full day just to do the one presidential race.”
Even after the recounts, not all of the individual precincts’ poll tapes matched the final vote report, according, J. Alex Halderman, a computer security and systems specialist and professor at the University of Michigan, whom the secretary of state hired to conduct his own election audit. He released his report entitled “Analysis of the Antrim County, Michigan November 2020 Election Incident,” which outlined procedural and computer-related flaws.
“The final results match the poll tapes printed by the individual ballot scanners, and there is no evidence that the poll tapes are inaccurate, except for in specific precincts where particular circumstances I explain affected small numbers of votes, mainly in down-ballot races,” Halderman wrote. “These remaining errors affect too few votes to change the outcome of any contest but the Central Lake Village marijuana retailer initiative, for which the final reported outcome is potentially incorrect due to the omission of a single vote because of a separate human error.”
Halderman blamed the election night debacle on the “mishandling of last-minute ballot design changes,” but said it’s “unlikely to have occurred widely in Michigan during the 2020 election.”
“Although vulnerabilities in election technology are well documented, the Antrim County incident was not caused by a security breach,” he said. “There is also no credible evidence that it was caused deliberately.”
The secretary of state and Antrim County filed a motion on April 9 requesting the judge dismiss the case. Those arguments are scheduled to be heard on May 10, a day prior to a scheduled settlement conference.
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