Michigan Judge Considering Request to Dismiss Election-Related Case

May 10, 2021 Updated: May 10, 2021

A judge in Michigan will rule next week on whether to dismiss a case alleging that fraud occurred in the 2020 election.

Judge Kevin Elsenheimer of the 13th Circuit Court heard arguments on the motion to dismiss on May 10 and will take about a week to decide whether to allow the case, Bailey v. Antrim County, to move forward.

Lawyers for Michigan Secretary of State Jocelyn Benson, a Democrat, and Antrim County are seeking to end the case because they argue that the plaintiff, voter William Bailey, has been given the relief he sought last year when filing a lawsuit.

The suit asked for a forensic examination of machines used in the county, a protective order to preserve records, and an independent audit. It was filed after officials in Antrim County falsely reported Democrat Joe Biden received more votes than Republican Donald Trump.

The examination took place last year. The team that conducted the examination asserted that Dominion Voting Systems software is flawed. Dominion and state and county officials have disputed the report from the examiners, primarily by attacking their credibility.

Elsenheimer also granted the protective order, while Erik Grill, a lawyer for Benson, alleged that an audit was completed already.

In a recent motion, Bailey sought an audit of machines in Antrim County townships, alleging that a recent assessment of Dominion software by analyst Jeffrey Lenberg uncovered “numerous error conditions” sufficient to warrant “an expert review of” source code for the company’s technology.

Grill argued that the plaintiff is trying to design his own custom audit.

“If every single voter had the right to concoct his own audit and had that performed, the audits would be endless,” he told the judge.

Citizens who feel their votes weren’t counted or elections were run improperly can petition for a special election, among other remedies, he said.

Matthew DePerno, Bailey’s lawyer, said he had submitted “substantial evidence” to the court that showed that manipulation of the tabulation machines was easy to carry out.

“We’ve shown how the actual fraud works,” he said. He disagreed with the state’s claim that an audit was carried out and noted a statewide hand recount didn’t inspect any ballots other than those cast in the presidential election.

Bailey and his attorney are concerned his ballot wasn’t counted in the election last year and he didn’t vote in an election last week “because he no longer trusts these voting machines,” DePerno said. “Bill Bailey is entitled to an actual audit of an election.”

Dominion didn’t immediately respond to a request for comment. The firm has said the examination of its machines in Antrim County was debunked by a report from analyst J. Alex Halderman, pointing to Benson’s statement that the analysis “affirmed the county’s official presidential election results were accurate and that unofficial results were initially reported incorrectly due to human error.”

Elsenheimer said he planned to go into the hearing not to make an immediate decision on the motion to dismiss or the motion for summary disposition. He plans to take until next week to deliver his ruling orally to the parties involved.

Elsenheimer earlier in the hearing rejected subpoenas that DePerno tried issuing to various townships. The attorney sought to conduct a forensic audit and review of information from the 2020 election, including all paper ballots, all system logs, and all vote tabulators.

A lawyer representing the townships argued that allowing the plaintiff to do so could violate agreements between election officials and Dominion, and could render the machines “unusable” in future elections. Grill charged that since the discovery period ended last month, the judge should block the subpoenas.

Elsenheimer ultimately agreed, telling the court that DePerno could have sought the information shortly after filing the lawsuit last year.

“The court believes at this point that the additional expense, annoyance, work associated with the nonparty motions would exceed the value of the discovery they would produce,” he said, ruling in favor of a motion to quash the subpoenas.

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