Michigan Court Denies Appeal of Judge’s Order in Lawsuit Seeking Election Audit

November 17, 2020 Updated: November 17, 2020

The Michigan State Court of Appeals on Nov. 16 denied an emergency appeal filed by a group that sought a court order to audit the 2020 election.

Michael Riordan, the presiding judge on the appeals court, wrote that the appeal request “is DENIED for failure to persuade the Court of the existence of manifest error requiring reversal.”

The Great Lakes Justice Center on Monday appealed a Wayne county judge’s order that denied a request for an audit of the 2020 election and called to block the certification of the election results.

Center filed the appeal with the state of Michigan Court of Appeals on Monday calling for an immediate reversal of the order issued by Wayne County Circuit Court Judge Timothy Kenny.

“The trial court’s failure to enforce the Michigan Constitution and state election laws is reversible error that is so manifest that an immediate reversal of the judgment or order appealed from should be granted without formal argument or submission,” the appeal states.

The Wayne County Board of Canvassers is scheduled to vote on certifying the county’s election results at 5 p.m. on Tuesday. The appellees requested for the motion to be addressed as an emergency to prevent the certification.

The appeal cites several legal factual errors the lower court allegedly committed, including that Kenny declined to enforce the language of the state Constitution, which permits voters to request an audit of the election. The appeal also points out that the judge held against the plaintiffs the fact that they did not attend a pre-election walk-through.

“However, neither the Plaintiffs nor their witnesses were informed of this meeting. It is impossible to attend a meeting that a person is not made aware of and has no knowledge that it is being held. Yet, the trial court holds their non-attendance against them in his decision,” a press release accompanying the appeal states.

The lawsuit was brought by two poll challengers—Cheryl Costantino and Edward McCall—who are alleging that election officials allowed various fraudulent processing of votes, including telling poll workers to backdate ballots, not verify signatures on absentee ballots, ignore signature mismatches, and push through ballots despite questionable validity.

During a hearing last week, David Kallman, the counsel for the plaintiffs, told the judge that voters are “entitled to [an] audit” of the results of an election under a constitutional amendment in Michigan’s Constitution.

In his opinion, Kenny, chief judge of the Third Judicial Circuit Court of Michigan, said it was not up to the court to intervene in the process as it would be an act of “judicial activism.”

“It would be an unprecedented exercise of judicial activism for this Court to stop the certification process of the Wayne County Board of Canvassers,” Kenny said. “The Court cannot defy a legislatively crafted process, substitute its judgment for that of the Legislature, and appoint an independent auditor because of an unwieldy process.”

David Fink, the lawyer for one of the defendants, the City of Detroit, argued that the case was “not ripe for adjudication” because there is no remedy at law until the votes have been certified.

“The courts are not supposed to get involved in the middle of an election, in the middle of a count,” Fink told the judge. “We have a whole detailed statutory procedure and that statutory procedure is set up so that people’s votes count.”

He argued that an audit is only available after an election when initiated by the secretary of state, while citing a Michigan law.

Janita Kan contributed to this report.

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