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.
They submitted sworn affidavits from several witnesses attesting to the alleged election fraud as well as an affidavit by former Michigan Secretary of State Ruth Johnson, who, after reviewing the allegations and evidence from the opposition, said that court intervention was necessary and an audit was warranted.
But in his opinion, Timothy 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.”
“In addition to being an unwarranted intrusion on the authority of the Legislature, such an audit would require the rest of the County and State to wait on the results. Remedies are provided to the Plaintiffs. Any unhappiness with MCL 168.31a calls for legislative action rather than judicial intervention,” he added.
During a hearing on Wednesday, 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 under Michigan’s Constitution. He also asked the judge a preliminary injunction to block the certification of the election and a protective order to “preserve and protect all evidence relevant to this case.”
Kallman, who is the senior counsel of Great Lakes Justice Center, argued that voters would not be able to obtain an audit after the election results have been certified.
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.
Kenny was persuaded by that argument, saying that the Michigan Legislature amended MCL 168.31a states the secretary of state and appropriate county clerks may conduct election audits.
The judge said he was also not persuaded by the plaintiffs’ evidence of election fraud, saying that the “the Defendants offered a more accurate and persuasive explanation of activity” within the ballot counting center.
He said most of the individuals who provided sworn affidavits were general in their statements and the allegations were refuted by an affidavit by State Elections Director Christopher Thomas, which was filed by the defendants.
“Ms. Jacob’s information is generalized. It asserts behavior with no date, location, frequency, or names of employees. In addition, Ms. Jacob’s offers no indication of whether she took steps to address the alleged misconduct or alter any supervisor about the alleged voter fraud. Ms. Jacob only came forward after the unofficial results of the voting indicated former Vice President Biden was the winner in the state of Michigan,” Kenny said, referring to the affidavit of City of Detroit election worker Jessy Jacob, one of the seven witnesses in the lawsuit.
Jacob alleged that she was instructed to backdate mail ballots and not to look for any deficiencies with the ballots. She also claimed she was told not to ask for identification when voters arrived to vote in person.
“On November 4, 2020, I was instructed to improperly pre-date the absentee ballots receive date that were not in the [Qualified Voter File (QVF)] as if they had been received on or before November 3, 2020. I was told to alter the information in the QVF to falsely show that the absentee ballots had been received in time to be valid. I estimate that this was done to thousands of ballots,” Jacob stated in her affidavit.
According to Thomas, the ballots were “pre-dated” because “a data field inadvertently left blank during the initial absentee ballot verification process,” and Jacob was directed “not to search for or compare signatures because the task had already been performed by other Detroit city clerks at a previous location,” the judge said.
He also said the other plaintiffs’ affidavits were also “rife with speculation and guess-work about sinister motives.”
The judge also denied the request for the protective order.
The Great Lakes Justice Center did not immediately respond to The Epoch Times’ request for comment.
This case is cited Cheryl A. Costantino and Edward P. McCall, Jr. v. City of Detroit (20-014780-AW).