Plaintiffs to a lawsuit filed Sunday in Michigan asked a federal judge to block a request issued by Secretary of State Jocelyn Benson’s office telling county clerks to destroy certain election data and software by Dec. 7.
U.S. District Judge Robert J. Jonker quickly denied the request for a restraining order Monday, citing a lack of timeliness, and failure to outline a clear complaint or properly certify some of the arguments made by plaintiffs who submitted affidavits with the lawsuit.
The lawsuit is filed by Barry County Sheriff Dar Leaf, who’s previously criticized Gov. Gretchen Whitmer over coronavirus restrictions and shared a stage with men now accused of plotting Whitmer’s kidnapping, and other Barry County voters, most of whom raised concerns that their votes may not have been counted properly due to the use of a Sharpie marker to complete their ballots at the polling locations.
Michigan’s 2020 general election was certified Nov. 23 with one subsequent recount requested in an Eaton County state House race. The deadline to challenge election results and request a recount expired on Nov. 30.
With the election certification process nearly completed, the state Bureau of Election on Dec. 1 issued a customary letter to clerks in each of Michigan’s 83 counties ordering them to delete electronic election files and related software, including electronic poll book data, by Dec. 7.
“The (electronic pollbook) software and associated files must be deleted from all devices by the seventh calendar day following the final canvass and certification of the election (November 30, 2020), unless a petition for recount has been filed and the recount has not been completed, a post-election audit is planned but not yet been completed, or the deletion of the data has been stayed by an order of the court or Secretary of State,” the Dec. 1 memo to Michigan clerks said.
The SOS has for years sent similar instructions following elections.
Judge Parker first questioned whether the lawsuit and request for a restraining order to halt the SOS request even constituted a formal legal complaint.
“There is nothing styled as a complaint,” he wrote in the denial. “The most recent application asserts ... ‘multiple violations’ both of Michigan election law, as well as the Election and Electors Clauses and Equal Protection Clause of the U.S. Constitution.
“But the application contains no specific causes of action ... Rather, it contains only introductory comments.”
The accompanying affidavits filed by plaintiffs described “the individual’s experience while voting in the November election but do not show an “immediate and irreparable” injury, the court said.
Several Barry County residents who signed onto the lawsuit with Sheriff Dar submitted affidavits expressing concern that voting locations had residents complete ballots with black markers, which they said “bled” through the ballots raising concerns if and how the votes were recorded.
“I went to the booth to vote and noticed the marker bleed to the other side of my ballot and it looked like a Dalmatian with dots everywhere,” Jada Chadwick said in an affidavit. “I turned my ballot in and it went into the counter but I didn’t know if it was accepted.”
Leaf and the other plaintiffs argue the SOS’s planned election audit is not expansive or thorough enough.
“The state of Michigan is conducting a very limited audit of cities, townships, and municipalities,” the lawsuit said. “Further, the audit will simply recount potentially fraudulent, or illegal ballots, and will not reveal the systematic attempts at mass fraud throughout (Michigan and the U.S.) Moreover, the evidence mandated to be deleted or destroyed will not be available for forensic examination once destroyed preventing civil and/or criminal investigations.”
The SOS argues the data it’s requested be destroyed is unnecessary for auditing purposes.
“High ranking members of the (President Donald Trump) Administration, including Attorney General William Barr, the FBI and CISA, have confirmed that this was the most secure election in history and there is no evidence of fraud on any scale to overturn the outcome of the presidential election,” SOS Spokesman Jake Rollow said. “In Michigan, no evidence of widespread fraud has been identified whatsoever. Michigan’s November election will be comprehensively audited in accordance with state law, our state constitution, and the facts and data of the election, not the fantasies conjured by the losing candidate and his supporters and enablers.
“Electronic poll book data, which is removed after every election to safeguard personal identifying information, and is separately preserved on paper records, is not needed to conduct any reasonable type of audit that could conceivably be requested, because paper versions of the pollbook are always maintained and used for audits.”
While election experts MLive spoke to said the software should be improved to more readily flag human errors, they didn’t believe the software was inherently corrupt or easily corruptible.
Leaf drew public criticism and calls for his resignation in October when some felt he showed support for the men accused of plotting to kidnap the governor.
“I’m not trying to sympathize with the guys but we don’t know all the facts,” Leaf said during an interview at the time. “I have a hard time swallowing this was a serious thing.”
The lawsuit filed by Leaf and the other defendants in the U.S. District Court for the Eastern District of Michigan names Whitmer, Secretary of State Jocelyn Benson and the Michigan Board of Canvassers as defendants.
While the request for a restraining order is denied, the lawsuit is still pending.
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