A judge ruled against the Trump team’s legal effort seeking to force the Michigan secretary of state to direct local election officials to allow Trump campaign observers to watch ballots being opened and counted amid complaints about access to the absentee vote count process.
The court said that the facts were not enough to grant emergency relief, in part because it’s too late and the vote count is nearly complete in Michigan.
Judge Cynthia Stephens of Michigan’s Court of Appeals dealt the Trump campaign a defeat during a roughly hourlong Zoom call hearing on Thursday afternoon — after President Trump’s campaign filed a complaint on Wednesday against Democratic Michigan Secretary of State Jocelyn Benson. The plaintiffs were listed as both Donald Trump for President and Eric Ostegren, described as a registered voter in Michigan who was trained as an election challenger and was allegedly excluded from the counting board during the absentee voter ballot review process. Trump’s team then filed a petition for immediate injunctive relief from the court.
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“The request for relief, as I understand it, is going to be denied,” Stephens said in a ruling from the bench, adding that “even if this relief were available, as opposed to when this suit was announced yesterday morning and the count was beginning — it was filed at 4 o’clock, at which point the count had largely proceeded, I am told — but as of this point, the essence of the count is completed.” She also said she would issue an order Friday afternoon.
“We are reviewing the Court’s published decision — which is set to be issued tomorrow — and will determine once that is issued,” Thor Hearne, an attorney for the Trump campaign, told the Washington Examiner.
Edison Research, Fox News, CNN, ABC News, and other outlets projected on Wednesday afternoon that former Vice President Joe Biden would win Michigan. Trump defeated former Secretary of State Hillary Clinton there in 2016.
Trump 2020 campaign manager Bill Stepien announced Wednesday morning that “Trump’s campaign has not been provided with meaningful access to numerous counting locations to observe the opening of ballots and the counting process, as guaranteed by Michigan law” and pointed to the “extremely tight” race in the state. He said that the campaign had “filed suit today in the Michigan Court of Claims to halt counting until meaningful access has been granted” and called for a review of all ballots “which were opened and counted while we did not have meaningful access.”
Other legal filings from Trump’s campaign included an affidavit from poll watcher Jessica Connarn. She alleged being approached by a Republican Party poll challenger, who told her that other poll workers were instructing her to change the date of a ballot and to say falsely it had been received on Monday, the day before the election, instead of Thursday, which was the day after. The Trump campaign also said there had not been proper video observation of ballot drop boxes that were created in October and asked for access to the footage.
Stephens said Thursday that “the record before me, at best, is an assertion that the secretary of state has direct authority over the individual precincts and counting places,” but she also noted that “the secretary of state provides direction to the local officials” and that those local officials were told to provide meaningful access. The judge said that “in this instance, where the issue is the day to day conduct of the vote count, the individuals who bear that responsibility … lies with the local election officials, so the relief that is being requested for the most part is completely unavailable through the secretary of state.”
“I have no basis to find that there is a substantial likelihood of success on the merits … nor am I convinced that there is a clear legal duty of anyone who is before this court to manage this issue,” the judge said.
Thor Hearne, a lawyer for the Trump campaign, argued, “The relief we’re asking this court to grant is very simple — to direct that Secretary Benson order that the election counting authorities and election boards that are handling ballots allow challengers who are qualified under Michigan statute to participate and to observe that process. … The request is simply that Eric Ostegren as well as the Trump campaign and their designated challengers be allowed to participate and meaningfully observe that process.”
The judge referred to Connarn’s affidavit as “at best, is a hearsay affidavit, I believe, that addresses a harm that would be significant, but that’s what we’ve got” and said she that “we have an affidavit that is not firsthand knowledge.” Hearne argued that the affidavit contained “firsthand personal knowledge of what she personally observed” and said that “this is a firsthand factual statement.” But Stephens was skeptical, saying, “I heard somebody else say something — tell me how that’s not hearsay? Come on now.”
Michigan Assistant Attorney General Heather Meingast said, “There are numerous defects and problems with the pleadings. … The counting boards are done. … There are no more counting boards functioning. … Those functions are complete, as of this morning. … The ship has really sailed on the relief that they are requesting in this case.”
Hearne repeated that he was asking for a judicial order “directing Secretary Benson to allow challengers designated by — they can be Democrat or Republican — but to have meaningful opportunity to oversee and observe the conduct of the election and not to exclude them, but to allow them to see how election inspectors are, in fact, processing the ballots, and authenticating them, and adjudicating them.”
Kevin Hamilton, a lawyer for the Democratic National Committee, which was attempting to intervene in the case, claimed that the Trump campaign “sued the wrong defendant” because “the secretary doesn’t operate these counting boards, the counties do.” He also called the Trump campaign affidavit “double hearsay.”
The DNC lawyer also said during the hearing that “all of this is simply an effort to stop the counting of ballots cast by Michigan voters.”
Stepien had said on Wednesday that “Trump is committed to ensuring that all legal votes are counted in Michigan and everywhere else.”
“I’m going to assume and presume that the plaintiff’s motives in filing this suit are as they are stated, to maintain the integrity of elections, and I’m assuming the respondents and the proposed amici shared those same values,” Stephens said, even as she ruled against the Trump campaign, adding, “I believe everyone here at their best seeks to have a full and fair election process.“
