Michigan Attorney Urges Judge to Order Audit Over Election Fraud Claims

A worker with the Detroit Department of Elections carries empty boxes used to organize absentee ballots after nearing the end of the absentee ballot count at the Central Counting Board in the TCF Center in Detroit, Mich., on Nov. 4, 2020. Elaine Cromie/Getty Images

An attorney representing poll challengers claiming systemic fraud during the election process in Wayne County, Michigan, urged a state judge to block the certification of the election and order an audit to determine the accuracy and integrity of the vote.

David Kallman, senior counsel of Great Lakes Justice Center, told the judge from the Circuit Court for the County of Wayne on Wednesday that voters are “entitled to [an] audit” of the results of an election under a constitutional amendment under Michigan’s Constitution. The amendment was added to the state constitution in 2018.

Kallman is representing 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.

The lawsuit includes sworn affidavits from several witnesses attesting to alleged election fraud. During the hearing on Wednesday, Kallman said they were currently seeking (pdf) a temporary restraining order or preliminary injunction to block the certification of the election, an order for an independent audit of the results, and a protective order to “preserve and protect all evidence relevant to this case.”

The complaint filed earlier this week also asks for an order to void the Nov. 3 election results and a new election to be held.

Kallman and the attorneys for the City of Detroit and state election officials disputed over whether an audit could be ordered over the election results.

David Fink, the lawyer for 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.

A worker with the Detroit Department of Elections helps process an absentee ballot at the Central Counting Board in the TCF Center in Detroit, Mich., on Nov. 4, 2020. Elaine Cromie/Getty Images

“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. So that the process follows in a rational way. If in the middle of that a wrench is thrown into the works with an order suddenly changing things, one way or another, all of the deadlines are turned upside down, the delay can upset the intent of the entire election process.”

He said the plaintiffs were asking the court to read the audit requirement under the state constitution as an “open-ended opportunity” for the court to order defendants to conduct an audit.

“But the court doesn’t have to do that,” Fink said while pointing out that the constitution only allows audits that are prescribed by law.

Fink said the only situation when that can occur, citing another statutory provision, is after the election when initiated by the Secretary of State.

In response, Kallman told the judge that “you can’t have an audit if the results are certified.”

“That’s the point because again the [defendants] are going to be arguing that the only remedy is a recount at that point,” Kallman said. “That’s why this is so critical.”

The judge said that he will issue a ruling on the motion by noon on Friday.

This case is cited Cheryl A. Costantino and Edward P. McCall, Jr. v. City of Detroit (20-014780-AW).