A years-long legal battle alleging dereliction of duty on the part of Michigan Secretary of State Jocelyn Benson has moved to the Michigan Court of Appeals.
In the early fall of 2020, four Michigan voters said they had discovered that some local election officials were allegedly using millions of dollars of private donations from the Center for Tech and Civic Life (CTCL) to pay for what they called “get-out-the-vote efforts” in urban Democratic strongholds around the state.
CTCL is a nonprofit organization heavily funded by the Mark Zuckerberg family.
A 2021 report by Capital Research Center, a conservative think tank that studies nonprofits, found that Michigan communities accepted $7.4 million from CTCL in 2020 to help the localities conduct safe and healthy elections during the COVID-19 pandemic.
The grants also encouraged voter registration drives, mail-in voting, and the use of absentee ballot drop boxes.
Data from the study show that 92.8 percent of the funding went to 11 Michigan cities that heavily favored Democratic candidate Joe Biden.
In September 2020, with legal assistance from the Thomas More Society, the four voters asked the Michigan Court of Claims to immediately stop the practice.
On Oct. 16, 2020, their emergency motion for declaratory relief was denied.
Court of Claims Judge Christopher Murray told the four voters that the court would do nothing that might interfere with the Nov. 3 general election that was close at hand.
However, Murray found the allegations warranted further discovery and litigation and deferred their claims for “post-election consideration.”
After the election, the voters sued Benson for allegedly violating their constitutional rights by failing to conduct the election according to the Michigan Constitution and election code.
Benson, represented by the office of Michigan Attorney General Dana Nessel, a Democrat, sought twice to have the case thrown out.
Both of Benson’s motions for summary disposition were denied by Murray.
As the case dragged on into 2022, Benson’s third motion for summary disposition was granted by a different Court of Claims judge, Thomas Cameron.
In January, before the plaintiffs’ counsel was able to complete discovery, Cameron dismissed the case.
Attorneys for Benson successfully argued that the alleged improper use of the private funding for partisan purposes couldn’t now be challenged because the election was over, and the case was, therefore, moot.
In a brief filed with the Michigan Court of Appeals on Sept. 6, Thor Hearne, the chief attorney for the plaintiffs and special counsel for the Thomas More Society, wrote:
“It cannot be that a private election funding scheme is immunized from judicial review both before and after the election.”
Hearne called it a Catch-22 for his clients—who were blocked from suing Benson prior to the election, for fear the case could influence election results, and who were stopped from suing Benson after the election because it was too late to make any difference.
In her pleadings, Benson’s lawyers contended that the four voters lacked standing to bring the action against her.
Benson also claimed that she couldn’t be sued for the implementation of a private program to fund and direct the conduct of Michigan elections because she didn’t personally hand out the money.
The plaintiffs’ appeal states that this is no defense and alleges Benson “actually encouraged local elections officials to participate in the private funding scheme.”
They allege she supported the program from its inception and, as the state’s chief election official, oversaw its implementation by the localities.
Benson also contended that Michigan voters lack any judicial remedy to hold her accountable.
In a brief filed on Dec. 17, 2021, her lawyers wrote that the claims by the plaintiffs “were not supported by any actual controversy” and that “there is no cognizable claim for which relief may be granted.”
In the appeal, Hearne characterized Benson’s legal reasoning as an attempt to deny his clients access to judicial review of her alleged violations that allegedly caused them injury.
Hearne cited U.S. Supreme Court precedent from Marbury v. Madison, which states, “It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress.”
He cited Michigan case law which holds that a “right must be enforceable; otherwise, it is not a right at all but a mere hope.”
According to the complaint, the plaintiffs’ cause of action is brought under the equal protection clause of the Michigan Constitution.
The four voters allege that, through Benson’s inaction, their “right to participate in a fair and honest election in which every Michigan citizen has an equal vote and equal access to the ballot was denied.”
Citing IRS filings by the CTCL, Hearne alleged that a huge percentage of the millions of dollars paid to Michigan election officials by the CTCL in the 2020 presidential election went to urban jurisdictions carried by Biden.
He alleged that Republican-leaning suburban and rural jurisdictions received small grants from CTCL or none at all.
The four voters suing Benson reside in what Hearne called “disfavored” jurisdictions.
The appeal reads, in part, “Voters’ [his clients’] access to the ballot was substantially less than that of individuals residing in Democrat-leaning urban jurisdictions that received vastly larger payments.
“This scheme of spending 10 times or more to provide ballot access to voters in favored jurisdictions has the effect of increasing the number of ballots cast by voters in the favored urban jurisdictions over the votes of those in the disfavored jurisdictions.
“This substantial disparity in access to the ballot means that voters in the disfavored jurisdictions were denied an equal opportunity to participate in the election.”
Hearne wrote that this resulted in the votes of his clients being diluted and undervalued.
He cited the case law precedent which holds that “the idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.”
In a Sept. 13 phone and email interview with The Epoch Times, Hearne stated that his clients’ appeal is important to every voter regardless of partisan affiliation.
According to Hearne, the millions of dollars paid to local election officials were conditioned on their conducting the election according to rules specified by CTCL.
“Unattended ballot drop boxes and other measures required by CTCL facilitated mail-in voting and ballot harvesting,” he said.
Hearne told The Epoch Times that denying his clients “standing to challenge Benson’s support for this scheme would render her immune from judicial accountability.”
He stated that the case “at its most basic level, says that citizens and voters must be able to challenge election officials’ illegal conduct and hold election officials to account in court.”
The plaintiffs’ plea for relief reads, in part, “This court [the appeals court] should reverse the Court of Claims’ summary disposition ... and remand the case to the Court of Claims for further proceedings, including allowing the parties to complete discovery.”
The Michigan office of the secretary of state doesn’t comment on ongoing litigation.
Kristina Karamo, the Republican candidate for secretary of state, told The Epoch Times in a Sept. 13 email, “Private money funding our elections ... opens the door for our elections to be bought.
“As secretary of state, I will eliminate all private funds from coordinating with local and state election officials in any capacity.”
A proposal to amend the Michigan Constitution to normalize private funding of elections and require ballot drop boxes in every election jurisdiction will be on the Nov. 8 ballot.
The proposal goes by the name “Promote the Vote.”
