Antrim County Election: Audit or No Audit?

By Patrick Colbeck

Have you ever been audited by the IRS? I have. It wasn’t pleasant. I was asked to provide supporting evidence for the entries in my tax return. It was a tedious exercise as I proceeded to collect images of receipts, travel logs, emails and more in order to substantiate my entries. The process took days to complete.

What does this have to do with Antrim County? As it turns out, quite a bit when it comes to the Election Fraud lawsuit filed by Attorney Matt DePerno on behalf of Plaintiff Bill Baily of Antrim County.

Michigan Secretary of State Jocelyn Benson would have you believe that an “audit” is the equivalent of the IRS asking you to check your math as you add and subtract the values in the cells on your 1040 form.

In election terms, “checking your math” is called a “recount” NOT an “audit”. A true election audit would involve a paper trail analogous to the one that I was obliged to provide to the IRS.

What does the MI Constitution say about audits?

(1) Every citizen of the United States who is an elector qualified to vote in Michigan shall have the following rights:

…

(h) The right to have the results of statewide elections audited, in such a manner as prescribed by law, to ensure the accuracy and integrity of elections.  

All rights set forth in this subsection shall be self-executing. This subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes. Nothing contained in this subsection shall prevent the legislature from expanding voters’ rights beyond what is provided herein. This subsection and any portion hereof shall be severable. If any portion of this subsection is held invalid or unenforceable as to any person or circumstance, that invalidity or unenforceability shall not affect the validity, enforceability, or application of any other portion of this subsection.

Michigan Constitution, Article II Section IV

What does the MI Secretary of State say about audits?

An “audit” is defined by the Michigan Department of State Bureau of Elections, Post-Election Audit Manual, January 2020, an independent examination and “thorough review of pre-election and election day documents to determine if procedures were properly followed according to state law and established procedures” including all of the following:

• A full review conducted after polls close for the purpose of determining whether the votes were counted accurately (a results audit)
• A full review conducted after polls close for the purpose of determining whether proper procedures were followed (a process audit).
• “Election notices, election inspector appointments and training, ePollbook security, test deck procedures, military and overseas voter applications, and a review of the Pollbook and ballot containers used on election day will be the primary focus of the audit. In addition, an audit of the results of up to three contests in a General election and one contest in other elections on the ballot in each precinct will be conducted.” Id. at 3.
• Determine is the proper number of notices were published in a local newspaper prior to an upcoming election. The newspaper should supply an Affidavit of Publication to the publisher to confirm publication. Id. At 4.
• Review that all requirements of the Michigan Election Code were satisfied, including but not limited to: MCL 168.489(3); MCL 168.653a; MCL 168.798(1); MCL 168.674; 168.653a; MCL 168.677; MCL 168.68. Id. At 4-5.
• “A vital component to a successful election is the conduct of the preliminary and public Logic and Accuracy Testing prior to the election.” Id. at 6.
• Ensure that the proper Tabulator Program Testing and Security Certification forms are complete and match the seal and serial numbers listed in the corresponding precinct’s Preparation Certificate portion of the Pollbook
• Ensure that the Michigan Secretary of State has complied with MCL 168.797c and holds all source code for voting machines in trust. Pursuant to the Michigan Security Advisory Commission, the Michigan Secretary of State shall perform source code security audits or penetration testing on a frequent and regular basis (at a minimum annually).
• Ensure that all jurisdictions and governmental agencies in the State of Michigan have complied with 52 US 20701 and have retained and preserved all voting records for 22 months.
• “Review the Voter Assist Terminal Preparation Checklist and Test Certification Form and verify it was properly completed.” Id. at 7.
• “Review the Applications to Vote. Physically count the Applications to Vote and determine if there is the same number of Applications to Vote as voters in the Pollbook.” Id. at 8.
• “If auditing an election with a state or federal office, review the absent voter information posting required to be posted before and on election day.” Id.
• “Verify the completion of a Receiving Board checklist on election day.” Id.
• “Finally, review the remaining components of the Pollbook.” Id.
• “Review the Clerk’s Preparation Certificate.” Id. at 9.
• “Ensure all checkboxes are completed in the Election Inspectors’ Preparation Certificate and that the inspectors signed.” Id.
• “Ensure all inspectors (including the chairperson) subscribed to the Constitutional Oath of Office.” Id.
• “Ensure the oath administrator signed in the appropriate location(s).” Id.
• “Compare the signatures of the election inspectors with the Election Commission appointments to ensure all that signed the oath were appointed.” Id.
• “If applicable, ensure the write-in portion of the Pollbook was completed. Votes should be properly totaled after the tally marks.” Id.
• “Ensure the tabulator tape/statement of votes (should be affixed to the Statement of Votes signature page in the back of Pollbook) was signed by all election inspectors.” Id.
• “Ensure the number of ballots tabulated on the totals tape matches the number of voters listed in the Pollbook.” Id. This includes, but is not limited to, a complete examination and review of all paper ballots and all electronic reporting procedures and components to ensure that the proper votes were captured by the electronic voting machines and properly transferred to the county and state, without foreign interference.
• “Ensure the Ballot Summary (found in the Pollbook) is completed, balanced, and totals are accurate. The Difference should always be zero. If there is a valid discrepancy, was it remarked? If so, check the Remark box.” Id.
• “Review the Provisional Ballot Forms with the Pollbook to ensure the number issued matches the number in the Ballot Summary.” Id. at 11.
• “Determine based on the information provided on the form if the Envelope ballot was appropriately processed by the election inspector and/or the local Clerk.” Id.
• “Ensure a master card is available for each voter issued an Affidavit or Envelope ballot verifying the voter was registered to vote after the election. Finally, if an envelope ballot was counted, verify it was sealed in an approved ballot container.” Id.
• Does the number of spoiled ballots in the Spoiled Ballot Envelope equal the number of spoiled ballots listed in the Pollbook?” Id.

On December 4th the court ordered a “forensic audit” in the Antrim County election fraud lawsuit.

Was a “forensic audit” completed?

On December 17th, what was advertised as a “Risk-Limited Audit” was performed in Antrim County. During this “audit”, it was evident to many observers that election workers received instructions that were not consistent with what even the Secretary of State’s own audit manual would consider to be an audit.

It was obvious to observers present at the December 17th “audit” that workers were limited to simply recounting the ballots or “checking their math”. That is a “recount” not an “audit”. During oral arguments on May 10, 2021, even Assistant Attorney General Erik Grill who served as counsel for the defense, conceded that no audit was performed.

Judge Elsenheimer disregarded statements made by the plaintiffs and even counsel for the defense that were made in his court in favor of the assertions made in two press releases made by Secretary of State Jocelyn Benson on her website which asserted that an audit had been completed.

• 2/12/21 MI Secretary of State Press Release on Election Audit
• 3/2/21 MI Secretary of State Press Release on Election Audit

Please note that upon intervening on behalf of the Antrim County Clerk Sheryl Guy, the MI Secretary of State is a co-defendant in the lawsuit. In other words, the Judge’s decision regarding the motion to dismiss the case was made on the basis of the defendant’s opinion rather than the relevant facts.

You can view the decision made by Judge Elsenheimer in the following video of the May 18, 2021 court proceedings.

Judge Elsenheimer approved the motion to dismiss the case.

During this proceeding, he asserted that an audit of election results had already been completed in accordance with MCL 168.31a therefore the plaintiff’s request for an audit has already been satisfied rendering the case moot. What does MCL 168.31a say about audits?

Sec. 31a.  (1) In order to ensure compliance with the provisions of this act, after each election the secretary of state may audit election precincts.  (2) The secretary of state shall prescribe the procedures for election audits that include reviewing the documents, ballots, and procedures used during an election as required in section 4 of article II of the state constitution of 1963. The secretary of state and county clerks shall conduct election audits, including statewide election audits, as set forth in the prescribed procedures. The secretary of state shall train and certify county clerks and their staffs for the purpose of conducting election audits of precincts randomly selected by the secretary of state in their counties. An election audit must include an audit of the results of at least 1 race in each precinct selected for an audit. A statewide election audit must include an audit of the results of at least 1 statewide race or statewide ballot question in a precinct selected for an audit. An audit conducted under this section is not a recount and does not change any certified election results. The secretary of state shall supervise each county clerk in the performance of election audits conducted under this section.  (3) Each county clerk who conducts an election audit under this section shall provide the results of the election audit to the secretary of state within 20 days after the election audit.

MCL 168.31a Election audit; procedures

Clearly, a review of the documents and procedures is included in the requirements for an audit per this definition, yet during the December 17, 2020 “audit” election workers were explicitly denied the ability to question documents and procedures. They were limited to simply “counting the ballots”.

If it walks like a “recount” and talks like a “recount”, it is a “recount”….not an audit.

It is worth noting that in his decision, Judge Elsenheimer failed to read the entire section of the Michigan Constitution relevant to this case. Specifically, he neglected to cite the following provision of Article II Section 4:

All rights set forth in this subsection shall be self-executing. This subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes. Nothing contained in this subsection shall prevent the legislature from expanding voters’ rights beyond what is provided herein. This subsection and any portion hereof shall be severable. If any portion of this subsection is held invalid or unenforceable as to any person or circumstance, that invalidity or unenforceability shall not affect the validity, enforceability, or application of any other portion of this subsection.

Does it seem to you that his decision in the suit was “liberally construed in favor of voters’ rights in order to effectuate its purposes?” It does not seem so to me.

It is clear to most rational observers that the Antrim County lawsuit filed by Plaintiff Bill Bailey should not have been dismissed as the remedy sought by his case, an audit, was never executed despite the court order to do so.

Attorney Matt DePerno and Plaintiff Bill Bailey plan to appeal Judge Elsenheimer’s decision.

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