By Patrick Colbeck

Today, the Michigan Court of Appeals (Thomas Cameron, Mark Cavanagh, Michael Gadola) ruled on the Bailey v Antrim County lawsuit appeal in a 3-0 decision highlighted by the following assertion by the court:

“A trial court’s ruling may be upheld on appeal where the right result issued, albeit for the wrong reason”

So how exactly did the MI Court of Appeals determine that “the right result” was issued? Let’s take a closer look at their arguments point by point.

ISSUEARGUMENTCOURT DECISION
Jurisdictional IssueAntrim County argues that this Court lacks jurisdiction because the trial court’s May 2021 order was not a final order.Disagree
MootnessPlaintiff argues that the trial court erred by concluding that his claims were moot.Agree
Summary Disposition Under MCR 2.116(C)(8)
CONSTITUTIONAL CLAIMS UNDER CONST 1963, ART 2, § 4Plaintiff argues that § 4(1)(h) permits him to have “[a] full [and independent] forensic audit. . . .” Disagree
Quo WarrantoPlaintiff next argues that the trial court erred by dismissing his quo warranto claims.Disagree
Equal Protection ClaimPlaintiff next argues that the trial court erred by granting summary disposition on his equal protection claim.Disagree
The Trial Court’s Consideration of Documentary Evidence and Inadmissable HearsayPlaintiff argues that the trial court improperly considered documentary evidence and inadmissible hearsay evidence when deciding the motion for summary disposition.Need not consider this argument
The Trial Court’s Alleged Premature Grant of Summary DispositionPlaintiff next argues that summary disposition was premature because several depositions had not yet been conducted.It is not necessary to consider plaintiff’s argument that the trial court abused its discretion when it denied plaintiff’s motion to adjourn oral argument on defendants’ motion for summary disposition.
Plaintiff’s Motion to Amend the ComplaintFinally, plaintiff argues that the trial court improperly failed to consider his motion to amend the complaint.We conclude that it would have been improper for the trial court to grant leave to amend the complaint.

Suspect Timing

Despite the case being dismissed by the trial court in May 2021, the Court of Appeals hearing was scheduled for the same week as the Michigan GOP County Conventions which would determine which delegates would be elevated to vote for the 2022 Michigan GOP Attorney General candidate. The attorney in the Bailey v Antrim County lawsuit is Matt DePerno. Mr. DePerno is in a heated convention battle between the former Speaker of the MI House, Tom Leonard, who failed in his first attempt to run for Attorney General in 2018. The 3-0 Court of Appeals ruling was issued two days before the Michigan GOP State Convention in Grand Rapids which will determine who the next Michigan GOP candidate for Attorney General will be. Political insiders heavily favor Tom Leonard while most grassroots activists support Matt DePerno.

Flawed Arguments

The core text of the decision pertains to the court’s argument in support of the trial court’s decision in favor of the dismissal of the case under “Summary Disposition”. Let’s break down each of the arguments within this section of the decision in context of what the law actually says.

Individual Right to An Audit

§ 4 Place and manner of elections.

Sec. 4.  (1) Every citizen of the United States who is an elector qualified to vote in Michigan shall have the following rights:  

(a) …

(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.

Michigan Constitution Article 2 Section 4(1)(h)

Plaintiff argues that § 4(1)(h) permits him to have “[a] full [and independent] forensic audit. . . .”

The Court argued that “While § 4(1)(h) is self-executing and is to be liberally construed in favor of voters’ rights, the provision is not unlimited. Indeed, § 4(1)(h) provides that an audit is to be performed “in . . . a manner as prescribed by law. . . .” It does not permit an audit to be performed in the manner dictated by an individual voter, and it clearly provides that the Legislature may expand the rights provided in § 4(1)(h). But the Legislature did not do so.”

If we assume that the only governing law pertaining to Article 2 Section 4(1)(h) is MCL 168.31a, let’s look at what MCL 168.31a actually says:

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

In regards to whether or not an audit had been conducted, most rational observers would conclude “no”. Per Erik Grill, Deputy AG serving as defense counsel, testimony, no audit was conducted in Antrim County. Judge Elsenheimer instead ruled that the Michigan Secretary of State press release (2/12/21 MI Secretary of State Press Release on Election Audit) was evidence that an audit had been conducted. Mind you, the Michigan Secretary of State is a defendant in the case.

In regards to whether or not the audit standards implemented by the Michigan Secretary of State met the requirements of the Michigan Constitution and MCL 168.31a, most rational observers would conclude “no”. Per the Constitution, the standards must be sufficient to determine the accuracy and integrity of the election. The current audit standards implemented by the Secretary of State do not address chain of custody requirements nor do they address the topic of electronic voting systems which hide the majority of election data transfers from observation by poll challengers or even poll inspectors.

Quo Warranto

168.861 Fraudulent or illegal voting, or tampering with ballots or ballot boxes; remedy by quo warranto.

Sec. 861.   For fraudulent or illegal voting, or tampering with the ballots or ballot boxes before a recount by the board of county canvassers, the remedy by quo warranto shall remain in full force, together with any other remedies now existing.

MCL 168.861

Plaintiff argues that the trial court erred by dismissing his quo warranto claims.

The Court’s argument is that:

To the extent that plaintiff is challenging the results of the state, county, or township election, we agree with defendants that summary disposition was proper on those claims as well because plaintiff failed to sufficiently plead the claim.

The Court of Appeals judges did not appear to have read the complaint despite copying paragraph 49 from the complaint into their decision.

Paragraph 49: “Based upon the allegations contained herein, material fraud or error occurred in this election so that the outcome of the election was affected.”

Bailey v Antrim County Complaint

The complaint goes on to say.

Paragraph 54: “This quo warranto claim is brought to remedy fraudulent or illegal voting or tampering with ballots via Dominion. Based upon the allegations contained herein, material fraud or error occurred in this election so that the outcome of the election was affected.”

Bailey v Antrim County Complaint

Clearly, the Court’s argument is not consistent with the material facts presented by the Plaintiff.

Equal Protection Claim

…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws…

United States Constitution, 14th Amendment

Plaintiff next argues that the trial court erred by granting summary disposition on his equal protection. Plaintiff alleged in the complaint that he was deprived of his constitutional right to vote in the November 2020 election due to Antrim County’s “rampant and systematic fraud,” which resulted in his vote not being “valued.”

The Court’s argument is:

plaintiff failed to plead allegations to support that he was intentionally and arbitrarily discriminated against as a result of Antrim County’s “improper execution” of a statute through its “duly constituted agents,” id., or that Antrim County failed to implement the minimum procedures necessary to protect the fundamental right of each voter, Cf. Bush v Gore, 531 US 98, 109; 121 S Ct 525; 148 L Ed 2d 388 (2000). Rather, as already stated, plaintiff made generalized assertions to the trial court that election fraud occurred and that he should be provided with discovery in order to determine the extent of the fraud. Additionally, plaintiff did not allege that he was treated differently than similarly situated individuals, which is necessary to establish an equal protection claim.

This argument gets to the heart of why election fraud needs to be prosecuted with vigor. In Antrim County, 7,060 votes were switched from Trump to Biden during the initial vote tally. A total of four recounts occurred in the election. Every single one of them had different tallies. No voter has any assurance that their vote counts unless an election is performed with accuracy and integrity as stipulated in Article 2 Section 4 of the Michigan Constitution. We need to ensure that every legal vote is counted in order to be assured that an election was conducted with integrity. In order to ensure that the votes cast were indeed legal, an audit, not a recount, is required. If an audit does not happen, individual voters have no assurance that their vote was not nullified by one or more illegally cast votes.

CONCLUSION:

Under this ruling, the Court is effectively saying that no citizen of Michigan has the authority to challenge the results of an election. It is a sad day for our constitutional republic. The decision of the Michigan Court of Appeals will now likely be appealed to the Michigan Supreme Court.

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