By Patrick Colbeck
On April 12, 2022, the Michigan Court of Appeals heard oral arguments on the plaintiff’s appeal of trial court Judge Kevin Elsenheimer’s decision to dismiss the Bailey v Antrim County lawsuit. In addition to being an important case with respect to exposing the election fraud which occurred in the 2020 election, it is also an important defense of our constitutional right to an audit.
Thanks to Brian Lupo, you can see and listen to the proceedings by clicking on the photo below:
The initial election results in Antrim Country reported that Joe Biden NOT Donald Trump won in this perennially red county. Subsequent recounts determined that 7,060 votes were shifted from Trump to Biden in a county of where only 16,044 ballots were cast.
Bailey v Antrim County Lawsuit
On November 23, 2020, attorney Matt DePerno filed a lawsuit on behalf of Antrim County resident Bill Bailey.
On June 25, Judge Kevin Elsenheimer dismissed the lawsuit on the basis of his assertion that the plaintiff’s remedy (an audit) had already been performed by the Secretary of State.
On April 12, 2022, the Michigan Court of Appeals heard oral arguments pertaining the appeal of Judge Elsenheimer’s ruling filed Attorney Matt Deperno.
§ 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:
(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.…
168.31a Election audit; procedures.
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.
This case is about a voter’s right to conduct a statewide audit of the 2020 election pursuant to the Michigan Constitution.
- All voters have the right to conduct an audit of the statewide elections as prescribed by law
- Any interpretation of the provision shall be liberally construed in favor of the voter per the constitution
- The question in this case is what is an audit? The legal issue of what constitutes a constitutionally sufficient audit under section 4(1)(h) remains unresolved in this state. This is an issue of first impression.
- What is most important is the first sentence of MCL 168.31a was added after the Constitutional amendment was adopted. It states that the Secretary of State shall prescribe the procedures for election audits that include reviewing of documents, ballots, and procedures. That word include is vitally important. That statute specifically states what the Secretary must do. Her audit as prescribed under MCL 168.31a must include reviewing of documents, ballots and procedures. At a minimum. The word include is not a word of limitation but rather of enlargement. (Skillman v Abruso). So it includes we believe everything that occurred in this election.
- We know that in Antrim County they used voting machines in that election and therefore by use of the word include the plaintiff was entitled to a review of the computer systems, the software, any attached equipment, modems, connections, communication devices, ballot images, the ballots themselves. We did not get any of that as the plaintiff.
- What happened as we know there was that there was a hand recount conducted on December 17, 2020. However during oral argument, Secretary of State, her attorneys acknowledged that that hand recount was not an audit in Antrim County. What she was referring to was these Risk Limiting Audits. Under no semblance of any time of definition would that be considered an audit under MCL 168.31a.
- We didn’t get an audit. Press releases are not reports which can be admitted. They are self-serving. They are not trustworthy. If we don’t consider those press releases, there was no audit.
- Plaintiff still has not been provided with information needed to conduct their investigation: ImageCast Listener express server, the express firewalls, the managed switches, 17 external modems, the communications management server.
This case boils down to one question – whether or not Article II Section 4 provides an individual right to an open-ended audit of statewide elections? If the answer is no, the plaintiff’s argument is moot.
Defense strategy was basically a two-tiered approach
- First being Arguing case is moot because no additional relief that they are eligible to receive. Argument relevant to mootness is that is the relief that the plaintiff is entitled to?
- Second, they would pursue dismissal on c8 grounds for each individual claim.
Every case (e.g. Constantino and Genetski) that has examined this question up until now, has determined that constitutional right to an audit is not an individual right.
Court inquiries seemed to revolve around the following issues:
- Is the right to an audit an individual right? Does that mean we might have 8 million audits?
- What is the scope of the right to an audit?
- Does right extend to a subset of counties or all counties?
- Are election officials and the Secretary of State the only ones authorized to conduct audits?
- Does an individual voter have an individual right to conduct an audit?
- Are there provisions beyond MCL 168.31a which should be considered when interpreting “as prescribed by law” provision in Article II Section 4? (e.g. Writ of Quo Warranto)
What are the likely decisions which may be issued by the Court of Appeals?
The Court may simply reject the appeal and support the decision made by the trial court judge.
The Court may rule that MCL 168.31a limits the constitutional rights of citizens expressed in Article II Section IV of the Michigan Constitution and is therefore unconstitutional.
NOTE: Constitution did not specifically call out MCL 168.31a. It simply said “as prescribed by law”. There are other statutes which provide investigative authority thereby addressing individual rights to audit.
The Secretary of State has been negligent in her duties by not complying with the statutory requirements of MCL 168.31a. The Secretary would likely then be required to update the state Post-Election Audit Manual to extend beyond ballot recounts and include documents, ballots and procedures as required by statute including documents and procedures specific to the electronic voting systems used in counties such as Antrim County.
The court could order that an audit of statewide election results be conducted.
The Michigan Constitution guarantees every citizen the right to an audit of statewide election results to ensure the accuracy and integrity of elections. The Secretary of State is maintaining that hand recounts are sufficient for an audit. The plaintiff is contending that the Secretary of State’s definition of an audit is insufficient to ensure the accuracy and integrity of elections. Remember, the right to an audit is to be liberally construed in favor of the voter per the Constitution.
Ballot counts do not guarantee the accuracy and integrity of elections especially when electronic voting systems are involved. In order to ensure the accuracy and integrity of an election, an audit must examine the chain of custody for all election records. Without such rigor, we have no way of knowing whether or not the ballots in custody now were the actual ballots submitted on election day. We have no way of knowing whether or not the ballots cast were actually cast by an eligible voter. We have no way of knowing if election officials followed the procedures within the election manual.
The ruling that will be issued by the Michigan Court of Appeals will determine whether or not our constitutional rights to an audit of statewide election results have been infringed upon or enforced.
- Let’s Audit the MI Auditor General Report on Elections
- Vote Tally Audits: Missing Link
- Are Ballot Image Audits Useful?
- Statewide Voter Registration File Audits: Very Insightful
- Rigged: Who Gets Access to Electronic Voting Systems?
- Statewide Election Fraud in MI
- What is a Full Forensic Audit?
- Antrim County Election: Audit or No Audit?
- Antrim County: The Thread That Unravels 2020 Election Theft