Michigan judge dismisses Trump lawsuit
A Michigan judge holds a hearing on President Donald Trump's lawsuit over the election in that state. The campaign claims the state is processing ballots without allowing challengers to observe the entire process, including video of ballot boxes.
President Inc and Eric Ostrich in versus Jocelyn Benson in her official capacity as secretary of state, I would like to at least make the an initial apology. Um, emergency matters usually emerged in the middle of other matters. That's their nature. So yesterday, at four o'clock, this matter was filed with the court of claims. At the time that it was filed, there was a complaint for immediate declaratory relief filed while it was a verified complaint. It did not have an affidavit affixed to it. It did not at that point in time, have a request for a temporary restraining order without notice attached to it. It did not have a request for injunctive relief attached to it. The later in the evening, um, the Democratic National Committee after hours filed a petition to intervene this morning, sometime around nine o'clock, I guess a supplemental set of supplemental papers were filed on behalf of the plaintiff, the first of which Waas something that addressed supplemental, uh, evidence. It said. And it waas an affidavit from, um is I'm gonna miss pronounce your name. I'm gonna but a miss c Additionally, there waas a petition filed for injunctive relief the court determined, even without a proof of service, that because the nature of the proceeding that I needed to put it in the middle of our case called and that we would let parties come forward and say what they needed to say in as quick manner as we could. The court has not ruled on the petition to intervene, filed on behalf of the the Democratic Party, but did afford them the opportunity to file papers as if they were in a Mickey Um, while the court made a determination of any standing and whether or not intervention would be granted. With that, the court set a hearing for 11 30 thinking is that my morning call for the court of clients for the Court of Appeals rather would be done by them. Unfortunately, one of my colleagues had no power, and so it took us until about 10 40 to even begin the Court of Appeals docket, and it just concluded, I am very apologetic about that and appreciative of the patients of all the parties in this case. As you can imagine, I have done a speed read of the multiple pieces of paper that were filed, The defendant did, in fact, file a response to the junk request for injunctive relief. Um, and about two minutes ago, the, um, icky filed papers, which I can honestly tell you I have in front of me. But I have not read the way in which I am going to proceed today, but without affording the proposed interveners intervention, because this is gonna have to be managed today and fairly quickly. I am going to give them the courtesy of brief or comments. Andi, I will give them that courtesy after the named parties have spoken to whatever issues they deem appropriate. Are we clear on at least how we're going to try to get through this? Were your sure? Okay with that? We began, please. With council for the plaintiff. Yes, Your Honor. Thank you. Uh, in good afternoon. From the plaintiff's perspective. What? The relief we're asking this court to grant is very simple. Uh, is simply thio direct the Secretary Benson order that the election county authorities and the county boards that air handling ballots allowed challengers who are qualified under Michigan statute to participate in to observe that process. Uh, many of the ballots have in fact, been counted. Some are still being authentic. Judi Cation boards are still being convened. Uh, and so the request is simply that Eric Ostrich in who is the name party as well as the Trump campaign and their designated challengers be allowed to participate meaningfully observed that process. Uh eh. So I guess what I need to understand. In order for me to give injunctive relief, I would have to first find that there is an immediate threat of irreparable harm and that they're well, first, there's a substantial likelihood of success on the merits. Let's start there. And in order for me to make that determination that somehow you're being deprived of meaningful participation, I've got to make ah fact finding. I looked at the affidavit repeatedly, and the affidavit appeared to say to me that there was a person who had been approached by another human being who is unnamed but described as, ah, participant in the counting process and that that individual, who is unnamed but a participant in the accounting process, gave information to the advent that indicated that there was some malfeasance going going forward. So what I have at best is here say affidavit. I believe that addresses harm. That would be significant, but that's what it that's what we've got. We've got an affidavit that is not firsthand knowledge. If there is something in that affidavit that would indicate that that particular, that the Athens observed activity, that would be a deprivation of the rights of poll watchers. I want you to please focus my attention on that. I would, uh, indicate your honor. Attached to that was a note that was again. This was a election inspector who was appointed at, according to the affidavit that was handling the processing in the ballots, that ballots that had been sent in prior or after. Excuse me, after on November 4th after the deadline were re, uh, noted to be a ballot that was received timely. Okay, so I just wanna make sure I'm understanding you. The Afghans is not the person who's had knowledge of this. Is that correct? The Afghan had direct first hand knowledge of the communication with the election inspector and the document they provided them, which is generally known as hearsay, right? I would not think that's hearsay, Your honor, that's firsthand personal knowledge by the af ian of what she physically observed. And we included an exhibit which is a copy, physical copy of the note that she was provided. And I'm going to see if I can pull up this physical copy of the note because I'm okay, Start. I think so. While I'm doing that, you can continue your argument. Yes, your Your Honor, thank you. And the gist of what we're asking both the court to do and where we have a concern is not just this specific instance. But what we're asking is that the Michigan law, which election code at 1 68 7 33 has specific duties for challengers who are able to observe the processing of ballots. And who is it? Who is it who has a veered that they have not been given that opportunity? Did I miss that, too? That that would be Eric Ostrich in Who's the plaintiff? Named one of the named plaintiffs who was excluded from the Oakland County counting board and so his status other than being a candidate? What is his status? He is not a candidate. He is a challenger, a designated credential challenger, and he was removed from the counting board, Uh, and the allegation? Not just that, he I mean, that is what he said. But then, in addition to that, the Trump campaign has a right as a party and a candidate in this election to have challengers meaningfully participate. And that's what we're asking the court to direct Secretary Benson to allow. We understand it's meaning. What do you mean by meaning? Lee participate? What is it that you believe? They have not been afforded the opportunity to do that. They have a legal right to do so. I would refer the court to Michigan statute in the election code 1 68 733 we quoted in our brief. And it provides the rights and responsibilities of election challengers, which means they have the ability to oversee or to meaningfully observe the election inspectors processing the ballots in the conduct of the election. And that's what we're asking direction from Secretary Benson to the local county boards that they make sure that they comply with this. I mean, I could go through the statute. I don't want to take the court's time to read it. We quote it at Page four of our petition. Okay. You may proceed. Yes. So that that is the relief we're asking the court to grant. Your honor is in order directing Secretary Benson to allow challengers designated by they could be Democrat or Republican. But they have meaningful opportunity to oversee and observe the conduct of the election on not to exclude them, but allow them to see how the election inspectors are, in fact, processing the ballots A and authenticating them and adjudicating them. Okay, I've gone back to your affidavit, and what I have is something that says it entered received date as of 11. To on 11. 4. Yeah. And it says that this was coming. It doesn't say it says the individual who spoke to her was a poll worker with no name. Okay, that is correct, Your Honor. That's what the But when you read the affidavit, you will see that Miss Conan, uh, can Aaron, uh, indicated who is, in fact, herself an attorney? Michigan attorney, uh, indicated that the poll worker indicated that this was in fact, a She was directed to basically e I understand, But I'm still trying to understand why this isn't hearsay. Well, it's it I absolutely understand that it's what the Athens says, she heard someone say to her. But the underlying the truth of the matter asserted There in that you're going for is that there was an illegal act current or because other than that I don't know what its relevancy is, right. I would say, Your honor, in terms of the hearsay point, Uh, this is a first hand factual statement made by Miss Conran, and she has made that statement based on her own firsthand physical evidence and knowledge. I heard somebody else say something. Tell me why that's not here to say, Come on now. Well, it's a firsthand statement of her physical. It's an out of court. It's an out of court statement offered for the truth of the matter, asserted their end, right? So if the truth is, if the truth is that somebody told her something, not what they told her. That's one thing you want me toe find the truth, or at least in scintilla of truth. In what she says, the contents of that communication work right. What we're asking the court to do Your Honor is to on the basis again. It's not based on what the relief we're asking is not just based on this affidavit. The relief were seeking the court to order Secretary Benson to direct election officials to allow observers and challengers in Michigan counting jurisdictions, as provided by Michigan State law 1 68 73 And I've got to find that they're not doing that in order for me to have a basis to tell them to do that right? So you wanted me to look at the at the summons in the complaint because you're telling me that in certain paragraphs of this complaint, I'm going to see that Mr Oxygen says that he was ousted. Does he tell me the circumstances under which he was ousted? And I'm He was. He was a designated qualified challenger, and he was told to leave the counting board. That's that's the allegation that we make. That's a statement that we make in the verified complain. Okay, you may proceed further again. I come back, your honor to what we're asking the court to do, and I know I said it several times, but it's simply too direct. Secretary Benson to have the local election counting boards provide meaningful opportunity for challengers from the Trump campaign. Aziz. Well, as's Mr Oster again, frankly, I mean, the other parties are parties in this litigation, but we would be fine with the Biden campaign or anybody else having challengers as provided in Michigan. Law observed the process, and that's really the relief. Were requesting. Okay in response from the secretary of State. I don't know who is responding, but good afternoon, Your Honor. Heather. Mine guests on behalf of the Secretary Benson along with Assistant Attorney General Eric Grill. Um, I guess first, I would note, I know the courts aware that we filed a response. That response was to the emergency motion for declaratory judgment that we received on November 4th. We did not receive a motion for injunctive relief that was apparently or purportedly filed today. Sometimes I'm not sure of what of what that pleading says and whether it's negates some of the response that we've already provided. But eso we've responded to the first motion. I don't have a second motion, um, and wait with Gary, What motion? There was no The original summons and complaint didn't have emotion. The sum is a complaint that we had was accompanied by a new emergency motion for declaratory belief. What we got was way. Got a summons. Okay. Yeah. All right. Okay. So? Well, I When When he thought when was the request for injunctive relief served on behalf of the planet? Your Honor, if I can address that question, it was served both Elektronik lee on behalf of the plaintiffs to, uh, Secretary Benson as well as the others. And we also had a process server who tried to physically deliver it to the secretary state's office. But the office was closed and they could not get access. But clearly, the Secretary state has copies of all the pleading. I do know do not have a of emotion for injunctive relief. I've looked in my email. Mr. Grill has a swell. If that could be re sent, I'd be happy to look at it. I'm just pointing out for the record, we filed a response to the initial motion, and that's you know what I can address today, and I think it's e describing a initial motion. You got pleadings in a different way than I did. I got a summons and complaint, period. Then I got additional papers this morning and a copy of a proof of service later this morning. I think that we're substance lutely talking about the same thing. They just came in pieces. That could be your honor. And I don't know that it makes any difference. I mean, our arguments really wouldn't really be any different in a second motion if it was an emotion for injunctive relief. I mean, as we set out in our response, there are numerous defects and problems with the pleadings that have been filed in this case, you know, and most significantly, here, Um, you know, there really isn't any relief that could be granted at this time as the fourth and declaration from Director Raeder E. I mean, the county boards air done. We have finished counting a V ballots in Michigan, and so there isn't any. You know, there are no more counting boards functioning as faras challengers and precinct inspectors, you know, reviewing navy ballots and processing right now that those functions are complete, least as of this morning from Director Braider. And so, to the extent that the plaintiffs are requesting that we halt, you know, the processing of a V ballots so that somehow challengers can have some sort of opportunity to review the process. There isn't any more opportunity to do so because the counting boards have completed their functions. So the ship is really sailed on the relief that they're requesting in this case, I think so. We pointed that out through our latches argument to some extent. Also, really. Now what we're talking about is sort of a muteness argument, and I'm also a little bit confused today as to their argument about with respect to the challenges. If you look at their pleadings, the basis of their pleadings is that the challengers were being denied an opportunity to review surveillance video of the draft boxes that is the basis of their complaint and the emergency motion that we read. So this opportunity for a meaningful review has played in the pleadings is they wanted some sort of opportunity to review surveillance video of drop boxes. And so that's how we've addressed our pleadings, a response because that's how it was pled. I didn't hear any of that Miss mine guests. They did say in the second paragraph, the name plaintiff was removed, right? But if you look, that's why they're completing their confusing because they're pleading to talk about election inspectors of both parties not being present for various aspects of the county board process. Mr. Ostergren is not an election inspector. He's a challenger. And so there is some to me. There's somewhere at sixes and sevens with respect to what the pleadings are actually saying, What kind of is really going on or what the law iss Mr. Ostergren doesn't explain where he was excluded from which a V County board what day that happened, why he was excluded. And that doesn't even really feed into his exclusion, for whatever reason, doesn't feed into the claims that they've plaid, which where their arguments are that, um, election inspectors from both parties are not always present at the county boards to review the process. That's what their claim is. And the challengers are not having an opportunity to review surveillance video. So that's I'm just going on what the pleadings say, Your Honor, it is the source of their alleged injury. It's not really kind of matching up with the argument that we're hearing from council this morning and again, at this point, it's all really moved because the county boards air complete. We've moved on to the sort of the second phase and all of this, all of the unofficial results and all the pull books and all the ballots and all that will be moving on to the county canvas for the boards, the county boards to look at. So you know, there isn't any relief that could be given at this time with respect to halting this process and allowing challengers more opportunity to review or to fix some alleged irregularity and not having pre seen inspectors or election inspectors of both parties present for these functions. So you know, that's that's what we've principally responded in our response. They also like standing. And then if you even get down into the merits of their claims, if you even pat there, there really isn't anything to it because they don't have an option. You know there is no right to review the surveillance video, and there isn't really any kind of obligation is. We read the statute that somehow you know an election. Specter of both parties has to be present 100% of the time in 100% of the places that the essence of unaccountable, absent Voter Accounting Board. So I just feel like there's a little bit of disconnect between what their pleadings, actually state and some of the argument that we've heard today. Okay, on behalf of the proposed intervener present a Mickey, Uh, good. Good afternoon, Your Honor. Kevin Hamilton for the Democratic National Committee. Um, and first, I'd like to thank your honor for the opportunity to appear, and I'll be brief. I believe the motion should be denied for several reasons. First, the planets have failed to establish an actual controversy under M. C. R. 2.605 which would be necessary in order to pursue claim for the simple reason that the factual record before the court doesn't support uh, the the relief sought. And in any event, the claim has largely moved at this point for the reasons this mind gas just pointed out that the county, uh, counting boards air largely complete now and so the relief is simply unavailable on the first point. No evidence in the record would allow the court to conclude that the plaintiffs have demonstrated the likelihood of success on the merits, which is your honor pointed out a moment ago is a necessary finding in order to enter injunctive relief here. Um, the the affidavit obviously is hearsay, Your honor, at least single hearsay, perhaps double hearsay on that that is simply insufficient under any any standard thio justify declaratory relief. Moreover, there is. We've outlined in our papers, and I know your honor hasn't had the chance to review those yet. They see the wrong defendant. The secretary doesn't operate thes counting towards the county's do. They are created and operated by local government, those local governments. The counties were not named as defendants, nor could they have been before this court whose jurisdiction is limited under M. C. L. 600.64 19. Eso that z obviously a problem with the relief side on the merits, as council just pointed out a moment ago. There's no right to video surveillance of voters casting balance, whether they're casting him in person or at drop boxes, And council doesn't even really pretend otherwise. He cites no statute on DNO case law that suggests that a voter or a political party or candidate has a right to surveil