Detroit lawyers urge judge to reject latest Wayne County audit request

Detroit lawyers asked a Wayne County judge Thursday to reject the latest request for an audit of the county's election results and sanction the lawyer who asked for them. 

Noting Secretary of State Jocelyn Benson already promised an audit, Detroit lawyer David Fink argued poll challengers pleading their case before Wayne County Circuit Judge Timothy Kenny were really seeking to undermine public confidence in the vote. Democratic President-elect Joe Biden won Michigan by 154,000 votes over Republican President Donald Trump.

"There’s nothing new here," Fink argued. "This is just a warmed over argument repeated again now to have another bite at the apple. But it's not a bite at the judicial apple. It’s a bite at the apple of public confidence.”

But David Kallman, a lawyer for the poll challengers in the "Costantino" case, argued he had the right to demand an audit under a 2018 constitutional amendment.

In addition, he argued a state Supreme Court opinion in November supported his request, noting three Republican-nominated justices argued the courts should address the rule where it is silent on the type and time period of the audit promised in the Michigan Constitution. 

"What we’re asking for is what’s clear under this statute, is that the county clerk perform the audit under the direction and supervision of the secretary of state," Kallman said. 

Kallman asked specifically for an audit of the accuracy and integrity of the Wayne County results and that it be completed in an expeditious manner before electors are officially chosen. 

Kenny said he would issue a written opinion by noon Tuesday, which is the day states are supposed to pick their electors without inviting potential congressional intervention. 

Kallman said an expeditious review would allow plaintiffs time to seek relief if serious enough issues arose during the audit. But Fink accused him of seeking to undermine public trust or, ultimately, aiming for the Legislature to select electors more favorable to Trump. GOP legislative leaders have said that's not allowed under state law. 

"The constitutional right must have some meaning in terms of what is happening in the real world," Kallman said in arguing for an expedited audit. "We’re not here to change results. We’re here to ask for an audit. As the Constitution says, we can ask for it.”

Several lawyers for defendants in the case urged the judge not to grant Kallman's request, arguing it would give Trump's campaign a small success they can tweet to followers and further sow distrust in the system. 

"They want to send the message that the city that wouldn’t vote for Donald Trump is corrupt, it's dishonest," Fink said.

"This court has the opportunity to shut that off," he said. 

In November, Kenny denied a request to stop the canvassing and certification of Wayne County's election results, noting that Detroit officials "offered a more accurate and persuasive explanation of activity" within the TCF Center the week of the election. He also refused a request for an audit prior to certification.

Poll challengers, represented by Kallman and the Great Lakes Justice Center, had requested an independent audit of the Wayne County election result based on alleged restrictions on poll challengers, late-arriving absentee ballots and clerk's office workers who encouraged early voters to cast their ballots for Biden and Democrats.

Detroit officials refuted each of the claims, which have been addressed multiple times in other lawsuits, legislative hearings and press conferences.

The hearing before Kenny comes 10 days after the Michigan Supreme Court denied the plaintiffs in the Costantino case an appeal seeking an immediate halt to the Wayne County vote certification and an audit of the election there. 

The 6-1 opinion was released about a week after Wayne County's certification process was completed and a little more than an hour after the Board of State Canvassers certified the Nov. 3 election results of Michigan's 83 counties.

Republican-nominated Justice Brian Zahra noted the request was largely moot with the completed certification of results and Benson's promises of an audit in Wayne County and statewide. 

But Zahra also noted the allegations presented in the suit have "raised important constitutional issues regarding the precise scope" of audits promised in a 2018 voting rights initiative and its "interplay" with other election laws. He was joined by Republican-nominated Justice Stephen Markman. 

Republican-nominated Justice David Viviano wrote a dissenting opinion, noting the voting rights initiative passed in 2018 allowed any Michigan elector to request an audit but was silent on what types of audits could be requested, when they're conducted and what evidence an elector would have to show to obtain one. 

The courts must determine the "nature and scope" of the audits indicated in the 2018 petition initiative so the state can determine when an audit should occur and if it can affect the final certification, Viviano wrote.

eleblanc@detroitnews.com