Judge Cynthia Stevens issued her verbal intent and a hearing conducted via zoom, just two days after election day. She said a formal written decision was forthcoming. This case donald j. Trump former president inc. Versus Jocelyn Benson in her official capacity as secretary of state. An initiale to make apology, Emergency Matters usually emerge in the middle of other matters, that is their nature. Matteray at 4 00, this went to court of claims. At the time it was filed. There is a complaint for declaratory relief. While it was a verified complaint. It did not have an affidavit affixed. It did not have a request for a temporary restraining order without notice attached. We did not have a request for injunctive relief attached. Later in the evening the Democratic National committee after hours filed a petition to intervene. This morning sometime around the supplemental papers were filed on behalf of the plaintiff. The first of which was something that addressed supplemental evidence. T was an affidavit additionally there was a petition filed for injunctive relief. Withoutt determined proof of service, because of the nature, that i needed to put it in the middle of our case vault and let parties come forward and say what they need to say and as quickly matter as they could. The court has not ruled on the petition tothe intervene on behalf of the democratic party. But affords them the opportunity while the court made a determination of any of whether or not intervention would be granted. The court sets a hearing for callsthinking my morning for the court of appeals would be done by then. Unfortunately one of my colleagues had no power. It took us until about 10 40 to even begin the court of appeals docket and it just concluded. And apologetic about that appreciative of the patients of all parties in this case. Read of thea speed multiple pieces of paper that were filed. File aendant did response to the request for injunction. Ago, filedtes papers which i can tell you i have in front of me but i have not read. The way in which i am going to proceed today, without affording the proposed intervenor, interventions. This has to be managed today and quickly. Im going to give them the courtesy of brief oral comments. I will give them that courtesy after the named party has spoken to whatever issues they deem appropriate. Are we clear on how we are going to try to get through this . We are. Counsel forn with the plaintiff. Thank you. Good afternoon. Are our perspective, we asking the relief the court to grant is simple. Direct the secretary benson that the election county authorities and county board handling ballots allow challengers who are qualified under michigan statute to participate and observe. Many of the ballots have been counted. [captions Copyright National cable satellite corp. 2020] [indiscernible] campaign andrump their designated challenges be allowed to participate in meaningfully observed. Understand andto are for me to give interactive early, i would have to find there is an immediate threat of irreparable harm. And a substantial likelihood of success on merit. In order for me to make that determination that you are being deprived of meaningful participation, i have to make factfinding. Affidavitt the repeatedly, it appears to say. Person who has been approached by another human , but described as a participant in the process. That individual who is unnamed indicatedmation that there was malfeasance. Best, is a at hearsay affidavit. That addresses a harm that would be significant. That is what we got. We have an affidavit that is not firsthand knowledge. If there is something in that affidavit that would indicate that the malfeasance observed activity would be a deprivation of the rights of poll watchers. I want you to focus my attention on that. , this wasd was a note an election inspector who was appointed according to the affidavit. That was handling the process. In,nce that had been sent after on november 4, after be aboutwork noted to ballotd timely a received timely. Sandy. The person did not have knowledge of this. They had direct firsthand knowledge of the communication with the election inspector. Which is generally known as hearsay. Courts have not say that is hearsay. That is firsthand knowledge of what she observed, which is a physical copy of the note she was provided. I can going to see if pull up this copy of the note. [sirens] while i am doing that you can continue our givens. Thank you. The gist of what we are asking the court to do and where we have a concern is not just this specific instance but what we which is the election law has specific duties for challengers. Who are able to observe the processing of ballots. Feared avered they were not given that opportunity. That would be one of the who wasaintiffs excluded from the Oakland County , county board. Because other than being a candidate what is his his status . He is not a candidate, he is a challenger, who was removed from the counting board. Saidllegation is what he and in addition, the Trump Campaign has a right as a party and candidate to have challengers meaningfully participate. That is what we are asking the court to allow secretary benson to allow. What do you mean by meaningfully participate . What do you believe they have not been afforded the opportunities to . I would refer the court to 168. 733. Tatute 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. That is what we are asking direction from secretary benson to the local counting board, that they make sure they comply with this. I can go through the statute. I dont want to take the courts time to read it. Of thee it in page 4 petition. Ok, you may proceed. That is the relief we are asking the court to grant, your honor, directing secretary benson to allow challengers designated by they can be democrat or republican, but they have meaningful opportunity to oversee and observe the conduct of the election, at not to exclude them, but to allow them to see how the election inspectors are in fact processing the ballots. And authenticating them and adjudicating them. Ive gone back to your affidavit, and what i have is something that says entered, 2 tove dates as of 11 11 4. And it says that this was it says the individual who spoke to her was a poll worker with no name. Ok. That is correct, your honor. When you read the affidavit, you she indicated, herself an attorney, a michigan attorney, indicated that the poll worker indicated that this was in fact she was directed to basically predate judge stephens i understand. Im still trying to understand hearsay. Isnt well, i judge stephens i understand that she heard someone say to her, but the truth of the matter that you are going for is that there was an illegal act currently. Because other than that i dont know what it is. In terms of the hearsay point, this is a firsthand, factual statement made by ms. Theor and, and she made statement based on her firsthand physical evidence and knowledge. Stephens i heard somebody else say something. Tell me how that is not hearsay . Come on, now. It is an outofcourt statement offered for the truth of the matter therein, right . Truth is is if the that somebody told her something , not what they told her, that is what thing that is one thing. You want me to find the truth, or at least a scintilla of truth, and what she says the contents of that conversation is. Right . What we are asking the court the basis on again, it is not based on the relief we are asking is not based on justice affidavit, the relief we are 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 168 point 73 judge stephens and i have to find that they are not doing that to have a basis to tell them to do that. Youre telling me that in the complaint i am going to see that he says he was ousted. Does he tell me the circumstances under which he was ousted . He was a designated, qualified challenger, and he was told to leave the counting board. That is the allegation that we make, the statement we make in. He verified complaint judge stephens ok, you may proceed further. I come back to what we are asking the court to do. It is simply to direct secretary benson to have the local election counting boards provide meaningful opportunity for challengers from the Trump Campaign as well as frankly, 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 observe the process. That is the relief we are requesting. Judge stephens ok. A response from the secretary of state i dont know who is responding, but good afternoon, your honor. I know the court is aware that we have filed a response. That response was to the emergency motion for a declaratory statement that we received on december 4. We did not receive a motion for injunctive relief that was purportedly filed we are not sure of what that pleading does. The getting a response that we already provided. I dont have a second motion. Judge stephens what motion . The original complaint didnt have a motion. The complaint that we have was accompanied by an emergency motion for declared relief. Judge stephens we got a summons. Ok, all right. For was the request injunctive relief served . Client onthe behalf of the plaintiff . Your honor, if i could address that question, it was served electronically on behalf of the plaintiffs to secretary benson as well as the others. Where wead a process try to physically deliver it to the secretary of states office, but the office was closed and they could not get access. But clearly the secretary of state has copies of all the pleadings. I do not, your honor. We do not have a copy of the motion for injunctive relief. If that can be done i would be happy to look at it. I am pointing out that we filed a response to the initial motion, and that is what i can address today. Judge stephens you are describing an initial motion. In a differentg way than i do. I got a summons and complaint, period. Then i got additional papers this morning. And a copy of the proof of Service Later this morning. That we are substantively talking about the same thing. They just came in pieces. That could be, your honor, and i dont know if it makes any difference. The arguments would not be any different in a motion for injunctive relief. In our response, there are numerous defects and problems within meetings that have been filed in this case. Most significantly here, there really isnt any relief that can be granted at this time. I mean, the counting boards are done. We have finished counting ballots in michigan, and so there isnt any there are no more kind words functioning as far as challengers and inspectors, reviewing a b ballots and processing right now. Those functions are complete. Andeast as of this morning, so to the extent that the plaintiffs are requesting that we help the processing of ballots so that challengers can have some sort of opportunity to review the process, there isnt any more opportunity to do so because the counting boards have completed their functions. So the system has really failed on the relief on the relief that they are requesting in this case. We planned that out in an argument to some extent. Now that were talking about an argument. Im also a little bit confused today as to their argument about the respect to the challenges. The basics of their pleading is that the challengers were being denied an opportunity to review Surveillance Video. That is the basis of their complaint and the emergency motion. Theyr a meaningful review, want some sort of opportunity to review the Surveillance Video of drop boxes. That is how we have addressed our pleadings. That is how it was played. Judge stephens they did say in the second paragraph that the main plaintiff was removed. But that is where it is confusing because they are pleading to talk about election inspectors of both parties not being present for various aspects of the counting board process. Inspector,n election he is a challenger. With respect to what the , he doesnte saying explain where he was excluded with the counting board, but why he was excluded, and that doesnt even really feed into it doesnt feed into the claims, which their arguments are that election inspector from both parties are not always present at the counting board. The challengers are not having the opportunity to review Surveillance Video. Im just going with what the pleadings are, your honor. It is not matching up with the arguments. Again, the counting boards are complete. We have moved onto the second phase, and all of this come all of the unofficial results and the ballots and all that will be moving on to the county the county board to look at. Cane isnt any relief that be given at this time. Allowing more opportunity to stick some alleged irregularity with the parties present for these functions. That is what we have physically responded in our response. You even get down into the what they have there, there isnt anything to it because there is no right to review the Surveillance Video, and there isnt really any obligation, as we read the statute, that somehow the election inspector of both parties has to be present, with some of the places of the absent voter counting board. I feel there is a this connect between some of the argument that we have heard today. Judge stephens on behalf of the proposed good afternoon, your honor. Kevin hamilton for the Democratic National committee. First, i would like to thank your honor for the opportunity to appear, and i will be brief. I believe the motion should be denied for several reasons. First, the plans have failed to establish an actual controversy 2. 605, which would be necessary in order to pursue a claim, for the simple reason that the factual record before thecourt doesnt support , just pointed out that the counting boards ours largely complete now, so the relief is simply unavailable. On the first point, no evidence in the record would allow the the o conclude that and necessary finding to enter injunctive relief here. Affidavit obviously is hearsay,perhaps double and that is simply insufficient under any standard to justify declaratory relief. Moreover, as we have outlined in our papers, and i know your honor hasnt had the chance to review those yet, they say the wrong defendant. The secretary does not offer the counting boards, they are created and operated by local governments. Those local governments were not named as defendants, nor could they have been before this court , whose jurisdiction is limited 600. 6 419. That is a problem with the relief sought. On the merits, as counsel pointed out a moment ago, there is no right to video castingance of voters ballots, whether in person boxes. No statute and no case law suggests that a voter or a Political Party or candidate has a right to surveillance or review Video Surveillance of voters casting ballots. If therey event, even were some sort of factual record and theres not that might support the court in finding a violation of the challenger statute, michigan law provides a remedy for that. It is a criminal penalty. The legislature thought about that. What the legislature did not provide is any sort of Statutory Authority for a court to conclude that some violation has occurred, and therefore you should stop the count, or answer some broad relief. There is no authority for that proposition at all. There just isnt any. There is a period of elections clause claim and an equal protection claim. Neither of those find any support in the law. The Trump Campaign has asserted similar equal protection claims elsewhere in this during the course of this campaign, and they have been uniformly rejected. The trump case in pennsylvania was a similar claim relating to restrictions on pull ledgers and challengers. The record rejected there for the exactly for exactly the reasons we are talking about here. Aced on a speculative event that falls short of the requirement to establish a concrete injury. I will not go through the other cases, your honor. They are cited in the brief and we quote from them. For all of those reasons, we think the motion should be denied. It is unsupported by the factual record. The only evidence before you is both irrelevant to the actual claim in the motion, in the hearsay, as your honor has already noted. The claims are unsupported by the law, and they named the wrong defendant. Simply anthis is effort to stop the counting of ballots cast i michigan voters cast by michigan voters come who are fully entitled to vote and fully entitled to have their ballots counted properly in accordance with michigan law. There is no support for this motion, and there is no support for this litigation. The motion should be denied and the lawsuit should be dismissed. Thank you, your honor. Judge stephens is there anything else you would wish to say, sir . I should have set on behalf of the petitioner. Ok. Thank you, your honor. Judge stephens i did have a couple of questions. I think it was last week that we had a case that was filed against the secretary of state regarding this meaningful access. Am i remembering correctly . There was a case about challengers. Have been many. Judge stephens that was resolved by the party, and the question there was to have the secretary of state revise her instructions to the local election official regarding issues of covid19. And in that case and in that case, the question was, how challengerualified have meaningful access to execute their function . Parties entered into an agreement, and a new directive was issued by the secretary of state to the local elected official to the local election official regarding distancing, etc. , thatas a recognition while the secretary of state has a future function in this thanoral process, other giving directives and intervening in specific circumstances where stored mary relief is requested and warranted, that the secretary does not conduct local elections, nor does the secretarys office have responsibilities for the initial ballot tabulation. I need help from you on how the party against whom you have filed suit is a party who has the capacity to do what you have asked, even if it is warranted. The book of thank you, your honor. Is michiganson chief election official, of course, and the local election jurisdictions act under her direction. She does have the responsibility to oversee the conduct of the election. In fact, there was the Western District of michigan federal case where they did in fact name secretary benson, and then they named a number of local election jurisdictions, and in that case, the secretary of state responded by saying that the local should notrisdiction have been named and she should be the sole defendant, and that was done. Judge stephens but what was the issue there . There have been so many, and for every court of claims case, and there have been two federal cases, so i know why there is confusion. There was the case file in the mailing regarding the of absentee ballot applications. There was a case file regarding the processing of absentee ballot application signatures. And a few others. So i dont know what that Western District case was about. But every case that i have had, it has been acknowledged, and it is my understanding of the law in the state of michigan that while she does provide supervision in the broader sense, and she does provide shection, that it is not precinct be saying at 5, district 6, you mr. Challenger, you miss challenger, may be three feet away, two feet away, you may approach the pole book and take it in your hands, you may not. So im trying to understand, if this direction for meaningful access she has issued a directive for what was described as meaningful access, which enumerated the functions of challengers and poll watchers from the statute. She has issued that. Correct. Judge stephens at best with you gave me, mr. Host and says that he was in fact the quick credential iced official, and he says he was ousted from a. Olling place, cameys that another person to her at a specific place, and told her that there was activity going on that was inappropriate. Your pleading spoke in significant detail about what credentialiced withfficials spoke particularity about certain videotapes. I am in a quandary here. Try to honor, i will assist in clarifying the extent that there is an issue. What we are asking when we talk about the videotapes and the ballot boxes, those are essentially equivalent to a polling place, and the statute that was adopted by michigan literally last month provides for Video Surveillance of those ballot boxes. The reason for that is to provide transparency of the election process so when the ballots are authenticated and counted, that there is an opportunity to observe that. Observe the casting of the ballots in the ballot these remote ballot boxes. That is the part of the complaint that asks to have challengers have access to the videotapes, the Video Surveillance. Put a pinhens let me there. So when you were describing meaningful access, you wanted this court to order ignore the fact that counting is done. You wanted this court to order that each and every videotape be presented to, or be available for challengers prior to the counting of the ballots . That would be the request that we have, that the challengers have the opportunity to review the videotape, which is in the possession let me be even more precise. The request is that secretary benson issue a directive to the election jurisdictions making that video available so that challengers can have some transparency and observe the casting of ballots in these remote ballot drop boxes. Judge stephens remote ballot drop boxes. Your contention is a requirement that for every dropbox, that ofre be a videotape made that dropbox. Is that correct . That is what the michigan statute provides, your honor. And the drop boxes were placed worthy dropbox is not placed prior to the passage of that statute . The statute makes a distinction between drop boxes placed prior and drop boxes placed after october 1. The statute requires Video Surveillance of the ballot drop boxes, and that requirement becomes effective, and i will quote it to you, i just dont have it in front of me right now , that is i believe october 1 and thereafter. All we are asking is that a challenger be able to review that video for those ballots that are processed out of those video drop boxes. Judge stephens so just a question as of this point, there is a dropbox. Once the ballots are taken out of the dropbox, are they segregated based upon which dropbox they came from . We have asked that that there is other litigation by other parties that asks that they be segregated. Judge stephens are you saying there was a statutory requirement that they be segregated . There is not a statutory requirement that day be segregated, but there is judge stephens are you alleging that local Election Officials separated the boxes based upon which dropbox . The request we have judge stephens that is not what i am asking you. Im asking you as a matter of fact, are you alleging that the individual Election Officials had a practice that segregated the ballot per ballot dropbox . I cannot tell you, your honor, because there are so many election jurisdictions in michigan. We did which ones did that and which ones didnt. I cannot make a representation as to what each jurisdiction did do. Judge stephens we know maybe we know there were additional dropbox is added. I do not know if there were not. I do not know if there were not. We do not know whether or not the content of those drop boxes as of october 2 were segregated from those there before october 1. We just know that somehow those ballots were taken from their secure dropbox to the local election official and at some point were processed. That is all we know, right . That is correct, your honor. I would add that we also know there was a legal requirement of having Video Surveillance. The reason we think that is important is because for a challenger, for one of the parties to have the kind of transparency we think elections in michigan to have that surveillance, to have the opportunity for a challenger to see that video is what we requested. In addition to having challengers present. This goes to the theme of the whole complaint that we have filed. To be able to have transparency. To be able to have challengers observe the casting of ballots. Judge stephens i understand that you believe the casting of ballots includes dropboxes, almost as if it were a drug deal follow the chain of custody, i , understand. Is there something the parties dont seem to disagree. Or maybe they do. Do you have knowledge of dropbox drop boxes that were created post october 1 . We do not. The secretary of state and the bureau of elections does not maintain or possess information about when a particular dropbox was installed by a jurisdiction. We would not know if it existed before october 1 or after october 1 necessarily. Judge stephens ok. All right. Please continue. Your honor, i come back to my central point. I have nothing further to really add to that. The request we have is that the challengers be able to access the process, be present in the processing of the ballots as provided in michigan statute and that includes to be meaningfully available to observe the process and what we mentioned on the drop boxes as they would have the ability to review the video of the dropbox as required required by michigan statute. Judge stephens i am going to assume and presume that the plaintiffs motive in filing are as they are stated to maintain the integrity of elections. I am presuming the respondents and the proposed intervenor shared those values. The issue in front of me is whether or not i would issue extraordinary and extensive relief based upon the record before me. The record before me, at best, is an assertion that the secretary of state had direct authority over the individuals individual precincts and polling places, the counting process, the transport of all ballots, the observation process during the counting of those ballots. That is a legal assertion. Factually there is a claim that , there has not been an opportunity to observe videotapes of certain ballot dropboxes that were created after october 1 with no note as to where they are, who created them, nor a statutory assertion that it was the duty of the secretary of state to maintain a listing of those drop boxes so that she could actually order that the videotapes be presented if there is a legal right to do so. There is an allegation by the named individual plaintiff in this case that a qualified elector and credentialized poll official was at some point in time removed from the counting process. The circumstance is unknown. There is an affidavit that an individual, i am told a lawyer, member of the bar, was approached by another human being who was purported to be a poll worker and that human being told her that someone else told that poll worker to alter a date of receipt of a ballot from the day after the election to the day before the election. And that this occurred on november 4. The request for release as i understand it is going to be denied in a written order, which will not come out today. It will indicate that the basis for denial are these first, the secretary of state, the supervisor of elections, provides direction to the local official as to how they can comply with the laws of the state of michigan. She has issued such directives, particularly one in case before me which indicated that meaningful access and an outline of each of the obligations and opportunities and responsibilities of poll watchers was elucidated. Access to videotapes was not a part of the access addressed because they were dealing with active polling places, i will acknowledge that. In this instance, where the issue is the daytoday conduct of the vote count, the individual who bears that responsibility, absent the secretary of state removing them from their responsibility because of malfeasance, lied with the local election official. The relief is completely unavailable through the secretary of state. Additionally, even if this relief were available, as opposed to when the suit was announced yesterday morning, it was filed at 4 00, at what at which point the count had largely proceeded. As of this point, the essence of the count is completed. In the relief requested to observe the videotapes is completely unavailable. The court would finally find that as to the one issue of which relief is arguably available, that on this factual record, i have no basis to find that there is success on the merits as it relates to this defendant nor am i convinced that there is a clear legal duty on the part of anyone to manage this issue. I will endeavor to get an order out no later than tomorrow afternoon when i have both an afternoon court of appeal case call and a full case Court Case Call tomorrow morning. With that, thank you for your presentation, and would adjourn this matter where i leave i believe everyone here once to wants to have a Fair Election process. Thank you, your honor. At cspan. Org alexion. Announcer a look at where the Party Balance in the current in the senate currently stands republicans and democrat are split with 48 seats on both sides. There are four races that must be decided to declare which party will hold the majority when the new congress begins. Announcer continue to follow vote counting on cspan. Org election. Use our interactive Election Night map for the status of the president ial race. For the popular vote tally and the votes counted in undeclared states. See the is also very house and senate race and the current balance of power in congress. Watch statements from President Trump and joe biden as well as key victory and concession speeches, and those from past elections. Find it all on cspan. Org election
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