Tuesday's Michigan election could spark 'unprecedented' fights over ballots, canvassing

Battles over voter registration, absentee ballots and election equipment are expected to intensify Tuesday in Michigan two years after supporters of former Republican President Donald Trump lodged a months-long campaign challenging the results of the presidential election.

Clerks, lawyers and poll challengers said they're ready for what lies ahead and have already begun to fight in court over election administration at the state and local levels.

Lawyers involved in defending against election litigation are warier of disruptions on Election Day and "frivolous post-election litigation" than they ever have been in the past, said David Fink, a Bloomfield Hills attorney who this year is defending the city of Detroit in pre-election suits.

"Everybody has to be more careful now to be prepared for the unpredictable litigation which is often completely untethered from reality," said Fink, who also defended Detroit against election-related litigation in 2020.

The Election Integrity Force and Fund, a Troy-based nonprofit that has advanced unproven claims of election fraud, is training and deploying poll challengers in nearly all of the state's 83 counties, said Sandy Kiesel, executive director of the group. On Thursday and Friday, the organization was sending letters to numerous clerks regarding absentee requests where the organization determined "something doesn't look right," Kiesel said.

Canton Township Clerk Michael Siegrist said his office received143 unsubstantiated absentee ballot challenges from the group Friday using "old data." Challenges are not legal before Election Day, Siegrist said.

Kiesel said her group is studying address and death records to determine whether absentee voters should be voting in Michigan.

"Our goal is not to make work for the clerks but try to be their partner and help them with things," Kiesel said.

Voting rights organizations said they’ve trained hundreds of people in Michigan to volunteer at polling places and absentee ballot counting boards on Tuesday, and have lawyers preparing pleadings for potential legal action in advance. A coalition of groups is ready to counteract the efforts of “election deniers,” said Khalilah Spencer, president of Promote the Vote.

Aghogho Edevbie, state director of All Voting is Local, wouldn’t disclose how many people are part of the coalition but said they are “ready and are capable of standing up against whatever happens in the next couple weeks.”

“The coordination that we’re seeing across all of the different groups in this space is unprecedented,” said Edevbie, who has been working on election protection since 2010. “I think we are super coordinated in a way that I haven’t seen in past election cycles.”

The courts have tossed out or halted two challenges to the state's election administration — one that sought to overturn new rules for poll challengers, and a second that challenged the political makeup of Flint's election inspectors. A third challenge seeking to require required Detroiters to cast votes at polling precincts or pick up absentee ballots in person is likely to be ruled on Monday.

Secretary of State Jocelyn Benson said her office has been working with local and state law enforcement and election officials to ensure safe access to voting booths and a smooth counting process across the state. Law enforcement officers have a deeper understanding of election law in 2022, are in regular communication with local election officials and are ready to respond if needed, Benson's office said.

Election Day challenges

Lawyers and poll challengers on both sides of the aisle are preparing to disperse throughout the state to observe and secure Michigan's elections.

Kiesel said the Election Integrity Force and Fund's intent in training and deploying challengers across the state is not to disrupt the process. The group's training of volunteers has emphasized de-escalation tactics, she said.

But the group's public relations point person, Braden Giacobazzi, was removed from the Detroit absentee voter counting board as recently as the August primary "for harassing and agitating," Detroit elections director Daniel Baxter told MLive.

"We see the poll challengers as a critical step in the process to make sure that the law is followed and things are done right," Kiesel said.

The Michigan Republican Party plans to have an "increased amount of poll challengers" across the state "so that if there's an impropriety it can be reported to our attorneys and dealt with within the bounds of the law," state GOP spokesman Gustavo Portela said.

The state party was involved in the suits challenging poll challenger guidelines and Flint's election inspector makeup, but is not involved in secretary of state candidate Kristina Karamo's lawsuit seeking to block Detroit mail-in ballots, Portela said.

In an interview last week, Michigan Democratic Party Chairwoman Lavora Barnes said the party’s election protection program included attorneys and a hotline through which voters could call for help if they have problems at their polling places.

“It is bigger this year than past years,” Barnes said of the initiative.

Longtime elections lawyer Mark Brewer, a former Michigan Democratic Party chairman, said he will be working with the party to ensure voter access and deal with frivolous challenges in precincts and within absentee voter counting boards.

"We'll see if it pans out," Brewer said of expected challenges. "We hope it doesn’t. But after 2020, the other side has really redoubled its efforts to cause disruptions in the election process.”

Following the equipment

Many eyes Tuesday will be on Michigan’s 1,520 city and township clerks and 83 county clerks who will administer the election.

After the 2020 presidential election, some local clerks openly advanced unproven theories that fraud affected the results. At least three clerks handed over voting equipment to a group of self-described experts who were investigating and voicing fraud claims, according to Michigan Attorney General Dana Nessel’s office.

In Aug. 26 letters, Michigan's election director, Jonathan Brater, told Irving Township Clerk Sharon Olson, Roscommon County Clerk Michelle Stevenson and Lake Township Clerk Korinda Winkelmann they had to report five times from September through January on whether they've safeguarded their voting equipment after previously giving away tabulators.

"If you fail to provide these confirmations, you will be instructed to refrain from administering any elections in Irving Township and legal action will be taken as necessary to enforce this instruction," Brater wrote to Olson.

Olson was part of a September lawsuit that focused on Michigan's electronic voting system software. According to the minutes of an Oct. 18 Irving Township Board meeting, Olson said she had been told that if she doesn’t follow “certain steps” she would be removed from running elections.

“I have a problem with steps they are asking me to take,” Olson told the township board, according to the minutes.

However, Olson apparently has complied with the reporting the elections director requested. In a Tuesday email, she confirmed to the state Bureau of Elections that she would use the tabulators amid concerns she might pursue a hand count of ballots instead.

“Ballots will be tabulated,” she wrote to The Detroit News in another email on Friday.

In an Oct. 28 email to Michigan clerks, Brater noted that provisions of Michigan law “clearly and expressly require that ballots be counted by a certified electronic system.” Brater said in the message that there had been “numerous communications sharing false claims, misstatements of fact and legal arguments that are baseless and incomprehensible.”

“Unlike clerks, the individuals making these claims are not responsible for conducting elections under the requirements of the Michigan Election Law,” Brater wrote.

Canvasser role scrutinized

In the weeks after the 2020 election, the national spotlight was turned onto a state board that rarely got any attention, when individuals pushed for the bipartisan Board of State Canvassers to reject certification of Michigan's presidential election results.

The board certified the election with three yes votes. Two years later, with three of the four canvassers replaced, members are preparing for the little-known state board and its county-level counterparts to be under scrutiny again.

In a call last month, Republican state board Chairman Tony Daunt and Democratic Vice Chairwoman Mary Ellen Gurewitz outlined the ministerial role the board has in certifying the election and emphasized their commitment to carry out that task.

"The vast majority of the work on these canvasses — in fact, pretty much the entirety of the work aside from adding the results and totals from 83 counties — occurs at the county level," Daunt said. "Our role as the Board of State Canvassers is math, to make sure the staff has added correctly and to certify those results."

Gurewitz, a former Democratic elections lawyer, noted the board also is prepared to intervene if a county board fails to adjudicate any errors and certify local results. Several Republican county board members across the state have been replaced over the past two years, some of them with individuals who sought to undermine the public's faith in the 2020 vote.

After the November 2020 election, two Wayne County Republican canvassers initially rejected certification and deadlocked the board. The two GOP canvassers later relented, voting to certify while demanding the secretary of state's office conduct a "comprehensive audit" of precincts with unexplained out-of-balance tallies. Republican canvassers William Hartmann and Monica Palmer, who chaired the Wayne County Board of Canvassers at the time, later attempted unsuccessfully to rescind their votes to certify the results.

If county canvassing boards fail to certify an election within 14 days, the law requires the Board of State Canvassers to review the county's materials and certify the election for them, Gurewitz said.

"We are prepared to take care of it, if in fact that does happen," she said.

Daunt said he remains hopeful county canvassers do their duty on certifying the election and noted those who don't would effectively shut themselves out of the process.

“It has the reverse impact of what somebody who's refusing to do their job is intending because I think you’re taking yourself out of the process and you're removing your ability to see those results,” Daunt said.

Brewer expects more scrutiny of the canvassing process than in 2020, if only because more people know about the board's existence than they did prior to the 2020 election.

"I and many, many others are going to keep an eye on those (county) boards in the two weeks they have to certify," Brewer said.