Opposition Brief — Timothy King, et al., Petitioners v. Gretchen Whitmer, Governor of Michigan, et al.

Supreme Court briefJan 14, 2021

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No. 20-815

In the Supreme Court of the United States

TIMOTHY KING, Et Al.,

Petitioners,

GRETCHEN WHITMER,

GOVERNOR OF MICHIGAN, Et Al.,

Respondents

BRIEF OF CITY OF DETROIT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

DAVID H. FINK*

*Counsel of Record

FINK BRESSACK

CITY OF DETROIT LAW

David H. Fink (P28235)

DEPARTMENT

Darryl Bressack(P67820)

Lawrence T. Garcia

Nathan J. Fink (P75185)

(P54890)

38500 Woodward Ave.,

James D. Noseda (P52563)

Suite 350

2 Woodward Ave.,

Bloomfield Hills, MI 48304

5th Floor

(248) 971-2500

Detroit, MI 48226

dfink@finkbressack.com

(313) 237-5037

dbressack@finkbressack.com garcial@detroitmi.goc

nfink@finkbressack.com

nosej@detroitmi.gov

Counsel for Intervenor-Defendant/Respondent

City of Detroit

January 14, 2021

QUESTIONS PRESENTED

Whether Petitioners should be granted the writ

of certiorari where their factual allegations and legal claims

are frivolous and where they sought extraordinary relief that

could not possibly be available even if they stated a

legitimate claim.

Whether the District Court was correct that

Petitioners were not entitled to the extraordinary relief they

sought, the effective reversal of the 2020 presidential

election.

Whether the District Court was correct that

Petitioners’ claims are barred by Eleventh Amendment

Immunity.

Whether the District Court was correct that the

relief sought by Petitioners was moot and whether

subsequent events have further mooted the case.

Whether the District Court was correct that

Petitioners’ claims are barred by laches.

Whether the District Court was correct that

abstention is appropriate in deference to State court

proceedings.

Whether the District Court was correct that

Petitioners do not have Article III standing.

PARTIES TO THE PROCEEDINGS

Petitioners are plaintiffs Timothy King, Marian Ellen

Sheridan, John Earl Haggard, Charles James Ritchard,

James David Hooper, and Daren Wade Rubingh, all of whom

purport to be registered Michigan voters and nominees of the

Republican Party to be Presidential Electors on behalf of the

State of Michigan.

Respondents are as follows: defendant Gretchen

Whitmer, Governor of the State of Michigan; defendant

Jocelyn Benson, Secretary of State of the State of Michigan;

intervenor-defendant, the City of Detroit; intervenordefendants Democratic National Committee and Michigan

Democratic Party, and; intervenor-defendant Michigan

citizen Robert Davis.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................... i

PARTIES TO THE PROCEEDINGS ................................ ii

TABLE OF CONTENTS ................................................... iii

TABLE OF AUTHORITIES ...............................................4

OPINIONS BELOW ...........................................................1

JURISDICTION..................................................................1

STATEMENT OF THE CASE ............................................2

SUMMARY OF THE ARGUMENT ...................................3

ARGUMENT .......................................................................5

I. Petitioners’ Allegations of Fact are Primarily

Deliberate Falsehoods ............................................................... 5

II.

As the District Court Correctly Concluded,

this Lawsuit is Barred by Eleventh Amendment Immunity .. 10

III.

As the District Court Correctly Concluded,

this Lawsuit is Moot ................................................................ 11

IV.

As the District Court Correctly Concluded,

this Lawsuit is Barred by Laches ............................................ 14

As the District Court Correctly Concluded,

this Lawsuit is Barred Under the Colorado River Doctrine ... 15

VI.

As the District Court Correctly Concluded,

Petitioners Do Not Have Standing .......................................... 17

Elections and Electors Clauses ................................. 18

Equal Protection, Due Process and Michigan

Election Law Theories .......................................................... 20

CONCLUSION..................................................................22

TABLE OF AUTHORITIES

Cases

Am. Civil Rights Union v. Martinez-Rivera,

166 F. Supp. 3d 779 (W.D. Tex. 2015) ..............................21

Blachy v. Butcher, 221 F.3d 896 (6th Cir.2000) ..................17

Bognet v. Secretary Commonwealth of Pennsylvania,

980 F.3d 336 (3rd Cir., Nov. 13, 2020) .................. 19, 20, 21

Bowyer v. Ducey, CV-20-02321,

2020 WL 7238261 (D. Ariz. Dec. 9, 2020) ........................19

Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020) .................19

Carten v. Kent State Univ., 282 F.3d 391 (6th Cir. 2002)...10

Chirco v. Crosswinds Communities, Inc.,

474 F.3d 227 (6th Cir. 2007) .............................................15

Colorado River Water Conservation District v. United

States, 424 U.S. 800 (1976) ........................................... 4, 15

Costantino v. Detroit, No. 162245,

2020 WL 6882586 (Mich. Nov. 23, 2020) ...........................6

Courtney v. Smith, 297 F.3d 455 (6th Cir. 2002) ................17

Donald J. Trump for President, Inc. v. Boockvar, No.

4:20-CV-02078, 2020 WL 6821992 (M.D. Pa. Nov. 21,

2020), aff'd sub nom. Donald J. Trump for President,

Inc. v. Pennsylvania, No. 20-3371, 2020 WL 7012522

(3d Cir. Nov. 27, 2020) ......................................................21

Donald J. Trump for President, Inc. v. Secy of State,

No. 162320, 2020 WL 7315923 (Mich. Dec. 11, 2020) .......6

Ex parte Young, 209 U.S. 123 (1908) ...................................10

Feehan v. Wisconsin Elections Comm'n, 20-CV-177, 2020

WL 7250219 (E.D. Wis. Dec. 9, 2020) ........................ 19, 21

Georgia Republican Party v. Secy of State of Georgia, No.

20-14741, 2020 WL 7488181 (11th Cir. Dec. 21, 2020) ...21

Gleason v. Kincaid, 323 Mich. App. 308;

917 N.W.2d 685 (2018)......................................................13

Hotze v. Hollins, 4:20-CV-03709,

2020 WL 6437668 (S.D. Tex. Nov. 2, 2020)......................19

Lance v. Coffman, 549 U.S. 437 (2007) ...............................19

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ...................18

Martel v. Condos, No. 5:20-cv-131, ––– F.Supp.3d ––––,

2020 WL 5755289 (D. Vt. Sept. 16, 2020) ........................21

McLeod v. Kelly, 7 N.W.2d 240 (Mich. 1942) ......................10

Paher v. Cegavske, 457 F. Supp. 3d 919 (D. Nev. 2020) .....21

Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) .............................................................11

Reynolds v. Sims, 377 U.S. 533 (1964) ................................22

Russell v. Lundergan-Grimes,

784 F.3d 1037 (6th Cir. 2015) ...........................................11

United States v. Hays, 515 U.S. 737 (1995) ........................22

Valley Forge Christian Coll. v. Americans United

for Separation of Church and State, Inc.,

454 U.S. 464 (1982) ..................................................... 17, 19

Wood v. Raffensperger, No. 1:20-CV-04651, 2020 WL

6817513 (N.D. Ga. Nov. 20, 2020) .............................. 19, 21

Statutes

3 U.S.C. § 5 ...........................................................................14

3 U.S.C. § 7 ...........................................................................14

M.C.L. § 168.47 ....................................................................14

M.C.L. § 168.843 ..................................................................12

M.CL. § 168.832 ...................................................................12

M.CL. § 168.879 ...................................................................12

OPINIONS BELOW

The District Court’s Opinion and Order denying

Petitioners’ Request for Injunctive Relief is reported as King

v. Whitmer, No. CV 20-13134, 2020 WL 7134198 (E.D. Mich.

Dec. 7, 2020).

JURISDICTION

Petitioners argue this Court has jurisdiction pursuant

to 28 U.S.C. § 1343, because the case purportedly involves a

“significant departure from the legislative scheme for

appointing Presidential electors….” Petition at *4 (citing

Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J.,

concurring)). But, Petitioners do not—and cannot—present

any legitimate argument as to how the State’s actions

departed from the legislative scheme.

Petitioners argue this Court has jurisdiction under

the All Writs Act, 28 U.S.C. § 1651(a), and Supreme Court

Rule 20, because “Petitioners will suffer irreparable harm if

they do not obtain immediate relief … [as] Electors are set to

vote on December 14, 2020.” Petition at *6. Setting aside the

fact that Petitioners do not state a legitimate claim, the

December 14,

2020 deadline

has passed,

rendering

Petitioners’ request fully moot and thus insufficient to

invoke jurisdiction.

STATEMENT OF THE CASE

Petitioners filed this case to halt the orderly workings

of the democratic process, by preventing the State of

Michigan from certifying the electoral college results for the

November 3, 2020 presidential election. The City of Detroit

(the “City”) intervened to protect the rights of its citizens and

because most of the allegations of purported fraud are based

on allegations relating to the processing and tabulation of

absentee ballots by the City.

There is no question that the District Court was

correct when it denied Petitioners’ request for injunctive

relief. Petitioners’ factual allegations have no merit. As

detailed in the City’s Motion to Dismiss and Motion for

Sanctions, both of which are pending as of the date of this

brief, this case is predicated almost entirely on falsehoods.

See City of Detroit Appendix (“COD Appx.”) 001-274.

Nothing Petitioners allege could possibly support an

injunction that would prevent the vote of every single

Michigan citizen from being counted.

SUMMARY OF THE ARGUMENT

Petitioners have not made—and cannot make—

a colorable argument in favor of this Court granting the writ

of certiorari. Nor can they make a colorable argument in

favor of bypassing the Sixth Circuit Court of Appeals. The

“facts” in the Complaint have been rejected in numerous

courts and debunked every time they have been tested. This

unprecedented case was predicated on an extraordinary

collection of intentional falsehoods and startlingly-weak

“expert” reports.

As the District Court concluded, the case is

barred by Eleventh Amendment Immunity.

The District Court was correct that this case is

moot. Even by December 7, the date the Complaint was filed,

the time had passed to provide most of the relief Petitioners

requested. Numerous subsequent events have further

mooted the claims. Petitioners asked the District Court to

enjoin the Michigan Secretary of State and Governor from

transmitting election results to the Electoral College or to

transmit results somehow stating that President Trump was

entitled to Michigan’s electoral college votes. That request is

moot; the actual results were sent. Petitioners asked the

District Court to order “that no votes received or tabulated

by machines not certified as required by federal and state

law be counted.” But the results have already been certified.

The electoral college for each State has met and sent results

to the United States Congress. And, Congress has counted

the results. The election is over. This case is moot.

As the District Court found, the case was

barred by laches because, Petitioners “waited too long to

knock on the Court’s door.”

The District Court was correct that abstention

was appropriate under the doctrine announced in Colorado

River Water Conservation District v. United States, 424 U.S.

800 (1976), because the same allegations and claims were

being litigated in Michigan state courts.

As the District Court concluded, Petitioners do

not have Article III standing to pursue their purported

claims under the Equal Protection or Elections/Electors

clauses.

ARGUMENT

Petitioners’ Allegations of Fact are Primarily

Deliberate Falsehoods

Supreme Court Rule 15 states that a brief in

opposition to a request for certiorari “should address any

perceived misstatement of fact or law in the petition that

bears on what issues properly would be before the Court if

certiorari were granted.” Here, the allegations of purported

facts made by Petitioners would not properly be before the

Court if certiorari were granted, because Petitioners appeal

from the denial of an injunction that they frivolously

requested. The underlying factual claims are irrelevant,

because, as the District Court concluded, Petitioners request

failed on numerous legal grounds, such as mootness,

Eleventh Amendment Immunity, laches, abstention and

lack of Article III standing.

That said, it must be noted that nearly all of

Petitioners’ allegations are deliberate falsehoods. It is

unlikely that any other party has sought such extraordinary

relief—overturning the results of a democratic election—

based on such a flimsy and false pretext. The allegations of

“electoral fraud” in Michigan are premised on supposed

violations of state law during the City of Detroit’s processing

and tabulation of absentee ballots. The rest of the allegations

appear to be intended to show that bad actors could change

election results. None of the allegations are true.

The allegations relating to the City of Detroit have

been presented to federal and state courts in Michigan at

least nine times since the November general election. In the

cases that were not withdrawn before a ruling could be

entered on the requested injunctive relief, the court either

found the claims to be without merit or not worthy of an

injunction. In fact, Michigan’s Supreme Court has now

considered these allegations in three separate post-election

lawsuits and each time concluded that the plaintiffs were not

entitled to an injunction. See Costantino v. Detroit, No.

162245, 2020 WL 6882586 (Mich. Nov. 23, 2020); Johnson v.

Secy of State, No. 162286, 2020 WL 7251084 (Mich. Dec. 9,

2020); Donald J. Trump for President, Inc. v. Secy of State,

No. 162320, 2020 WL 7315923 (Mich. Dec. 11, 2020).

Petitioners recycle the same affidavits and same

allegations which were rejected in the other cases. For

instance, the Complaint recirculates the falsehood that

Republican challengers were not given “meaningful” access

to the ballot processing and tabulation at the Absent Voter

Counting Board for the City of Detroit. Pet. Appx. Ex. 1, R6,

¶¶ 13, 42, 47, 57, 59-61. This claim was disproven before

Petitioners raised it here. As Michigan’s Wayne County

Circuit Court concluded the first time this claim was

addressed, while six feet of separation was necessary for

health reasons, “a large monitor was at the table where

individuals could maintain a safe distance from poll workers

to see what exactly was being performed.” COD Appx. 27587; Costantino v. Detroit, Opinion and Order, Wayne County

Circuit Court Case No. 20-014780-AW (Nov. 13, 2020).

Similarly, the Complaint repeats the false claim that

Republican challengers were exclusively barred from

entering the Detroit absentee ballot counting center. Pet.

Appx. Ex. 1, R6. In fact, there was a short period of time,

where

Republican

and

Democratic

challengers

were

“prohibited from reentering the room because the maximum

occupancy of the room had taken place.” COD Appx. 275-87;

Costantino Opinion, at *8. As stated by that court, “[g]iven

the COVID-19 concerns, no additional individuals could be

allowed into the counting area ... Democratic party

challenger David Jaffe and special consultant Christopher

Thomas in their affidavits both attest to the fact that neither

Republican nor Democratic challengers were allowed back in

during the early afternoon of November 4th as efforts were

made to avoid overcrowding.” Id. And, it is undisputed that

at all times some Republican challengers were in the room.

The allegations of “pre-dating” (Pet. Appx. Ex. 1, R6,

¶¶ 88 and 90) were also based on claims initially submitted

and rejected in Costantino. COD Appx. 275-87, *4. The

employees were not “pre-dating”; they were accurately

marking dates the ballots had been received, consistent with

time-stamps on the ballot envelopes. Id.

The allegations of ballots being repeatedly run

through tabulation machines in Wayne County, Michigan or

votes being switched in Antrim County, Michigan were

proven false before Petitioners latched on to the conspiracy

theories and alleged them in this case. The actual canvass of

votes in Wayne County conclusively disproved any claim of

ballots being counted more than once. COD Appx, 288-302;

Affidavit of Chris Thomas, ¶¶ 18-20. Similarly, the hand

recount audit in Antrim County conclusively refuted any

claim that votes had been changed. COD Appx. 303.

To the extent they are actually relevant to any of

Petitioners’ claims, the “expert” reports, declarations and

affidavits

are

fundamentally

flawed.

For

instance,

Petitioners rely on an affidavit from someone whose name

they redacted, but who they identified as a “former electronic

intelligence analyst with 305th Military Intelligence.” Pet.

Appx. Ex. 1, R6, ¶¶ 17, 161. When the identity of the

declarant was inadvertently revealed by Petitioners, it was

discovered that the individual was never in Military

Intelligence, but instead was a person who failed out of the

courses to join intelligence. COD Appx. 304-07. He

reportedly said that counsel for Petitioners added the false

claim to his affidavit. Id.

The

other

“expert”

analyses

lack

the

basic

underpinnings of proper expert testimony. The reports are

rife with misstatements of Michigan law and procedure (e.g.

that Michigan voters can be tracked by party registration,

when the State has not had party registration since 1992;

that every Michigan absentee voter voted by mail, when

many Michigan voters cast absentee ballots in person at the

local clerk’s office; and, that thousands of ballots could be

counted multiple times, when there are multiple steps in

Michigan’s tabulation, canvassing and certification process

where such errors would be detected and corrected). The

experts also rely on obviously incorrect factual assumptions

(e.g. that every voter who supported Donald Trump in 2016

voted for Donald Trump again in 2020; that a larger margin

of victory for Joe Biden, measured by raw vote totals, in

several counties is “statistically anomalous,” when the

counties identified happen to be the counties with the most

voters in the State; and, that there is no reason to believe

that, in 2020, when President Trump discouraged mail-in

voting, Biden voters would be more likely to vote by mail

than Trump voters). These “expert” reports fail to use even

elementary statistical methods, rely upon transparentlyunscientific surveys, include numerical inconsistencies, and

are prepared with the sort of sloppiness that would be

rejected even in low-stakes litigation. The reports are all

clearly intended to support a pre-determined conclusion. Not

one of them comes close to satisfying Daubert. 1

1 Many of the fabrications and flaws are identified in

the City’s Motion for Sanctions. COD Appx. 054-274.

As the District Court concluded in denying injunctive

relief, “this lawsuit seems to be less about achieving the

relief Plaintiffs seek—as much of that relief is beyond the

power of this Court—and more about the impact of their

allegations on People’s faith in the democratic process and

their trust in our government.” Pet. Appx. Ex. 42 R. 62, *3536. “Plaintiffs ask this Court to ignore the orderly statutory

scheme established to challenge elections and to ignore the

will of millions of voters … This, the Court cannot, and will

not, do.” Id.

II.

As the District Court Correctly Concluded, this

Lawsuit is Barred by Eleventh Amendment

Immunity

The named Defendants in this lawsuit are Michigan’s

Governor, Secretary of State and Board of State Canvassers

(the “Board”). The claim against the Board was clearly

barred by Eleventh Amendment Immunity, because the

Board is a State entity. See McLeod v. Kelly, 7 N.W.2d 240

(Mich. 1942); see also Pet. Appx. Ex. 42 R. 62, *8-13.

Congress has not abrogated immunity, and the State has not

waived immunity. See, e.g., Carten v. Kent State Univ., 282

F.3d 391, 398 (6th Cir. 2002).

The claims against the Governor and Secretary of

State are barred because they do not fall within the

exception to immunity first articulated by this Court in Ex

parte

Young,

209

U.S.

123

(1908).

The

immunity

“unquestionably” barred the state law claims. Pet. Appx. Ex.

42 R. 62, *11 (citing, inter alia, Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 106 (1984). And, the immunity

barred the federal claims because, as the District Court

concluded, the lawsuit was an attempt to undo something

which had already occurred—certification and transmission

of Michigan’s election results—not an attempt to end an

ongoing violation of law. See Russell v. Lundergan-Grimes,

784 F.3d 1037, 1047 (6th Cir. 2015).

III.

As the District Court Correctly Concluded, this

Lawsuit is Moot

As the District Court held in its December 7 Opinion

and Order, as of the date this case was filed (November 25,

2020) it was already moot. The operative Complaint asked

the District Court to:

(a) order Defendants to decertify the results of the

election; (b) enjoin Secretary Benson and Governor

Whitmer from transmitting the certified election

results to the Electoral College; (c) order

Defendants “to transmit certified election results

that state that President Donald Trump is the

winner of the election”; (d) impound all voting

machines and software in Michigan for expert

inspection; (e) order that no votes received or

tabulated by machines not certified as required by

federal and state law be counted; and, (f) enter a

declaratory judgment that mail-in and absentee

ballot fraud must be remedied with a manual

recount or statistically valid sampling.

Pet. Appx. Ex. 42 R. 62, *13-14 (quoting First Amended

Complaint, Pet. Appx. Ex. 1, R6). However, the request was

moot because, by the time the Complaint was filed, “all 83

counties in Michigan had finished canvassing their results

for all elections and reported their results … The State Board

had certified the results of the 2020 General Election and

Governor Whitmer had submitted the slate of Presidential

Electors to the Archivists.” Pet. Appx. Ex. 42 R. 62, *14

(citing record and M.C.L. § 168.843). The time to request a

special election had expired, as “had the time for requesting

a recount for the office of President.” Id. at *14-15. (citing

record and M.CL. §§ 168.831, 168.832 and § 168.879).

Michigan

state

courts

have

reached

similar

conclusions. As early as November 6, 2020, the Michigan

Court of Claims determined that these challenges to the

election were moot. In Donald J. Trump Inc. v Benson, supra,

the plaintiffs sought an order in the Michigan Court of

Claims that the “counting and processing of absentee votes

cease immediately.” The court stated that:

the complaint and emergency motion were not

filed until approximately 4:00 p.m. on November 4,

2020—despite being announced to various media

outlets much earlier in the day. By the time this

action was filed, the votes had largely been

counted, and the counting is now complete.

Accordingly, and even assuming the requested

relief were available against the Secretary of

State—and overlooking the problems with the

factual and evidentiary record noted above—the

matter is now moot, as it is impossible to issue the

requested relief. See Gleason v Kincaid, 323 Mich

App 308, 314; 917 NW2d 685 (2018).

COD Appx. 308-13. Donald J. Trump for President, Inc. and

the other plaintiff delayed 24 days in perfecting their appeal,

so the Michigan Court of Appeals looked at the mootness

question anew, holding:

Once the election results have been certified, “[a]

candidate for office who believes he or she is

aggrieved on account of fraud or mistake in the

canvass or returns of the votes by the election

inspectors may petition for a recount of the votes

cast for that office in any precinct or precincts as

provided by in this chapter.” MCL 168.862 ….

Here, plaintiff filed its purportedly emergent

application on November 6, 2020, but did not

perfect the filing until 11:21 p.m. on November 30,

2020, when it filed its brief in support. The Wayne

County Board of Canvassers certified the results of

the November 3rd election on November 17, 2020,

almost a full two weeks before plaintiff perfected

the instant application. The Michigan Board of

State Canvassers certified the presidential

election results on November 23, 2020, a full week

before plaintiff perfected its application. Plaintiff

does not address whether the certification of the

election result by the Board of State Canvassers

had any impact on the viability of its suit below or

on the viability of the instant application.

Perhaps the reason for plaintiff failing to discuss

the impact of the certification is because such

action by the Michigan State Board of Canvassers

clearly rendered plaintiff’s claims for relief moot.

The Michigan State Board of Canvassers’

certification of the presidential election results

and the legislative directive found in MCL

168.862, requires plaintiff to pursue its fraud

allegations by way of a recount of the ballots cast

in Wayne County. Because plaintiff failed to follow

the clear law in Michigan relative to such matters,

their action is moot. MCL 168.862.

COD Appx. __. The Michigan Supreme Court rejected leave

to appeal from the Michigan Court of Claims and Court of

Appeals decisions.

Additional events which have transpired subsequent

to the District Court’s December 7 Opinion have further

mooted the case. The federal “safe harbor” provision

regarding certification of electors by states passed on

December 8. See 3 U.S.C. § 5. On December 14, Michigan’s

presidential electors convened in Lansing. M.C.L. § 168.47;

3 U.S.C. § 7. There, Michigan’s electors voted and confirmed

that all Michigan electoral college votes were for Joe Biden.

COD Appx. 316-21. Joe Biden defeated Donald Trump in the

State of Michigan by 154,188 votes. Id. On that same day,

the Electoral College in all 50 states met and cast their votes.

COD Appx. 322-25. Finally, on January 6, 2021 and into the

morning of January 7, a joint session of Congress met and

certified the results for Michigan and all other states. COD

Appx. 326-28.

IV.

As the District Court Correctly Concluded, this

Lawsuit is Barred by Laches

Laches arises from a “(1) lack of diligence by the party

against whom the defense is asserted … and (2) prejudice to

the party asserting the defense.” Chirco v. Crosswinds

Communities, Inc., 474 F.3d 227, 231 (6th Cir. 2007) (citation

omitted)).

All of Petitioners’ claims arise from allegations

relating to supposed events which occurred before the

election (including years before the election) or on the 3rd and

4th of November. If Petitioners had legitimate claims

regarding Dominion Voting Systems, they could have

brought those claims years ago. If Petitioners had legitimate

claims relating to the processing and tabulation of ballots in

Detroit, they could have brought the claims before that

tabulation was completed. Instead of bringing the claims

when they were timely (albeit not meritorious), Petitioners

chose to wait until after the election had been certified. The

claims are thus barred by laches.

As the District Court Correctly Concluded, this

Lawsuit is Barred Under the Colorado River

Doctrine

The Colorado River doctrine counsels deference to

parallel state court proceedings. Colorado River Water

Conservation District v. United States, 424 U.S. 800 (1976).

Virtually all of the allegations of purported fraud relate to

the processing and tabulation of ballots in Detroit. See, e.g.,

Pet. Appx. Ex. 1, R6, ¶¶ 180-192, 206, 211, 213-228. The

“facts” identified in the Counts—which are the only “facts”

actually offered in support of the relief in the Counts—are

claims that election officials: did not allow Republican

challengers to observe the counting and processing of ballots;

discriminated

against

Republican

challengers;

added

“batches” of ballots; added voters to the Qualified Voter File;

changed dates on ballots; altered votes on ballots; double

counted

ballots;

violated

ballot

security;

accepted

“unsecured” ballots; counted ineligible ballots; and, failed to

check ballot signatures. Besides their falsity, the one thing

the allegations have in common is that they are based on

claims raised in Michigan state courts. In fact, each and

every one of those allegations is based on the allegations and

“evidence” submitted in the Costantino matter, supra. 2

All of the claims were being litigated in, or had been

resolved by, Michigan courts. The Wayne County Circuit

Court has already decided that the claims were frivolous and

not worthy of injunctive relief. The Michigan Court of

Appeals and the Michigan Supreme Court reviewed the

District Court’s decision on an expedited basis and did not

disagree. The claims remained before Michigan courts,

which were the proper courts to see them through to their

The other allegations in the Complaint are

essentially offered to provide “support” for the theory that

there could have been widespread fraud in Michigan that

resulted in President Elect Biden receiving 154,000 more

votes than Donald Trump in the State. Of course, if the

Trump campaign believed those claims, the proper avenue

for relief was a hand recount—no recount was requested.

inevitable dismissal with prejudice.

VI.

As the District Court Correctly Concluded,

Petitioners Do Not Have Standing

Article III of the United States Constitution restricts

the jurisdiction of federal courts to actual “Cases” and

“Controversies.” U.S. Const. art. III, § 2, cl. 1. “To satisfy this

‘case-or-controversy’ requirement, ‘a plaintiff must establish

three elements: (1) an injury in fact that is concrete and

particularized; (2) a connection between the injury and the

conduct at issue—the injury must be fairly traceable to the

defendant's action; and (3) [a] likelihood that the injury

would be redressed by a favorable decision of the Court.’”

Courtney v. Smith, 297 F.3d 455, 459 (6th Cir. 2002), quoting

Blachy v. Butcher, 221 F.3d 896, 909 (6th Cir.2000).

The first requirement—that the plaintiff establish an

“injury in fact”—limits justiciability to those cases involving

a well-defined injury to the plaintiff, which allows the parties

to develop the necessary facts and seek responsive remedies.

As this Court has repeatedly instructed, “[t]he requirement

of ‘actual injury redressable by the court’ . . . tends to assure

that the legal questions presented to the court will be

resolved, not in the rarified atmosphere of a debating society,

but in a concrete factual context conducive to a realistic

appreciation of the consequences of judicial action.” Valley

Forge Christian Coll. v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 472 (1982) . To that

end, this Court “repeatedly has rejected claims of standing

predicated on the right, possessed by every citizen, to require

that the Government be administered according to law.” Id.

at 482–83. Moreover, this Court has “consistently held that

a plaintiff raising only a generally available grievance about

government—claiming only harm to his and every citizen's

interest in proper application of the Constitution and laws,

and seeking relief that no more directly and tangibly benefits

him than it does the public at large—does not state an

Article III case or controversy.” Lujan v. Defs. of Wildlife, 504

U.S. 555, 573–74 (1992).

A. Elections and Electors Clauses

Count I of the Complaint purports to bring a claim

under the Elections and Electors clause of the U.S.

Constitution. But, the underlying “factual allegations” are

the same “allegations” made throughout the Complaint: that

the named Defendants supposedly failed to follow the

Michigan Election Code, relating to election challengers and

the processing and tabulation of ballots in Detroit. See, e.g.,

Pet. Appx. Ex. 1, R6, ¶ 180. Petitioners do not allege that

their ballots were not counted or that they were not allowed

to vote. Instead, they allege their votes were somehow

diluted.

But that claim is “predicated on the right, possessed

by every citizen, to require that the Government be

administered according to law” that is insufficient to confer

standing. See, e.g., Valley Forge, 454 U.S. at 472. Petitioners’

reliance on Carson v. Simon is misplaced. Petition at 29,

citing Carson v. Simon, 978 F.3d 1051, 1057 (8th Cir. 2020).

Carson is an outlier that erroneously conflated candidates

for electors with candidates for office based on a quirk of

Minnesota law. Id. Meanwhile, this Court has been clear

that citizens do not have Article III standing under the

clauses. See, e.g., Lance v. Coffman, 549 U.S. 437, 442 (2007)

(Holding plaintiffs did not have standing because the “only

injury plaintiffs allege is that the law—specifically the

Elections Clause—has not been followed. This injury is

precisely the kind of undifferentiated, generalized grievance

about the conduct of government that we have refused to

countenance in the past.”). And, all other courts ruling on

similar challenges to the November 2020 general election

have held that the expansion of standing in Carson v. Simon

was unwarranted and that plaintiffs (citizens, electors, and

candidate) do not have standing under the clause. See, e.g.,

Bognet v. Secretary Commonwealth of Pennsylvania, 980

F.3d 336 (3rd Cir., Nov. 13, 2020); Hotze v. Hollins, 4:20-CV03709, 2020 WL 6437668 at *2 (S.D. Tex. Nov. 2, 2020); Wood

v. Raffensperger, 1:20-CV-04651, 2020 WL 6817513, at *5

(N.D. Ga. Nov. 20, 2020) (L. Lin Wood as plaintiff); Feehan

v. Wisconsin Elections Comm'n, No. 20-CV-1771, 2020 WL

7250219, at *12 (E.D. Wis. Dec. 9, 2020); Bowyer v. Ducey,

CV-20-02321, 2020 WL 7238261 (D. Ariz. Dec. 9, 2020).

Additionally, these particular Petitioners do not have

standing for the claims, because they are actually purporting

to bring claims that, if they could be brought, could only be

brought by the Michigan Legislature. Petitioners are

effectively seeking to enforce “rights” of that body, not rights

that are particular to themselves. See, e.g., Bognet, 980 F.3d

at 349-50 (concluding that the plaintiffs’ Elections and

Electors Clause claims “belong, if they belong to anyone, only

to the Pennsylvania General Assembly”) (citation omitted)

B. Equal Protection, Due Process

Michigan Election Law Theories

and

The equal protection, due process and Michigan

Election Law theories (Counts II – IV) also rely on the

allegations relating to the processing and tabulation of votes

in Detroit. See Pet. Appx. Ex. 1, R6, ¶¶ 118-192, 206, 211,

213-228. Once again, Petitioners do not—and cannot—allege

an actual, particularized injury in fact. They do not claim

they were denied the right to vote; instead, they claim that

the grant of the franchise to others somehow infringed on

their right to equal protection, due process and compliance

with Michigan law. Setting aside just how misplaced this

theory is, it is clear that these Petitioners do not have

standing to pursue it.

Petitioners are alleging an “injury” identical to the

injury supposedly incurred by every Michigan voter. Under

Petitioners’ theory, the “effect” of an erroneously counted

vote will proportionally impact every Michigan voter to the

same mathematical degree. Because the approximately 5.5

million Michigan voters in the Presidential election suffer

the identical incremental dilution, the alleged injury

constitutes a quintessential generalized injury incapable of

conferring standing. Federal courts have addressed this

“novel” voter dilution claim, with each court finding the

claim fails to constitute an injury in fact. See Paher v.

Cegavske, 457 F. Supp. 3d 919, 926–27 (D. Nev. 2020); Martel

v. Condos, No. 5:20-cv-131, ––– F.Supp.3d ––––, 2020 WL

5755289, at *4 (D. Vt. Sept. 16, 2020); Am. Civil Rights

Union v. Martinez-Rivera, 166 F. Supp. 3d 779, 789 (W.D.

Tex. 2015). Numerous courts have also addressed the issue

in the context of the post-election lawsuits filed in the

“battleground” states, also concluding the plaintiffs lacked

standing. See, e.g., Bognet v. Pennsylvania, 980 F.3d at 35260; Wood v. Raffensperger, 2020 WL 6817513, at *5; Feehan

v. Wisconsin, 2020 WL 7250219, at *8-10 ; Bowyer v. Ducey,

2020 WL 7238261 at *5-6; Georgia Republican Party v. Secy

of State of Georgia, No. 20-14741, 2020 WL 7488181 (11th

Cir. Dec. 21, 2020); Donald J. Trump for President, Inc. v.

Boockvar, No. 4:20-CV-02078, 2020 WL 6821992, at *1 (M.D.

Pa. Nov. 21, 2020), aff'd sub nom. Donald J. Trump for

President, Inc. v. Pennsylvania, No. 20-3371, 2020 WL

7012522 (3d Cir. Nov. 27, 2020);

This is not to say that a claim under the label of “voter

dilution” can never be brought in federal court; but such

claims can only survive with facts starkly different from the

case at bar. First, voter dilution claims may be appropriate

in cases of racial gerrymandering, where the legislature

impermissibly relied on race when drawing legislative

districts. See, e.g., United States v. Hays, 515 U.S. 737, 744–

45 (1995). Second, voter dilution claims may proceed in

apportionment cases, where un-updated legislative districts

disfavor voters in specific districts merely due to the voter’s

geographic location. See, e.g., Reynolds v. Sims, 377 U.S. 533

(1964). Neither theory provides any support for Petitioners’

claims. The injury in the colorable dilution claims is

particularized to a specific group. In contrast to the specific

class of minority voters in a racially gerrymandered district,

or voters living in a growing but un-reapportioned district,

the supposed dilution here is shared in proportion by every

single Michigan voter. In alleging a generalized injury rather

than an actual and particularized injury in fact, Petitioners

lack standing.

CONCLUSION

The Court should DENY Petitioners’ Request for the

Writ of Certiorari.

Respectfully submitted,

DAVID H. FINK*

*Counsel of Record

FINK BRESSACK

David H. Fink (P28235)

Darryl Bressack(P67820)

Nathan J. Fink (P75185)

38500 Woodward Ave., Suite 350

Bloomfield Hills, MI 48304

(248) 971-2500

dfink@finkbressack.com

dbressack@finkbressack.com

nfink@finkbressack.com

CITY OF DETROIT LAW

DEPARTMENT

Lawrence T. Garcia (P54890)

James D. Noseda (P52563)

2 Woodward Ave., 5th Floor

Detroit, MI 48226

(313) 237-5037

garcial@detroitmi.goc

nosej@detroitmi.gov

January 14, 2021

Counsel for IntervenorDefendant/Respondent

APPENDIX

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3544 Filed 12/22/20 Page 1 of 37

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIMOTHY KING, MARIAN ELLEN

SHERIDAN, JOHN EARL HAGGARD,

CHARLES JAMES RITCHARD, JAMES

DAVID HOOPER and DAREN WADE

RUBINGH,

Plaintiffs,

No. 2:20-cv-13134

Hon. Linda V. Parker

GRETCHEN WHITMER, in her official

capacity as Governor of the State of

Michigan, JOCELYN BENSON, in her

official capacity as Michigan Secretary of

State and the Michigan BOARD OF STATE

CANVASSERS,

Defendants.

THE CITY OF DETROIT’S MOTION TO DISMISS

AND

FOR AN AWARD OF SANCTIONS

The City of Detroit (the “City”) respectfully submits this Motion to Dismiss

Plaintiffs’ Complaint with Prejudice and with Sanctions.

This Motion is supported by the accompanying Brief.

Pursuant to Local Rule 7.1(a), on December 22, 2020, Counsel for the City

contacted Counsel for the Plaintiffs and explained the nature of this Motion and its

A001

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3545 Filed 12/22/20 Page 2 of 37

legal bases and requested concurrence in the relief sought but the Plaintiffs did not

concur.

WHEREFORE, for the foregoing reasons and the reasons stated in the

accompanying brief, the City of Detroit respectfully requests that this Court enter an

Order dismissing Plaintiffs’ Complaint with prejudice and requiring Plaintiffs and

their counsel to pay all costs and fees incurred by all Defendants and IntervenorDefendants.

December 22, 2020

Respectfully submitted,

FINK BRESSACK

By: /s/ David H. Fink

David H. Fink (P28235)

Darryl Bressack (P67820)

Nathan J. Fink (P75185)

Attorneys for City of Detroit

38500 Woodward Ave., Ste. 350

Bloomfield Hills, MI 48304

Tel: (248) 971-2500

dfink@finkbressack.com

dbressack@finkbressack.com

nfink@finkbressack.com

CITY OF DETROIT

LAW DEPARTMENT

Lawrence T. Garcia (P54890)

James D. Noseda (P52563)

Attorneys for City of Detroit

2 Woodward Ave., 5th Floor

Detroit, MI 48226

Tel: (313) 237-5037

garcial@detroitmi.goc

nosej@detroitmi.gov

A002

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3546 Filed 12/22/20 Page 3 of 37

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIMOTHY KING, MARIAN ELLEN

SHERIDAN, JOHN EARL HAGGARD,

CHARLES JAMES RITCHARD, JAMES

DAVID HOOPER and DAREN WADE

RUBINGH,

Plaintiffs,

No. 2:20-cv-13134

Hon. Linda V. Parker

GRETCHEN WHITMER, in her official

capacity as Governor of the State of

Michigan, JOCELYN BENSON, in her

official capacity as Michigan Secretary of

State and the Michigan BOARD OF STATE

CANVASSERS,

Defendants.

BRIEF IN SUPPORT OF

THE CITY OF DETROIT’S MOTION TO DISMISS

AND

FOR AN AWARD OF SANCTIONS

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Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3547 Filed 12/22/20 Page 4 of 37

TABLE OF CONTENTS

INDEX OF AUTHORITIES..................................................................................... ii

CONTROLLING OR MOST APPROPRIATE AUTHORITIES .......................... vii

INTRODUCTION .....................................................................................................1

ARGUMENT .............................................................................................................6

I. Applicable Legal Standards ..............................................................................6

I. The Complaint Should be Dismissed Because the Case is Moot..................... 7

II. The Complaint Should be Dismissed Pursuant to the Doctrine of Laches

III. The Complaint Should be Dismissed Under Abstention Principles ..............11

IV. The Complaint Must be Dismissed Because Plaintiffs do not have

Standing ................................................................................................................13

Plaintiffs Do Not Have Standing to Pursue Claims Under the Electors

and Election Clauses ...............................................................................14

Plaintiffs Do Not Have Standing to Pursue Their Equal Protection, Due

Process or Michigan Electoral Law Theories .........................................16

V. The Complaint Should be Dismissed on its Lack of Merit ............................18

VI. Plaintiffs and their Counsel Should be Sanctioned ........................................23

CONCLUSION ........................................................................................................25

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INDEX OF AUTHORITIES

Cases

Am. Civil Rights Union v. Martinez-Rivera,

166 F. Supp. 3d 779 (W.D. Tex. 2015) ..................................................................17

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................6

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................6

Blachy v. Butcher, 221 F.3d 896 (6th Cir.2000) ......................................................13

Bodine v. Elkhart Cnty. Election Bd., 788 F.2d 1270 (7th Cir. 1986).....................19

Bognet v. Secretary Commonwealth of Pennsylvania,

980 F.3d 336 (3rd Cir., Nov. 13, 2020) ...................................................... 15, 16, 17

Bowyer v. Ducey, CV-20-02321, 2020 WL 7238261 (D. Ariz. Dec. 9, 2020) .......16

Breedlove v. Suttles, 302 U.S. 277 (1937),

overruled by Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966) .......22

Carson v. Simon, 978 F.3d 1051 (8th Cir. 2020) .....................................................15

Chirco v. Crosswinds Communities, Inc., 474 F.3d 227 (6th Cir. 2007) ................10

Civil Rights Cases, 109 U.S. 3 (1883) .....................................................................22

Colorado River Water Conservation District v. United States,

424 U.S. 800 (1976) ............................................................................................4, 11

Costantino v Detroit, No. 162245, 2020 WL 6882586 (Mich. Nov. 23, 2020) ........5

Courtney v. Smith, 297 F.3d 455 (6th Cir. 2002).....................................................13

Donald J. Trump for President, Inc v. Secy’ of State,

Mich. Court of Claims Case No. 20-000225-MZ,

Opinion and Order (Nov. 4, 2020) ............................................................................4

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Donald J. Trump for President, Inc. v. Boockvar,

No. 4:20-CV-02078, 2020 WL 6821992 (M.D. Pa. Nov. 21, 2020), aff'd sub nom.

Donald J. Trump for President, Inc. v. Pennsylvania, No. 20-3371, 2020 WL

7012522 (3d Cir. Nov. 27, 2020) ...................................................................... 18, 22

Donald J. Trump for President, Inc. v. Secy of State,

No. 162320, 2020 WL 7315923 (Mich. Dec. 11, 2020) .....................................5, 12

Dred Scott v. Sandford, 60 U.S. 393 (1857) ............................................................22

Feehan v. Wisconsin Elections Comm'n, 20-CV-177,

2020 WL 7250219 (E.D. Wis. Dec. 9, 2020) .........................................................16

Feehan v. Wisconsin Elections Comm'n, No. 20-CV-1771, 2020 WL 7250219 (E.D.

Wis. Dec. 9, 2020) ................................................................................................17

Frank v. Dana Corp., 547 F.3d 564 (6th Cir. 2008)..................................................6

Georgia Republican Party v. Secy of State of Georgia,

No. 20-14741, 2020 WL 7488181 (11th Cir. Dec. 21, 2020).................................17

Gleason v. Kincaid, 323 Mich. App. 308, 314; 917 N.W.2d 685 (2018)..................8

Hotze v. Hollins, 4:20-CV-03709, 2020 WL 6437668 (S.D. Tex. Nov. 2, 2020) ...15

Johnson v. Secy of State,

No. 162286, 2020 WL 7251084 (Mich. Dec. 9, 2020) .......................................5, 13

King v. Whitmer,

No. CV 20-13134, 2020 WL 7134198 (E.D. Mich. Dec. 7, 2020) ......................3, 7

Korematsu v. United States,

323 U.S. 214 (1944); abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018) .....22

Lance v. Coffman, 549 U.S. 437 (2007) ..................................................................15

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ......................................................14

Martel v. Condos, No. 5:20-cv-131,

––– F.Supp.3d ––––, 2020 WL 5755289 (D. Vt. Sept. 16, 2020) ..........................17

iii

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Minn. Voters All. v. Ritchie, 720 F.3d 1029 (8th Cir. 2013)....................................19

Paher v. Cegavske, 457 F. Supp. 3d 919 (D. Nev. 2020) ........................................17

Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Bd. of Ed. of

Topeka, Shawnee Cty., Kan., 347 U.S. 483 (1954) .............................................22

Reynolds v. Sims, 377 U.S. 533 (1964) ............................................................. 18, 19

Sanderson v. HCA-Healthcare Co., 447 F.3d 873 (6th Cir. 2006) ...........................6

Stoddard v. City Elect Comm of the City of Detroit, Wayne County Circuit Court

Case No. 20-014604-CZ, Opinion and Order (Nov. 6, 2020)................................5

Texas v Pennsylvania, No. 155 ORIG., 2020 WL 7296814 (U.S., Dec. 11, 2020) ..5

United States v. Hays, 515 U.S. 737 (1995) ............................................................18

Valley Forge Christian Coll. v. Americans United for Separation of Church and

State, Inc., 454 U.S. 464 (1982) .................................................................... 14, 15

Wood v. Raffensperger,

No. 1:20-CV-04651, 2020 WL 6817513 (N.D. Ga. Nov. 20, 2020) ............... 16, 17

Statutes

28 U.S.C. § 1927 ......................................................................................................22

3 U.S.C. § 5 ................................................................................................................9

3 U.S.C. § 7 ................................................................................................................9

M.C.L. § 168.47 .........................................................................................................9

M.C.L. § 168.730 .....................................................................................................19

M.C.L. § 168.764a ............................................................................................ 19, 20

M.C.L. § 168.765(5) ......................................................................................... 19, 20

M.C.L. § 168.765a ...................................................................................................19

M.C.L. § 168.843 .......................................................................................................7

M.CL. § 168.832 ........................................................................................................7

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Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3551 Filed 12/22/20 Page 8 of 37

M.CL. § 168.879 ........................................................................................................7

Other Authorities

U.S. Const. art. III, § 2 .............................................................................................12

Rules

Fed R. Civ. P. 12(b)(6)...............................................................................................5

Fed. R. Civ. P. 9(b) ....................................................................................................6

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STATEMENT OF THE ISSUES PRESENTED

Should the Complaint be dismissed because Plaintiffs do not have standing?

The City answers: “Yes.”

II.

Should the Complaint be dismissed under abstention principles?

The City answers: “Yes.”

III.

Should the Complaint be dismissed based on laches?

The City answers: “Yes.”

IV.

Should Plaintiffs’ counsel be ordered to pay sanctions pursuant to 28 U.S.C. §

1927?

The City answers “Yes”

A009

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3553 Filed 12/22/20 Page 10 of 37

CONTROLLING OR MOST APPROPRIATE AUTHORITIES

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976)

Costantino v. Detroit et al, Wayne County Circuit Case No. 20-014780-AW

Courtney v. Smith, 297 F.3d 455 (6th Cir. 2002)

Donald J. Trump for President, Inc. v. Pennsylvania, No. 20-3371, 2020 WL

7012522 (3d Cir. Nov. 27, 2020)

King v. Whitmer, No. CV 20-13134, 2020 WL 7134198 (E.D. Mich. Dec. 7, 2020)

Valley Forge Christian Coll. v. Americans United for Separation of Church and

State, Inc., 454 U.S. 464 (1982)

U.S. Const. art. III, § 2

28 U.S.C. § 1927

Fed. R. Civ. P. 9(b)

vii

A010

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3554 Filed 12/22/20 Page 11 of 37

INTRODUCTION

Plaintiffs and their counsel surely know that this case is built on lie upon lie,

each easily disproven by basic objective facts. They know that their so-called experts

rely on conspiracy theories to spew obviously flawed conclusions, based on junk

science. But they choose to deliberately spread their falsehoods by filing them with

this Court and not withdrawing them when given the opportunity (after the various

Defendants sought concurrence). While one might be tempted to laugh at the

absurdity of their claims, the point of these lawsuits is not to prevail. Certainly, no

court in the free world would ever seriously entertain this nonsense. No, the point of

all of these lawsuits was to sow doubt, to delegitimize the Biden presidency, to create

space for people to press the President to declare martial law, and, perhaps, to

fundraise from the millions who believe there must be some truth to these spurious

allegations because they are included in court filings and “affidavits.”

Some numbers put this in perspective:

• Certified popular vote totals for Biden/Harris: 81,281,888 1

• Certified popular vote totals for Trump/Pence: 74,223,2512

• Michigan certified vote totals for Biden/Harris: 2,804,040 3

2020 Presidential Election Results & Electoral Map, USA Today,

https://www.usatoday.com/elections/results/2020-11-03/presidential/?itm_

source=oembed&itm_medium=news&itm_campaign=electionresultshome&itm_content=presidential (last visited December 22, 2020).

Id.

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Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3555 Filed 12/22/20 Page 12 of 37

• Michigan certified vote totals for Trump/Pence: 2,649,852 4

• Electoral College votes committed to Biden/Harris: 3065

• Electoral College votes committed to Trump/Pence: 2326

• Post-elections lawsuits challenging election lost or dismissed: 59 7

• Vote tally net change in Georgia’s three recounts: 891 for Trump 8

• Vote tally net change in Wisconsin recount: 132 for Biden9

• Vote tally net change in Antrim County hand count audit: 11 for Trump 10

• Number of recounts requested by Trump in Michigan: 0

• Percentage of Americans who reportedly believe the election lies: 36%11

Id.

Running tally which changes almost daily, and includes cases where the

relief was denied, but case not yet formally dismissed.

David Wickert, Patricia Murphy and Mark Niesse, Georgia recount confirms

Biden win, again, but Trump still battling, Atlanta Journal Constitution (December

7, 2020), https://www.ajc.com/politics/election/georgia-recount-confirms-bidenwin-again-but-trump-still-battling/OZGAOQCMKVFG7G43L5PSF3BNHM/.

Joe Biden gains votes in Wisconsin county after Trump-ordered recount,

The Guardian, https://www.theguardian.com/us-news/2020/nov/28/joe-bidengains-votes-in-wisconsin-county-after-trump-ordered-recount (last visited

December 22, 2020).

Beth LeBlanc, Antrim County audit shows 12-vote gain for Trump, The

DetroitNews,https://www.detroitnews.com/story/news/local/michigan/2020/12/17/

antrim-county-audit-shows-12-vote-gain-trump/3938988001/

(last

visited

December 22, 2020).

https://www.rasmussenreports.com/public_content/politics/elections/electi

on_2020/most_say_mail_in_voting_worked_but_47_say_fraud_likely. According

to the Rasmussen poll, 47% of likely voters say it is likely that Democrats stole votes

or destroyed pro-Trump ballots in several states to ensure that Joe Biden would win.

49% consider that unlikely. This includes 36% who say voter fraud was very likely.

A012

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3556 Filed 12/22/20 Page 13 of 37

• Number of stabbings at pro-Trump white supremacist rally in D.C.: 412

• Violent incidents by paid election fraud “investigators”: 313 14

• Dollars raised by Sidney Powell based upon election lawsuits: undisclosed

• Dollars raised off election lawsuits by Trump: at least $200 million.15

The City has served Plaintiffs with a proposed Rule 11 Motion and intends to

file that Motion at an appropriate time. But, for now, Plaintiffs’ counsel should be

sanctioned under 28 U.S.C. § 1927 and ordered to pay the City of Detroit the costs,

expenses, and attorneys’ fees incurred because of their conduct.

The reasons for dismissal are straightforward and were explained by this

Court in its December 7, 2020, Opinion and Order Denying Plaintiffs’ “Emergency

Motion for Declaratory, Emergency, and Permanent Injunctive Relief.” King v.

Whitmer, No. CV 20-13134, 2020 WL 7134198 (E.D. Mich. Dec. 7, 2020). There,

this Court made numerous rulings, which not only applied to the denial of injunctive

relief, but which also apply to dismissal.

https://www.washingtonpost.com/local/public-safety/enrique-tarrio-proudboys-black-lives-matter-sign/2020/12/18/c056c05e-415a-11eb-8db8-395dedaaa03

6_story.html.

Eric Miller, Fake ballots, Q Anon, and a Virginia senator: “Alarming”

incident prompts gun charges for men outside Philly vote-counting center,

MSN.com, https://www.msn.com/en-us/news/politics/fake-ballots-q-anon-and-avirgi nia-senator-alarming-incident-prompts-gun-charges-for-men-outside-a-phillyvote-counting-center/ar-BB1aMpKA (last visited December 22, 2020).

US election: Texas ex-officer charged for botched conspiracy, BBC.com,

(December 16, 2020), https://www.bbc.com/news/world-us-canada-55342288.

https://www.theguardian.com/us-news/2020/dec/19/trump-raised-200m-fr

om-false-election-claims-what-happens-to-the-money-now?CMP=oth_b-aplnews_

d-1.

A013

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First, the Court ruled that Plaintiffs’ claims against Defendants (Governor

Whitmer, Secretary of State Benson and the Board of State Canvassers) are barred

by Eleventh Amendment immunity. Id. at *3-5. Second, the case is moot because,

even by December 7, the time had “passed to provide most of the relief Plaintiffs

request in their Amended Complaint” with the remaining relief “beyond the power

of any court.” Id. at *5-6. Third, the case was barred by laches as of November 7

because Plaintiffs “waited too long to knock on the Court’s door.” Id. at *6-7. Fourth,

abstention is appropriate under the Colorado River doctrine16 because the same

allegations and claims are being (and have been) litigated in Michigan state courts.

Id. at *7-9. Fifth, the Plaintiffs did not have standing to pursue their purported claims

under the Equal Protection or Elections/Electors clauses. Id. at *9-11.

This Court’s Opinion and Order denying injunctive relief was entered on

December 7. All subsequent court decisions relating to the election in Michigan have

only lent further support for dismissal. As of December 7, the Michigan Court of

Appeals had rejected the request for injunctive relief in Donald J. Trump for

President, Inc v. Secy’ of State, Mich. Court of Claims Case No. 20-000225-MZ,

Opinion and Order (Nov. 4, 2020) (Ex. 1). The Michigan Supreme Court had already

denied the Application for Leave to Appeal from the denial of injunctive relief in the

(1976).

Colorado River Water Conservation District v. United States, 424 U.S. 800

A014

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Costantino matter. Costantino v Detroit, No. 162245, 2020 WL 6882586 (Mich.

Nov. 23, 2020). The Michigan Third Judicial District had denied injunctive relief in

Stoddard v. City Elect Comm of the City of Detroit, Wayne County Circuit Court

Case No. 20-014604-CZ, Opinion and Order (Nov. 6, 2020) (Ex. 2). Since December

7, the Michigan Supreme Court has rejected the Application for Appeal from the

denial of injunctive relief in Donald J. Trump for President, Inc. v. Secy of State,

No. 162320, 2020 WL 7315923 (Mich. Dec. 11, 2020). The Michigan Supreme

Court also rejected the petition for extraordinary writs in Johnson v. Secy of State,

No. 162286, 2020 WL 7251084 (Mich. Dec. 9, 2020). And, the U.S. Supreme Court

rejected the lawsuit filed by the State of Texas. Texas v Pennsylvania, No. 155

ORIG., 2020 WL 7296814, *1 (U.S., Dec. 11, 2020). 17

Every attempt to overturn the election has been turned away by the judiciary.

That is something we should all be proud of as Americans. There is no reason for a

different result here. Nevertheless, Plaintiffs refuse to dismiss their case, continuing

to use this Court to promote and profit from their false narrative. The case should be

dismissed and Plaintiffs and their counsel should be severely sanctioned.

Since this Motion is being filed under Fed. R. Civ. P. 12(b)(6), the City is

not including a rebuttal of the numerous falsehoods and outlandish claims in the

Complaint. The City, however, relies on the rebuttals contained in its Response to

Plaintiffs’ Emergency Motion for Declaratory, Emergency and Permanent

Injunctive Relief. ECF No. 39. The City intends to file a Motion for Rule 11

sanctions (after the safe harbor expires) laying out many of the intentional

misrepresentations made by Plaintiffs in their filings in this case.

A015

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ARGUMENT

Applicable Legal Standards

Under Fed R. Civ. P. 12(b)(6), a court should dismiss a claim where a plaintiff

fails to plead facts sufficient to state a claim upon which relief can be granted. A

“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do

not suffice.” Iqbal at 678. Allegations that are mere conclusions “are not entitled to

the assumption of truth.” Id. Claims that are “conceivable” or “possible,” but not

plausible, also fall short of the standard. Twombly at 570.

In alleging fraud, a party must state with particularity the “circumstances

constituting fraud.” Fed. R. Civ. P. 9(b). The complaint must “alert the defendants

to the precise misconduct with which they are charged” to protect them “against

spurious charges of immoral and fraudulent behavior.” Sanderson v. HCAHealthcare Co., 447 F.3d 873, 877 (6th Cir. 2006) (internal quotations omitted). A

complaint must “(1) specify the statements that the plaintiff contends were

fraudulent, (2) identify the speaker, (3) state where and when the statements were

made, and (4) explain why the statements were fraudulent.” Frank v. Dana Corp.,

547 F.3d 564, 570 (6th Cir. 2008) (internal quotations omitted).

A016

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The Complaint Should be Dismissed Because the Case is Moot18

As this Court held in its December 7 Opinion and Order, as of November 25,

the date this case was filed, it was already moot. The operative Complaint asked the

Court to:

(a) order Defendants to decertify the results of the election; (b) enjoin

Secretary Benson and Governor Whitmer from transmitting the

certified election results to the Electoral College; (c) order Defendants

“to transmit certified election results that state that President Donald

Trump is the winner of the election”; (d) impound all voting machines

and software in Michigan for expert inspection; (e) order that no votes

received or tabulated by machines not certified as required by federal

and state law be counted; and, (f) enter a declaratory judgment that

mail-in and absentee ballot fraud must be remedied with a manual

recount or statistically valid sampling.

King, 2020 WL, at *5 (quoting ECF No. 6 at Pg ID 955-56, ¶ 233). However, the

request was moot because by the time the Complaint was filed, “all 83 counties in

Michigan had finished canvassing their results for all elections and reported their

results … The State Board had certified the results of the 2020 General Election and

Governor Whitmer had submitted the slate of Presidential Electors to the

Archivists.” Id., at *6 (citing record and M.C.L. § 168.843). The time to request a

special election had expired, as “had the time for requesting a recount for the office

of President.” Id. (citing record and M.CL. §§ 168.831, 168.832 and § 168.879).

Although the City does not repeat them here, the City full concurs with the

State’s arguments regarding Eleventh Amendment immunity.

A017

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Michigan state courts have reached similar conclusions. As early as

November 6, 2020, the Michigan Court of Claims determined that these challenges

to the election were moot. In Donald J. Trump Inc. v Benson, supra, the plaintiffs

sought an order in the Michigan Court of Claims that the “counting and processing

of absentee votes cease immediately.” The court stated that:

the complaint and emergency motion were not filed until approximately

4:00 p.m. on November 4, 2020—despite being announced to various

media outlets much earlier in the day. By the time this action was filed,

the votes had largely been counted, and the counting is now complete.

Accordingly, and even assuming the requested relief were available

against the Secretary of State—and overlooking the problems with the

factual and evidentiary record noted above—the matter is now moot, as

it is impossible to issue the requested relief. See Gleason v Kincaid, 323

Mich App 308, 314; 917 NW2d 685 (2018).

Ex. 1. Donald J. Trump for President, Inc. and the other plaintiff delayed 24 days in

perfecting their appeal, so the Michigan Court of Appeals looked at the mootness

question anew, holding:

Once the election results have been certified, “[a] candidate for office

who believes he or she is aggrieved on account of fraud or mistake in

the canvass or returns of the votes by the election inspectors may

petition for a recount of the votes cast for that office in any precinct or

precincts as provided by in this chapter.” MCL 168.862 ….

Here, plaintiff filed its purportedly emergent application on November

6, 2020, but did not perfect the filing until 11:21 p.m. on November 30,

2020, when it filed its brief in support. The Wayne County Board of

Canvassers certified the results of the November 3rd election on

November 17, 2020, almost a full two weeks before plaintiff perfected

the instant application. The Michigan Board of State Canvassers

certified the presidential election results on November 23, 2020, a full

week before plaintiff perfected its application. Plaintiff does not

A018

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address whether the certification of the election result by the Board of

State Canvassers had any impact on the viability of its suit below or on

the viability of the instant application.

Perhaps the reason for plaintiff failing to discuss the impact of the

certification is because such action by the Michigan State Board of

Canvassers clearly rendered plaintiff’s claims for relief moot. The

Michigan State Board of Canvassers’ certification of the presidential

election results and the legislative directive found in MCL 168.862,

requires plaintiff to pursue its fraud allegations by way of a recount of

the ballots cast in Wayne County. Because plaintiff failed to follow the

clear law in Michigan relative to such matters, their action is moot.

MCL 168.862.

Ex. 3. 19 The Michigan Supreme Court rejected leave to appeal from the Court of

Claims and Court of Appeals decisions.

Instead of immediately perfecting the appeal (by submitted the required

application for leave to appeal), Donald J. Trump for President, Inc. went forum

shopping in the Western District of Michigan, filing a new Complaint there as part

of a group of election cases, where the plaintiffs submitted a notice of related action

for a case assigned to Judge Robert Jonker, even though the supposedly related

action clearly had no relation whatsoever to the post-election lawsuits. Donald J.

Trump for President Inc. v. Secy’ of State, W.D. Mich. Case No. 20-cv-01083 (filed

Nov 11, 2020). The gambit to choose their own judge failed and the cases were

assigned to District Judge Janet T. Neff. Within days of the judicial reassignment,

all of the plaintiffs in the Western District voluntarily dismissed their cases under

Fed. R. Civ. P. 41(a)(1)(A). The filing by Donald J. Trump for President, Inc.,

effectively conceded the case was being dismissed because it was mooted by the fact

that the Wayne County Board of Canvassers had met. Even though the plaintiffs

speciously asserted that the Board had refused to certify the election results (belied

by the obvious fact that the certification occurred in open public session) they cannot

deny that they stated they were dismissing because their request to enjoin

certification by Secretary Benson, the Board of State Canvassers and the Wayne

County Board of Canvassers was moot.

A019

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Additional events which have transpired subsequent to this Court’s December

7 Opinion have further mooted the case. The federal “safe harbor” provision

regarding certification of electors by states passed on December 8. See 3 U.S.C. § 5.

On December 14, Michigan’s presidential electors convened in Lansing. M.C.L. §

168.47; 3 U.S.C. § 7. There, Michigan’s electors voted and confirmed that all

Michigan electoral college votes were for Joe Biden. 20 Joe Biden defeated Donald

Trump in the State of Michigan by 154,188 votes. On that same day, the Electoral

College in all 50 states met and cast their votes. Joe Biden will be our next President

and Kamala Harris will be our next Vice-President.

II.

The Complaint Should be Dismissed Pursuant to the Doctrine of

Laches

Laches arises from a “(1) lack of diligence by the party against whom the

defense is asserted, here the plaintiffs, and (2) prejudice to the party asserting the

defense.” Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 231 (6th Cir.

2007) (citation omitted)).

All of Plaintiffs’ claims arise from allegations relating to supposed events

which occurred well-before the election (including years before the election) or on

the 3rd and 4th of November. If Plaintiffs had legitimate claims regarding Dominion

Voting Systems, they could have brought those claims years ago. If Plaintiffs had

https://www.mlive.com/politics/2020/12/michigan-casts-electoral-collegevotes-for-president-elect-joe-biden.html.

A020

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legitimate claims relating to the processing and tabulation of ballots in Detroit, they

could have brought the claims at the time. Instead of bringing the claims when they

were timely (albeit still frivolous), they issued press releases and fundraised.

Plaintiffs chose to wait until after the election had been certified. The claims cannot

proceed.

III.

The Complaint Should be Dismissed Under Abstention Principles

The Colorado River doctrine counsels deference to parallel state court

proceedings. Colorado River Water Conservation District v. United States, 424 U.S.

800 (1976). While there is much extraneous noise in the Complaint, it is clear from

the actual legal Counts that virtually all of the “factual” assertions actually relevant

to the Counts relate to the processing and tabulation of ballots in Detroit, primarily

at the TCF Center. See, e.g., Compl. ¶¶ 180-192, 206, 211, 213-228. The integrity

of the process in Detroit has already been litigated in state court in active lawsuits

(all of which denied any injunctive or declaratory relief based on the specious

claims). The “facts” identified in the Counts—which are the only “facts” actually

offered in support of the relief in the Counts—are claims that election officials: did

not allow Republican challengers to observe the counting and processing of ballots;

discriminated against Republican challengers; added “batches” of ballots; added

voters to the Qualified Voter File; changed dates on ballots; altered votes on ballots;

double counted ballots; violated ballot security; accepted “unsecured” ballots;

A021

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counted ineligible ballots; and, failed to check ballot signatures. Besides their falsity,

the one thing the allegations have in common is that they are based on claims raised

in Michigan state courts. In fact, each and every one of those allegations is based on

the allegations and “evidence” submitted in the Costantino matter. 21

All of Plaintiffs’ claims (frivolous as they may be) are being (or have been)

litigated in State Court. The fact that the Plaintiffs here may, incredibly enough, be

making even more frivolous allegations than the litigants in Costantino does not

change the fact that the same underlying issue—the integrity of the process

employed in Detroit—is already in suit. The Wayne County Circuit Court has

already decided that the claims were frivolous and not worthy of injunctive relief.

The Michigan Court of Appeals and the Michigan Supreme Court reviewed the trial

court’s decision on an expedited basis and did not disagree. The claims remain

before Judge Kenny, which is the proper court to see them through to their inevitable

dismissal with prejudice. The claims were also brought and rejected in: Donald J.

Trump for President, Inc. v. Secy of State, 2020 WL 7315923 ; Stoddard v. City Elect

The other allegations in the Complaint are essentially offered to provide

“support” for the central theory that there was somehow widespread fraud in Detroit

that resulted in President Elect Biden receiving 154,000 more votes than Donald

Trump in the State.

A022

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Comm of the City of Detroit, 20-014604; and, Johnson v. Secy of State, No. 2020

WL 7251084.22

IV.

The Complaint Must be Dismissed Because Plaintiffs do not have

Standing

Article III of the United States Constitution restricts the jurisdiction of federal

courts to actual “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. “To

satisfy this ‘case-or-controversy’ requirement, ‘a plaintiff must establish three

elements: (1) an injury in fact that is concrete and particularized; (2) a connection

between the injury and the conduct at issue—the injury must be fairly traceable to

the defendant's action; and (3) [a] likelihood that the injury would be redressed by a

favorable decision of the Court.’” Courtney v. Smith, 297 F.3d 455, 459 (6th Cir.

2002), quoting Blachy v. Butcher, 221 F.3d 896, 909 (6th Cir.2000).

The first requirement—that plaintiffs establish an “injury in fact”—limits

justiciability to those cases involving a well-defined injury to the plaintiff, which

allows the parties to develop the necessary facts and seek responsive remedies. As

the Supreme Court has repeatedly instructed, “[t]he requirement of ‘actual injury

Various pre-election lawsuits filed in Michigan made somewhat related

claims against the Secretary of State: Cooper-Keel v. Benson, Mich. Court of Claims

Case No. 20-000091-MM (filed May 20, 2020); Black v. Benson, Mich. Court of

Claims Case No. 20-000096-MZ (filed May 26, 2020); Davis v Benson, Mich. Court

of Claims Case No. 20-000099-MM (filed May 28, 2020); Election Integrity Fund

v. Benson, Mich. Court of Claims Case No. 20-000169-MM; Ryan v. Benson, Mich.

Court of Claims Case No. 20-000198-MZ (filed Oct. 5, 2020).

A023

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redressable by the court’ . . . tends to assure that the legal questions presented to the

court will be resolved, not in the rarified atmosphere of a debating society, but in a

concrete factual context conducive to a realistic appreciation of the consequences of

judicial action.” Valley Forge Christian Coll. v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 472 (1982) . To this end, the Supreme Court

“repeatedly has rejected claims of standing predicated on the right, possessed by

every citizen, to require that the Government be administered according to law.” Id.

at 482–83. Moreover, the Court has “consistently held that a plaintiff raising only a

generally available grievance about government—claiming only harm to his and

every citizen's interest in proper application of the Constitution and laws, and

seeking relief that no more directly and tangibly benefits him than it does the public

at large—does not state an Article III case or controversy.” Lujan v. Defs. of Wildlife,

504 U.S. 555, 573–74 (1992).

A. Plaintiffs Do Not Have Standing to Pursue Claims Under the

Electors and Election Clauses

Count I of the Complaint purports to bring a claim under the Elections and

Electors clause of the U.S. Constitution. But, the underlying “factual allegations”

are the same “allegations” made throughout the Complaint: that Defendants

supposedly failed to follow the Michigan Election Code, relating to election

challengers and the processing and tabulation of ballots in Detroit. See, e.g., Compl.

¶ 180. Plaintiffs do not allege that their ballots were not counted or that they were

A024

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not allowed to vote. Plaintiffs’ claim is precisely the type of claim that is “predicated

on the right, possessed by every citizen, to require that the Government be

administered according to law” that is insufficient to confer standing. See, e.g.,

Valley Forge, 454 U.S. at 472.

Plaintiffs reliance on Carson v. Simon is misplaced. Brief at 8, citing Carson

v. Simon, 978 F.3d 1051, 1057 (8th Cir. 2020). Carson is an outlier that erroneously

conflated candidates for electors with candidates for office based on a quirk of

Minnesota law. Id. Meanwhile, the Supreme Court has been clear that citizens do

not have Article III standing under the clauses. See, e.g., Lance v. Coffman, 549 U.S.

437, 442 (2007) (Holding plaintiffs did not have standing because the “only injury

plaintiffs allege is that the law—specifically the Elections Clause—has not been

followed. This injury is precisely the kind of undifferentiated, generalized grievance

about the conduct of government that we have refused to countenance in the past.”).

And, all other courts ruling on similar challenges to the November 2020 general

election have held that the expansion of standing in Carson v. Simon was

unwarranted and that plaintiffs (citizens, electors, and candidate) do not have

standing under the clause. See, e.g., Bognet v. Secretary Commonwealth of

Pennsylvania, 980 F.3d 336 (3rd Cir., Nov. 13, 2020); Hotze v. Hollins, 4:20-CV03709, 2020 WL 6437668 at *2 (S.D. Tex. Nov. 2, 2020); Wood v. Raffensperger,

1:20-CV-04651, 2020 WL 6817513, at *5 (N.D. Ga. Nov. 20, 2020) (L. Lin Wood

A025

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as plaintiff); Feehan v. Wisconsin Elections Comm'n, No. 20-CV-1771, 2020 WL

7250219, at *12 (E.D. Wis. Dec. 9, 2020) (one of the three Sidney Powell, L. Lin

Wood “Kraken” cases); Bowyer v. Ducey, CV-20-02321, 2020 WL 7238261 (D.

Ariz. Dec. 9, 2020) (one of the three Sidney Powell, L. Lin Wood “Kraken” cases).

Additionally, these particular Plaintiffs do not have standing for the claims,

because they are actually purporting to bring claims that, if they could be brought,

could only be brought by the Michigan Legislature. Plaintiffs are effectively seeking

to enforce “rights” of that body, not rights that are particular to themselves. See, e.g.,

Bognet, 980 F.3d at 349-50 (concluding that the plaintiffs’ Elections and Electors

Clause claims “belong, if they belong to anyone, only to the Pennsylvania General

Assembly”) (citation omitted).

B. Plaintiffs Do Not Have Standing to Pursue Their Equal Protection,

Due Process or Michigan Electoral Law Theories

The equal protection, due process and Michigan Election Law theories (Counts

II – IV) also rely on the allegations relating to the processing and tabulation of votes

in Detroit. See Compl. ¶¶ 118-192, 206, 211, 213-228. Once again, Plaintiffs do

not—and cannot—allege an actual, particularized injury in fact. They do not claim

they were denied the right to vote; instead, they claim that the grant of the franchise

to others, somehow infringed on their right to equal protection, due process and

compliance with Michigan law. The apparent remedy for allowing the “wrong type

A026

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of people” to vote, is to take away the vote from everyone. Setting aside just how

absurd this theory is, it is clear that these Plaintiffs do not have standing to pursue it.

Plaintiffs are alleging an “injury” identical to the injury supposedly incurred by

every Michigan voter. Under Plaintiffs’ theory, the “effect” of an erroneously

counted vote will proportionally impact every Michigan voter to the same

mathematical degree. Because the approximately 5.5 million Michigan voters in the

Presidential election suffer the identical incremental dilution, the alleged injury

constitutes a quintessential generalized injury incapable of conferring standing.

Federal courts have addressed this “novel” voter dilution claim, with each court

finding the claim fails to constitute an injury in fact. See Paher v. Cegavske, 457 F.

Supp. 3d 919, 926–27 (D. Nev. 2020); Martel v. Condos, No. 5:20-cv-131, –––

F.Supp.3d ––––, 2020 WL 5755289, at *4 (D. Vt. Sept. 16, 2020); Am. Civil Rights

Union v. Martinez-Rivera, 166 F. Supp. 3d 779, 789 (W.D. Tex. 2015). Numerous

courts have also addressed the issue in the context of the post-election lawsuits filed

in the “battleground” states, also concluding the plaintiffs lacked standing. See, e.g.,

Bognet v. Pennsylvania, 980 F.3d at 352-60; Wood v. Raffensperger, 2020 WL

6817513, at *5; Feehan v. Wisconsin, 2020 WL 7250219, at *8-10 ; Bowyer v.

Ducey, 2020 WL 7238261 at *5-6; Georgia Republican Party v. Secy of State of

Georgia, No. 20-14741, 2020 WL 7488181 (11th Cir. Dec. 21, 2020); Donald J.

Trump for President, Inc. v. Boockvar, No. 4:20-CV-02078, 2020 WL 6821992, at

A027

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*1 (M.D. Pa. Nov. 21, 2020), aff'd sub nom. Donald J. Trump for President, Inc. v.

Pennsylvania, No. 20-3371, 2020 WL 7012522 (3d Cir. Nov. 27, 2020);

This is not to say that a claim under the label of “voter dilution” can never be

brought in federal court; but such claims can only survive with facts starkly different

from the case at bar. First, voter dilution claims may be appropriate in cases of racial

gerrymandering, where the legislature impermissibly relied on race when drawing

legislative districts. See, e.g., United States v. Hays, 515 U.S. 737, 744–45 (1995).

Second, voter dilution claims may proceed in apportionment cases, where unupdated legislative districts disfavor voters in specific districts merely due to the

voter’s geographic location. See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964).

Neither theory provides any support for Plaintiffs’ claims. The injury in the colorable

dilution claims is particularized to a specific group. In contrast to the specific class

of minority voters in a racially gerrymandered district, or voters living in a growing

but un-reapportioned district, the supposed dilution here is shared in proportion by

every single Michigan voter. In alleging a generalized injury rather than an actual

and particularized injury in fact, Plaintiffs lack standing.

The Complaint Should be Dismissed on its Lack of Merit

The Complaint should also be dismissed because Plaintiffs’ legal theories are

untenable. Plaintiffs’ equal protection, due process, and state law claims are

predicated on their “voter dilution” theories. Equal protection voter dilution claims

A028

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exist only under a narrow set of circumstances. See, e.g., Reynolds, 377 U.S. at 568

(“Simply stated, an individual’s right to vote for state legislators is unconstitutionally

impaired when its weight is in a substantial fashion diluted when compared with

votes of citizens living in other parts of the State.”). In those unique cases, the

plaintiffs can allege disparate treatment from similarly situated voters. See, e.g., id.

at 537 (The plaintiffs alleging devalued voting power when compared to similarly

situated voters in other parts of the state.).

In contrast, the gravamen of Plaintiffs’ claim—that Michigan voters will have

the value of their votes diluted—falls far wide of the mark. Plaintiffs allege breaches

of the Michigan Election Code due to a lack of access provided to poll watchers, as

well as a number of often hyper-localized violations of the Michigan Election Code.

However, even if Plaintiffs successfully showed an impermissible lack of

meaningful access for poll challengers, such a showing is plainly insufficient to

prove fraudulent votes were actually counted. And with regard to the allegations of

localized Election Code violations, the fundamental principle at issue is that “[t]he

Constitution is not an election fraud statute.” Minn. Voters All. v. Ritchie, 720 F.3d

1029, 1031 (8th Cir. 2013), quoting Bodine v. Elkhart Cnty. Election Bd., 788 F.2d

1270, 1271 (7th Cir. 1986). No case supports the notion that the Equal Protection

Clause of the U.S. Constitution can be turned into the weapon of oppression sought

by Plaintiffs.

A029

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The Michigan law claims fair no better. Plaintiffs allege violations of M.C.L.

§§ 168.730, 168.733, 168.764a, 168.765a and 168.765(5) (all supposedly at the TCF

Center) but for each claim either don’t understand the statute or rely on facts that

have been rejected by Michigan courts, especially the Circuit Court, Court of

Appeals and Supreme Court in Costantino.

M.C.L. §§ 168.730 and 168.733 are statutory provisions allowing partisan

challengers to observe the vote counting process. As the Costantino court concluded,

Republican challengers were always in the TCF Center, and, as long as they were

not yelling and causing disruptions (including by chanting “stop the vote”), they

were allowed to observe the process in full compliance with the law. Even if the

allegations were true, they could not possibly entitle Plaintiffs to any post-election

remedy. The “remedy” is in the statute itself, and does not include

disenfranchisement of all voters.

M.C.L. § 168.765(5) relates to a deadline to post certain information relating

to absentee ballots. Tellingly, as has been the case each time plaintiffs filed

Complaints derived from the same allegations, the allegation is made “upon

information and belief.” FAC ¶ 221. No plaintiff has ever presented an iota of

evidence, let alone a claim not made “upon information and belief” about this issue.

And, again, the “remedy” of disregarding the Constitution and throwing out

A030

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thousands or millions of votes is not something that could possibly be available for

an alleged violation of the deadline.

M.C.L. § 168.764a provides that ballots received after 8:00 p.m. on election

day cannot be counted. This allegation is also based “upon information and belief.”

FAC ¶ 224. Obviously, an “information and belief” allegation is woefully deficient

to obtain any relief, let alone the extraordinary relief Plaintiffs’ seek. And, even if

Plaintiffs proved that some ballots received after the deadline were counted (they

cannot), the “remedy” is not wholesale disenfranchisement.

MCL § 168.765a provides for ballots to be duplicated under the supervision

of inspectors (i.e., paid workers) from both major parties. Plaintiffs’ claim is based

on their conflation of the role of ballot inspectors and ballot challengers. Plaintiffs’

false claim about Republicans being excluded from the TCF Center, relates to

challengers, not inspectors. There was a short period of time when excess overflow

challengers of all parties were not able to enter the TCF Center until a challenger of

their party left, but there was never a time when inspectors were disallowed. And,

the “remedies” sought are not available even if Plaintiffs were correct.

Plaintiffs bring false claims, ostensibly available to every Michigan voter in

the event of any voting error, with the outrageous “remedy” being the rejection of

hundreds of thousands, if not millions, of votes. As a district court recently held in

one of the Trump election lawsuits brought in Pennsylvania, “[t]his Court has been

A031

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unable to find any case in which a plaintiff has sought such a drastic remedy in the

contest of an election, in terms of the sheer volume of votes asked to be invalidated.”

Donald J. Trump for President, Inc. v. Boockvar, 2020 WL 6821992, at *1. Plaintiffs

are asking for “relief” that would easily rank among the most momentous and most

reviled legal decisions in U.S. history, joining the ranks of cases we know by

shorthand, Dred Scott, the Civil Rights Cases, Plessy v. Ferguson, Breedlove, and

Korematsu. 23 Even though Plaintiffs and their lawyers strongly desire to be on the

wrong side of a reviled court decision, nothing they allege, or could allege, could

possibly entitle them to that actual relief. They must be content with knowing that

their filing of this lawsuit already puts them on the wrong side of history, even

though the lawsuit cannot accomplish anything more than line the attorneys’ pockets

with cash.

Dred Scott v. Sandford, 60 U.S. 393 (1857) (denying citizenship and basic

rights for all black people, slave or free), superseded (1868); Civil Rights Cases, 109

U.S. 3 (1883) (precluding Congress from outlawing racial discrimination); Plessy v.

Ferguson, 163 U.S. 537 (1896) (affirming constitutionality of “separate but equal”

segregation), overruled by Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347

U.S. 483 (1954); Breedlove v. Suttles, 302 U.S. 277 (1937) (upholding poll taxes),

overruled by Harper v. Virginia State Bd. of Elections, 383 U.S. 663 (1966);

Korematsu v. United States, 323 U.S. 214 (1944) (affirming internment of American

citizens of Japanese descent), abrogated by Trump v. Hawaii, 138 S. Ct. 2392

(2018).

A032

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3576 Filed 12/22/20 Page 33 of 37

VI.

Plaintiffs and their Counsel Should be Sanctioned

28 U.S.C. § 1927 provides that any attorney “who so multiplies the

proceedings in any case unreasonably and vexatiously may be required by the court

to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably

incurred because of such conduct.” Sanctions under § 1927 “are warranted when an

attorney objectively “falls short of the obligations owed by a member of the bar to

the court and which, as a result, causes additional expense to the opposing party.”

Ruben v. Warren City Sch., 825 F.2d 977, 984 (6th Cir. 1987). They deter dilatory

litigation practices and punish tactics that exceed zealous advocacy. See Jones v.

Continental Corp., 789 F.2d 1225, 1230-31 (6th Cir. 1986); see also Thurmond v.

Wayne Cty. Sheriff Dep't, 564 F. App'x 823, 834 (6th Cir. 2014) (Affirming § 1927

where plaintiff “ignored opposing counsel’s reasonable requests to voluntarily

withdraw the complaint, necessitating the filing of a motion to dismiss and motion

for sanctions.”). Thus, the sanctioned attorney is required to personally satisfy the

excess costs attributable to their conduct. See In re Ruben, 825 F.2d at 983.

If sanctions are not deserved in this case, it is hard to imagine a case where

they would be. Sidney Powell has stated that the courts have rejected her lawsuits

“because the corruption goes deep and wide.”24 But, in truth, she filed lawsuits

devoid of any factual or legal merit, hoping not to prevail but to damage democracy.

https://twitter.com/AKA_RealDirty/status/1338401580299681793.

A033

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3577 Filed 12/22/20 Page 34 of 37

This Court correctly concluded that Plaintiffs have “nothing but speculation and

conjecture” and that “this lawsuit seems to be less about achieving the relief

Plaintiffs seek—as much of that relief is beyond the power of this Court—and more

about the impact of their allegations on People's faith in the democratic process and

their trust in our government.” King, 2020 WL 7134198, at *13.

This lawsuit is part a dangerous attack on the integrity of the democratic

process for the election of the President of the United States. Sidney Powell’s cocounsel L. Lin Wood has said on Twitter that “Georgia, Michigan, Arizona, Nevada,

Wisconsin, Minnesota & Pennsylvania are states in which martial law should be

imposed & machines/ballots seized.” Wood has said “[p]atriots are praying tonight

that @realDonaldTrump will impose martial law in disputed states, seize voting

machines for forensic examination, & appoint @SidneyPowell as special counsel to

investigate election fraud.” And, he has said “[i]t is time for Chief Justice John

Roberts to resign, admit his corruption & ask for forgiveness.”25

Greg Rohl, another attorney for the Plaintiffs in this case, and the only one

admitted to the Eastern District of Michigan, has previously been sanctioned for

filing a case which was deemed “frivolous from its inception” and ordered to pay

over $200,000 in costs and attorneys fees. See DeGeorge v. Warheit, 276 Mich. App.

587, 589, 741 N.W.2d 384 (2007). He was then held in criminal contempt and

sentenced to jail—affirmed by the Court of Appeals—for attempting to transfer

assets to evade payment. Id. The Court of Appeals noted that a bankruptcy court had

concluded that Rohl “intended to hinder, delay and defraud … and create a sham

transaction to prevent [a creditor] from reaching Rohl’s interest in his law firm

through the appointment of a receiver.” Id. at 590.

A034

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3578 Filed 12/22/20 Page 35 of 37

In a case involving the election of the President of the United States, the

parties and their attorneys should be held to the highest standards of factual and legal

due diligence; instead, they have raised false allegations and pursued unsupportable

legal theories. Apparently, this frivolous lawsuit continues because it serves other,

more nefarious, purposes. While the pending complaint cannot possibly result in

meaningful relief, it does serve the purpose of conveying to the world the impression

that something fraudulent occurred in Detroit’s vote count. This is not a legitimate

lawsuit; it is a public relations and fundraising weapon being used to advance the

false narrative that our democratic system is broken. Plaintiffs are trying to send the

message that our democracy cannot be trusted. It is time for this Court to send a

message back: lies and frivolous claims will not be tolerated. This abuse of our legal

system deserves the strongest possible sanctions. For now, those sanctions should

be under § 1927, later they should be under Rule 11.

CONCLUSION

WHEREFORE, for the foregoing reasons, the City of Detroit respectfully

requests that this Court enter an Order dismissing Plaintiffs’ Complaint with

prejudice and requiring Plaintiffs and their counsel to pay all costs and fees incurred

by all Defendants and Intervenor-Defendants.

December 22, 2020

Respectfully submitted,

FINK BRESSACK

A035

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3579 Filed 12/22/20 Page 36 of 37

By: /s/ David H. Fink

David H. Fink (P28235)

Darryl Bressack (P67820)

Nathan J. Fink (P75185)

Attorneys for City of Detroit

38500 Woodward Ave., Ste. 350

Bloomfield Hills, MI 48304

Tel: (248) 971-2500

dfink@finkbressack.com

dbressack@finkbressack.com

nfin@finkbressack.com

CITY OF DETROIT

LAW DEPARTMENT

Lawrence T. Garcia (P54890)

James D. Noseda (P52563)

Attorneys for City of Detroit

2 Woodward Ave., 5th Floor

Detroit, MI 48226

Tel: (313) 237-5037

garcial@detroitmi.goc

nosej@detroitmi.gov

A036

Case 2:20-cv-13134-LVP-RSW ECF No. 73, PageID.3580 Filed 12/22/20 Page 37 of 37

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on December 22, 2020, I electronically filed the

foregoing document with the Clerk of the Court using the ECF system, which will

send notification of such filing to all attorneys of record registered for electronic

filing.

FINK BRESSACK

By:

A037

/s/ John L. Mack

John L. Mack (P80710)

38500 Woodward Ave., Ste. 350

Bloomfield Hills, MI 48304

Tel.: (248) 971-2500

jmack@finkbressack.com

Case 2:20-cv-13134-LVP-RSW ECF No. 73-1, PageID.3581 Filed 12/22/20 Page 1 of 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIMOTHY KING, MARIAN ELLEN

SHERIDAN, JOHN EARL HAGGARD,

CHARLES JAMES RITCHARD, JAMES

DAVID HOOPER and DAREN WADE

RUBINGH,

Plaintiffs,

No. 2:20-cv-13134

Hon. Linda V. Parker

GRETCHEN WHITMER, in her official

capacity as Governor of the State of

Michigan, JOCELYN BENSON, in her

official capacity as Michigan Secretary of

State and the Michigan BOARD OF STATE

CANVASSERS,

Defendants.

THE CITY OF DETROIT’S MOTION TO DISMISS

AND

FOR AN AWARD OF SANCTIONS

Index of Exhibits

Exhibit 1 – November 4, 2020 Opinion and Order in Donald J. Trump for President,

Inc v. Secy’ of State

Exhibit 2 – November 6, 2020 Opinion and Order in Stoddard v. City Elect Comm

of the City of Detroit

Exhibit 3 – December 4, 2020 Order in Donald J. Trump for President, Inc v. Secy’

of State

A038

Case 2:20-cv-13134-LVP-RSW ECF No. 73-2, PageID.3582 Filed 12/22/20 Page 1 of 7

EXHIBIT 1

A039

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STATE OF MICHIGAN

COURT OF CLAIMS

DONALD J. TRUMP FOR PRESIDENT, INC.

and ERIC OSTEGREN,

OPINION AND ORDER

Plaintiffs,

Case No. 20-000225-MZ

JOCELYN BENSON, in her official capacity as

Secretary of State,

Hon. Cynthia Diane Stephens

Defendants.

___________________________/

Pending before the Court are two motions. The first is plaintiffs’ November 4, 2020

emergency motion for declaratory relief under MCR 2.605(D). For the reasons stated on the record

and incorporated herein, the motion is DENIED. Also pending before the Court is the motion to

intervene as a plaintiff filed by the Democratic National Committee. Because the relief requested

by plaintiffs in this case will not issue, the Court DENIES as moot the motion to intervene.

According to the allegations in plaintiffs’ complaint, plaintiff Eric Ostegren is a

credentialed election challenger under MCL 168.730. Paragraph 2 of the complaint alleges that

plaintiff Ostegren was “excluded from the counting board during the absent voter ballot review

process.” The complaint does not specify when, where, or by whom plaintiff was excluded. Nor

does the complaint provide any details about why the alleged exclusion occurred.

-1-

A040

Case 2:20-cv-13134-LVP-RSW ECF No. 73-2, PageID.3584 Filed 12/22/20 Page 3 of 7

The complaint contains allegations concerning absent voter ballot drop-boxes. Plaintiffs

allege that state law requires that ballot containers must be monitored by video surveillance.

Plaintiff contends that election challengers must be given an opportunity to observe video of ballot

drop-boxes with referencing the provision(s) of the statute that purportedly grant such access, .

See MCL 168.761d(4)(c).

Plaintiffs’ emergency motion asks the Court to order all counting and processing of

absentee ballots to cease until an “election inspector” from each political party is allowed to be

present at every absent voter counting board, and asks that this court require the Secretary of State

to order the immediate segregation of all ballots that are not being inspected and monitored as

required by law. Plaintiffs argue that the Secretary of State’s failure to act has undermined the

rights of all Michigan voters. While the advocate at oral argument posited the prayer for relief as

one to order “meaningful access” to the ballot tabulation process, plaintiffs have asked the Court

to enter a preliminary injunction to enjoin the counting of ballots. A party requesting this

“extraordinary and drastic use of judicial power” must convince the Court of the necessity of the

relief based on the following factors:

(1) the likelihood that the party seeking the injunction will prevail on the merits,

(2) the danger that the party seeking the injunction will suffer irreparable harm if

the injunction is not issued, (3) the risk that the party seeking the injunction would

be harmed more by the absence of an injunction than the opposing party would be

by the granting of the relief, and (4) the harm to the public interest if the injunction

is issued. [Davis v Detroit Fin Review Team, 296 Mich App 568, 613; 821 NW2d

896 (2012).]

As stated on the record at the November 5, 2020 hearing, plaintiffs are not entitled to the

extraordinary form of emergency relief they have requested.

SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS

-2-

A041

Case 2:20-cv-13134-LVP-RSW ECF No. 73-2, PageID.3585 Filed 12/22/20 Page 4 of 7

A. OSTEGREN CLAIM

Plaintiff Ostegren avers that he was removed from an absent voter counting board. It is

true that the Secretary of State has general supervisory control over the conduct of elections. See

MCL 168.21; MCL 168.31. However, the day-to-day operation of an absent voter counting board

is controlled by the pertinent city or township clerk. See MCL 168.764d. The complaint does not

allege that the Secretary of State was a party to or had knowledge of, the alleged exclusion of

plaintiff Ostegren from the unnamed absent voter counting board. Moreover, the Court notes that

recent guidance from the Secretary of State, as was detailed in matter before this Court in Carra

et al v Benson et al, Docket No. 20-000211-MZ, expressly advised local election officials to admit

credentialed election challengers, provided that the challengers adhered to face-covering and

social-distancing requirements. Thus, allegations regarding the purported conduct of an unknown

local election official do not lend themselves to the issuance of a remedy against the Secretary of

State.

B. CONNARN AFFIDAVIT

Plaintiffs have submitted what they refer to as “supplemental evidence” in support of their

request for relief. The evidence consists of: (1) an affidavit from Jessica Connarn, a designated

poll watcher; and (2) a photograph of a handwritten yellow sticky note. In her affidavit, Connarn

avers that, when she was working as a poll watcher, she was contacted by an unnamed poll worker

who was allegedly “being told by other hired poll workers at her table to change the date the ballot

was received when entering ballots into the computer.” She avers that this unnamed poll worker

later handed her a sticky note that says “entered receive date as 11/2/20 on 11/4/20.” Plaintiffs

contend that this documentary evidence confirms that some unnamed persons engaged in

-3-

A042

Case 2:20-cv-13134-LVP-RSW ECF No. 73-2, PageID.3586 Filed 12/22/20 Page 5 of 7

fraudulent activity in order to count invalid absent voter ballots that were received after election

day.

This “supplemental evidence” is inadmissible as hearsay. The assertion that Connarn was

informed by an unknown individual what “other hired poll workers at her table” had been told is

inadmissible hearsay within hearsay, and plaintiffs have provided no hearsay exception for either

level of hearsay that would warrant consideration of the evidence. See MRE 801(c). The note—

which is vague and equivocal—is likewise hearsay. And again, plaintiffs have not presented an

argument as to why the Court could consider the same, given the general prohibitions against

hearsay evidence. See Ykimoff v Foote Mem Hosp, 285 Mich App 80, 105; 776 NW2d 114 (2009).

Moreover, even overlooking the evidentiary issues, the Court notes that there are still no

allegations implicating the Secretary of State’s general supervisory control over the conduct of

elections. Rather, any alleged action would have been taken by some unknown individual at a

polling location.

C. BALLOT BOX VIDEOS

It should be noted at the outset that the statute providing for video surveillance of drop boxes

only applies to those boxes that were installed after October 1, 2020. See MCL 168.761d(2).

There is no evidence in the record whether there are any boxes subject to this requirement, how

many there are, or where they are. The plaintiffs have not cited any statutory authority that requires

any video to be subject to review by election challengers. They have not presented this Court with

any statute making the Secretary of State responsible for maintaining a database of such boxes.

The clear language of the statute directs that “[t]he city or township clerk must use video

monitoring of that drop box to ensure effective monitoring of that drop box.” MCL 168.761d(4)(c)

Additionally, plaintiffs have not directed the Court’s attention to any authority directing the

-4-

A043

Case 2:20-cv-13134-LVP-RSW ECF No. 73-2, PageID.3587 Filed 12/22/20 Page 6 of 7

Secretary of State to segregate the ballots that come from such drop-boxes, thereby undermining

plaintiffs’ request to have such ballots segregated from other ballots, and rendering it impossible

for the Court to grant the requested relief against this defendant. Not only can the relief requested

not issue against the Secretary of State, who is the only named defendant in this action, but the

factual record does not support the relief requested. As a result, plaintiffs are unable to show a

likelihood of success on the merits.

II.

MOOTNESS

Moreover, even if the requested relief could issue against the Secretary of State, the Court

notes that the complaint and emergency motion were not filed until approximately 4:00 p.m. on

November 4, 2020—despite being announced to various media outlets much earlier in the day. By

the time this action was filed, the votes had largely been counted, and the counting is now

complete.

Accordingly, and even assuming the requested relief were available against the

Secretary of State—and overlooking the problems with the factual and evidentiary record noted

above—the matter is now moot, as it is impossible to issue the requested relief. See Gleason v

Kincaid, 323 Mich App 308, 314; 917 NW2d 685 (2018)

IT IS HEREBY ORDERED that plaintiff’s November 4, 2020 emergency motion for

declaratory judgment is DENIED.

IT IS HEREBY FURTHER ORDERED that proposed intervenor’s motion to intervene is

DENIED as MOOT.

This is not a final order and it does not resolve the last pending claim or close the case.

-5-

A044

Case 2:20-cv-13134-LVP-RSW ECF No. 73-2, PageID.3588 Filed 12/22/20 Page 7 of 7

November 6, 2020

____________________________________

Cynthia Diane Stephens

Judge, Court of Claims

-6-

A045

Case 2:20-cv-13134-LVP-RSW ECF No. 73-3, PageID.3589 Filed 12/22/20 Page 1 of 5

EXHIBIT 2

A046

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STATE OF MICHIGAN

IN THE THIRD JUDICIAL CIRCUIT COURT FOR THE COUNTY OF WAYNE

Sarah Stoddard and

Election Integrity Fund,

Hon. Timothy M. Kenny

Case No. 20-01 4604-CZ

City Election Commission of

The City of Detroit and

Janice Winfrey, in her official

Capacity as Detroit City Clerk and

Chairperson of the City Election

C£

Commission, and

Wayne County Board of

Canvassers,

OPINION & ORDER

At a session of this Court

Held on: November 6, 2020

In the Coleman A. Young Municipal Center

County of Wayne, Detroit, Ml

PRESENT: Honorable Timothy M. Kenny

Chief Judge

Third Judicial Circuit Court of Michigan

Plaintiffs Sarah Stoddard and the Election Integrity Fund petition this Court for

preliminary injunctive relief seeking:

Defendants be required to retain all original and duplicate ballots and poll books.

The Wayne County Board of Canvassers not certify the election results until both

Republican and Democratic party inspectors compare the duplicate ballots with

original ballots.

all duplicate and original ballots for comparison purposes.

The Wayne County Board of Canvassers unseal all ballot containers and remove

The Court provide expedited discovery to plaintiffs, such as limited

interrogatories and depositions.

<fr

-tt-

A047

Case 2:20-cv-13134-LVP-RSW ECF No. 73-3, PageID.3591 Filed 12/22/20 Page 3 of 5

When considering a petition for injunctive relief the Court must apply the

following four-prong test:

The likelihood the party seeking the injunction will prevail on the merits.

The danger the party seeking the injunction will suffer irreparable harm if the

injunction is not granted.

The risk the party seeking the injunction would be harmed more by the absence

of an injunction than the opposing party would be by the granting of the

injunction.

The harm to the public interest if the injunction is issued. Davis v City of Detroit

Financial Review Team, 296 Mich. App. 568, 613; 821 NW2d 896 (2012).

In the Davis opinion, the Court also stated that injunctive relief "represents an

extraordinary and drastic use of judicial power that should be employed sparingly and

only with full conviction of its urgent necessity" Id at 612 fn 135, quoting Senior

Accountants, Analysts & Appraisers Ass'n v. Detroit, 218 Mich. App. 263, 269; 553

NW2d 679 (1996).

When deciding whether injunctive relief is appropriate MCR 3.310 (A)(4)

indicates that the plaintiff bears the burden of proving the preliminary injunction should

be granted.

Plaintiffs' pleadings do not persuade this Court that they are likely to prevail on

the merits for several reasons. First, this Court believes plaintiffs misinterpret the

required placement of major party inspectors at the absent voter counting board

location. MCL 1 68.765a (1 0) states in part "At least one election inspector from each

major political party must be present at the absent voter counting place. . ."

While

plaintiffs contends the statutory section mandates there be a Republican and

Democratic inspector at each table inside the room, the statute does not identify this

requirement. This Court believes the plain language of the statute requires there be

election inspectors at the TCF Center facility, the site of the absentee counting effort.

Pursuant to MCL 168.73a the County chairs for Republican and Democratic

parties were permitted and did submit names of absent voter counting board

inspectors to the City of Detroit Clerk. Consistent with MCL 168.674, the Detroit City

Clerk did make appointments of inspectors. Both Republican and Democratic

inspectors were present throughout the absent voter counting board location.

An affidavit supplied by Lawrence Garcia, Corporation Counsel for the City of

Detroit, indicated he was present throughout the time of the counting of absentee

A048

Case 2:20-cv-13134-LVP-RSW ECF No. 73-3, PageID.3592 Filed 12/22/20 Page 4 of 5

ballots at the TCF Center. Mr. Garcia indicated there were always Republican and

Democratic inspectors there at the location. He also indicated he was unaware of any

unresolved counting activity problems.

By contrast, plaintiffs do not offer any affidavits or specific eyewitness evidence

to substantiate their assertions. Plaintiffs merely assert in their verified complaint

"Hundreds or thousands of ballots were duplicated solely by Democratic party

inspectors and then counted." Plaintiffs' allegation is mere speculation.

Plaintiffs' pleadings do not set forth a cause of action. They seek discovery in

hopes of finding facts to establish a cause of action. Since there is no cause of action,

the injunctive relief remedy is unavailable.

Terlecki v Stewart, 278 Mich. App. 644;

754 NW2d 899 (2008).

The Court must also consider whether plaintiffs will suffer irreparable harm.

Irreparable harm requires "A particularized showing of concrete irreparable harm or

injury in order to obtain a preliminary injunction." Michigan Coalition of State

Employee Unions v Michigan Civil Service Commission, 465 Mich. 212, 225; 634

NW2d 692, (2001).

In Dunlap v City of Southfield, 54 Mich. App. 398, 403; 221 NW2d 237 (1974)

the Michigan Court of Appeals stated "An injunction will not lie upon the mere

apprehension of future injury or where the threatened injury is speculative or

conjectural."

In the present case, Plaintiffs allege that the preparation and submission of

"duplicate ballots" for "false reads" without the presence of inspectors of both parties

violates both state law, MCL 168.765a (10), and the Secretary of State election

manual. However, Plaintiffs fail to identify the occurrence and scope of any alleged

violation The only "substantive" allegation appears in paragraph 15 of the First

Amended Complaint, where Plaintiffs' allege "on information and belief that hundreds

or thousands of ballots have been impacted by this improper practice. Plaintiffs'

Supplemental Motion fails to present any further specifics. In short, the motion is

based upon speculation and conjecture. Absent any evidence of an improper

practice, the Court cannot identify if this alleged violation occurred, and, if it did, the

frequency of such violations. Consequently, Plaintiffs fail to move past mere

apprehension of a future injury or to establish that a threatened injury is more than

speculative or conjectural.

A049

Case 2:20-cv-13134-LVP-RSW ECF No. 73-3, PageID.3593 Filed 12/22/20 Page 5 of 5

This Court finds that it is mere speculation by plaintiffs that hundreds or

thousands of ballots have, in fact, been changed and presumably falsified. Even with

this assertion, plaintiffs do have several other remedies available. Plaintiffs are

entitled to bring their challenge to the Wayne County Board of Canvassers pursuant to

MCL 168.801 et seq. and MCL 168.821 et seq. Additionally, plaintiffs can file for a

recount of the vote if they believe the canvass of the votes suffers from fraud or

mistake. MCL1 68.865-1 68.868. Thus, this Court cannot conclude that plaintiffs would

experience irreparable harm if a preliminary injunction were not issued.

Additionally, this Court must consider whether plaintiffs would be harmed more

by the absence of injunctive relief than the defendants would be harmed with one.

If this Court denied plaintiffs' request for injunctive relief, the statutory ability to

seek relief from the Wayne County Board of Canvassers (MCL 168.801 et seq. and

MCL 168.821 et seq.) and also through a recount (MCL 168.865-868) would be

available. By contrast, injunctive relief granted in this case could potentially delay the

counting of ballots in this County and therefore in the state. Such delays could

jeopardize Detroit's, Wayne County's, and Michigan's ability to certify the election.

This in turn could impede the ability of Michigan's elector's to participate in the

Electoral College.

Finally, the Court must consider the harm to the public interest. A delay in

counting and finalizing the votes from the City of Detroit without any evidentiary basis

for doing so, engenders a lack of confidence in the City of Detroit to conduct full and

fair elections. The City of Detroit should not be harmed when there is no evidence to

support accusations of voter fraud.

Clearly, every legitimate vote should be counted. Plaintiffs contend this has not

been done in the 2020 Presidential election. However, plaintiffs have made only a

claim but have offered no evidence to support their assertions. Plaintiffs are unable to

meet their burden for the relief sought and for the above-mentioned reasons, the

plaintiffs' petition for injunctive relief is denied.

It is so ordered.

November 6, 2020

Date

Hon. Timothy $l. Kenpy

Chief Judge

Third Judicial Circuit Coupt of Michigan

A050

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EXHIBIT 3

A051

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Court of Appeals, State of Michigan

ORDER

Stephen L. Borrello

Donald J Trump for President Inc v Secretary of State

Presiding Judge

Docket Nos.

355378; 355397

Patrick M. Meter

LC No.

2020-000225-MZ

Amy Ronayne Krause

Judges

The motions for immediate consideration are GRANTED.

The motion to intervene filed by the City of Detroit is DENIED, without prejudice to

refiling the motion in the proceedings below should the City of Detroit still deem intervention necessary.

The Democratic National Committee’s motion for leave to file amicus brief in Docket No.

355378 is GRANTED, and the brief received on December 3, 2020 is accepted for filing.

The applications for leave to appeal are DENIED. However, the Democratic National

Committee shall retain its status as amicus curiae in the Court of Claims.

We respond to our dissenting colleague because his assertions are not supported by law

or by fact. As the defendant correctly points out, Michigan’s election results have been certified. Once

the election results have been certified, “[a] candidate for office who believes he or she is aggrieved on

account of fraud or mistake in the canvass or returns of the votes by the election inspectors may petition

for a recount of the votes cast for that office in any precinct or precincts as provided by in this chapter.”

MCL 168.862; see also MCL 168.847, MCL 168.867; MCL 168.879. Recounts are remedial in nature.

Attorney General v Board of State Canvassers, 318 Mich App 242, 252; 896 NW2d 485 (2016), lv den

500 Mich 917 (2016). “ ‘The purpose of a recount is to determine whether the results of the first count

of the ballots should stand or should be changed because of fraud or mistake in the canvass of the votes .

. . ’ ” Id., quoting Michigan Education Ass’n Political Action Committee v Secretary of State, 241 Mich

App 432, 440; 616 NW2d 234 (2000), lv den 463 Mich 997 (2001).

Here, plaintiff filed its purportedly emergent application on November 6, 2020, but did

not perfect the filing until 11:21 p.m. on November 30, 2020, when it filed its brief in support. The

Wayne County Board of Canvassers certified the results of the November 3rd election on November 17,

2020, almost a full two weeks before plaintiff perfected the instant application. The Michigan Board of

State Canvassers certified the presidential election results on November 23, 2020, a full week before

plaintiff perfected its application. 1 Plaintiff does not address whether the certification of the election

The Secretary of State represents that the Governor has sent Michigan’s official slate of presidential

electors to the United States Secretary of the Senate.

A052

Case 2:20-cv-13134-LVP-RSW ECF No. 73-4, PageID.3596 Filed 12/22/20 Page 3 of 3

result by the Board of State Canvassers had any impact on the viability of its suit below or on the

viability of the instant application.

Perhaps the reason for plaintiff failing to discuss the impact of the certification is because

such action by the Michigan State Board of Canvassers clearly rendered plaintiff’s claims for relief

moot. The Michigan State Board of Canvassers’ certification of the presidential election results and the

legislative directive found in MCL 168.862, requires plaintiff to pursue its fraud allegations by way of a

recount of the ballots cast in Wayne County. Because plaintiff failed to follow the clear law in

Michigan relative to such matters, their action is moot. MCL 168.862.

_______________________________

Presiding Judge

Meter, J., would grant leave to appeal in each case, with the direction that the Clerk draw a random 3

judge panel to decide the cases within 3 days of filing of these orders, without oral argument.

The issue of mootness is more than the "elephant in the room". The issues are not moot because state

electors have not yet been seated, the Electoral College has not yet been assembled, and Congress has not

yet convened to consider whether to exercise its powers under Art.2, Sec. 1 and Am 20.

Further plaintiff’s prayer for segregation of absentee ballots has, on information, not yet been ordered by

defendant Secretary of State. Also, the right of plaintiff to election inspectors and to observe video of

ballot drop boxes is self-evident under state law, thus entitling plaintiff to, at the least, declaratory relief.

December 4, 2020

A053

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3616 Filed 01/05/21 Page 1 of 56

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIMOTHY KING, MARIAN ELLEN

SHERIDAN, JOHN EARL HAGGARD,

CHARLES JAMES RITCHARD, JAMES

DAVID HOOPER and DAREN WADE

RUBINGH,

Plaintiffs,

No. 2:20-cv-13134

Hon. Linda V. Parker

GRETCHEN WHITMER, in her official

capacity as Governor of the State of

Michigan, JOCELYN BENSON, in her

official capacity as Michigan Secretary of

State and the Michigan BOARD OF STATE

CANVASSERS,

and

Defendants

CITY OF DETROIT, DEMOCRATIC

NATIONAL COMMITTEE and

MICHIGAN DEMOCRATIC PARTY,

Intervenor-Defendants.

THE CITY OF DETROIT’S MOTION FOR SANCTIONS, FOR

DISCIPLINARY ACTION, FOR DISBARMENT REFERRAL AND FOR

REFERRAL TO STATE BAR DISCIPLINARY BODIES

Intervenor-Defendant City of Detroit (the “City”), by and through counsel,

respectfully moves for sanctions against Plaintiffs and their counsel pursuant to

A054

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3617 Filed 01/05/21 Page 2 of 56

Federal Rule of Civil Procedure 11. The City further moves for disciplinary action

and referrals to be initiated against counsel.

The undersigned counsel certifies that counsel communicated in writing with

opposing counsel, explaining the nature of the relief to be sought by way of this

motion and seeking concurrence in the relief; opposing counsel thereafter denied

concurrence. Such concurrence was sought on December 15, 2020 and January 5,

2021.

The City also served Plaintiffs with a Motion for Sanctions under Fed. R. Civ.

P. 11 on December 15, 2020. Plaintiffs did not withdraw or correct any of the false

factual allegations and frivolous legal theories in their pleadings during the 21 day

“safe harbor” period.1 Thus, this Motion is timely.

No lawyer for the Plaintiffs responded to the email message forwarding the

Rule 11 motion. Instead, at least two of their attorneys made public statements, with

military analogies and references to opposing counsel as “the enemy.” According to

the news website Law and Crime, Plaintiffs’ counsel, Sidney Powell, when asked

about the proposed Rule 11 motion, “replied cryptically: ‘We are clearly over the

target.’” Ex. 1. Similarly, Plaintiffs’ counsel, L. Lin Wood, posted the following on

his Twitter account on December 17, 2020:

When you get falsely accused by the likes of David Fink & Marc Elias

of Perkins Coie (The Hillary Clinton Firm) in a propaganda rag like

Law & Crime, you smile because you know you are over the target &

the enemy is running scared!

L. Lin Wood (@llinwood), Twitter (Dec. 17, 2020). Perhaps the lack of civility is

related to counsels’ failure to apply for admission to the Eastern District of

Michigan’s bar. at least they would have been compelled to review and affirm their

commitment to our court’s Civility Principles.

A055

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3618 Filed 01/05/21 Page 3 of 56

This Motion is supported by the accompanying Brief.

Sanctions Pursuant to Fed. R. Civ. P. 11(b)(1)

Sanctions should be imposed under Fed. R. Civ. P. 11(b)(1) when a

pleading or other filing is presented for any improper purpose, such as to harass,

cause unnecessary delay, or needlessly increase the cost of litigation.

Sanctions pursuant to the sub-rule should be imposed against Plaintiffs

and their counsel because they initiated the instant suit for improper purposes,

including harassing the City and frivolously undermining “People’s faith in the

democratic process and their trust in our government.” Opinion and Order Denying

Plaintiffs’ “Emergency Motion for Declaratory, Emergency, and Permanent

Injunctive Relief,” ECF No. 62, PageID.3329-30.

Plaintiffs and their counsel understood that the mere filing of a suit (no

matter how frivolous) could, without any evidence, raise doubts in the minds of

millions of Americans about the legitimacy of the 2020 presidential election. As this

Court noted, “Plaintiffs ask th[e] Court to ignore the orderly statutory scheme

established to challenge elections and to ignore the will of millions of voters.” Id.

PageID.3330.

The Complaints (ECF Nos. 1 and 6), Emergency Motion for

Declaratory, Emergency, and Permanent Injunctive Relief and Memorandum in

iii

A056

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3619 Filed 01/05/21 Page 4 of 56

Support Thereof (ECF No. 7), and Emergency Motion to Seal (ECF No. 8) were

devoid of merit and thus could only have been filed for improper purposes.

Sanctions Pursuant to Fed. R. Civ. P. 11(b)(2)

Sanctions under Fed. R. Civ. P. 11(b)(2) are appropriately entered

where the claims, defenses, and other legal contentions are not warranted by existing

law or by a non-frivolous argument for extending, modifying, or reversing existing

law or for establishing new law.

Sanctions pursuant to Rule 11(b)(2) should be imposed against counsel

for Plaintiffs because the causes of action asserted in the Complaints (ECF Nos. 1

and 6), Emergency Motion for Declaratory, Emergency, and Permanent Injunctive

Relief and Memorandum in Support Thereof (ECF No. 7), and Emergency Motion

to Seal (ECF No. 8) were frivolous and legally deficient under existing law and

because Plaintiffs failed to present any non-frivolous arguments to extend, modify,

or reverse existing law.

The majority of Plaintiffs’ claims were moot. As this Court noted,

“[t]he time has passed to provide most of the relief Plaintiffs request in their

Amended Complaint; the remaining relief is beyond the power of any court. For

these reasons, this matter is moot.” ECF No. 62, PageID.3307.

Plaintiffs’ claims were also barred by laches because “they waited too

long to knock on the Court’s door.” Id. at PageID.3310. Indeed, “Plaintiffs showed

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Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3620 Filed 01/05/21 Page 5 of 56

no diligence in asserting the claims at bar.” Id. at PageID.3311. This delay prejudiced

the City. Id. at PageID.3313.

Plaintiffs lacked standing to pursue their claims. Id. at PageID.3317-

10.

Plaintiffs’ claim for violation of the Elections and Electors Clauses is

3324.

frivolous. As this Court held, “Plaintiffs ask the Court to find that any alleged

deviation from state election law amounts to a modification of state election law and

opens the door to federal review. Plaintiffs cite to no case – and this Court found

none – supporting such an expansive approach.” Id. at PageID.3325.

11.

Plaintiffs’ due process and equal protection clause claims are also

baseless. With regard to the due process claim, this Court held that “Plaintiffs do not

pair [the due process claim] with anything the Court could construe as a developed

argument. The Court finds it unnecessary, therefore, to further discuss the due

process claim.” Id. at PageID.3317. As to the equal protection claim, this Court

stated that “[w]ith nothing but speculation and conjecture that votes for President

Trump were destroyed, discarded or switched to votes for Vice President Biden,

Plaintiffs’ equal protection claim fails.” Id. at PageID.3328.

12.

For each of Plaintiffs’ claims, Plaintiffs did not identify valid legal

theories and the controlling law contradicted the claims. The claims were not

A058

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3621 Filed 01/05/21 Page 6 of 56

warranted by existing law or by a non-frivolous argument for extending, modifying,

or reversing existing law or for establishing new law.

13.

Plaintiffs’ Emergency Motion for Declaratory, Emergency, and

Permanent Injunctive Relief and Memorandum in Support Thereof (ECF No. 7) was

without any legal basis because, as described above, the underlying claims are

baseless, and the requests for relief were frivolous.

14.

Plaintiffs’ Emergency Motion to Seal (ECF No. 8) was without any

legal basis because Plaintiffs seek to anonymously file supposed evidence of a broad

conspiracy to steal the 2020 presidential election without providing any authority

whatsoever to attempt to meet their heavy burden to justify the sealed filing of these

documents.

Sanctions Pursuant to Fed. R. Civ. P. 11(b)(3)

15.

Sanctions can be imposed under Fed. R. Civ. P. 11(b)(3) where factual

contentions do not have evidentiary support or will likely not have evidentiary

support after a reasonable opportunity for further investigation or discovery.

16.

Sanctions should be entered against Plaintiffs and their counsel

pursuant to Fed. R. Civ. P. 11(b)(3) because the factual contentions raised in the

complaints and motions were false.

17.

The key “factual” allegations from the supposed fact witnesses, some

of whom attempt to cloak their identities while attacking democracy, have been

A059

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3622 Filed 01/05/21 Page 7 of 56

debunked. The allegations about supposed fraud in the processing and tabulation of

absentee ballots by the City at the TCF Center have been rejected by every court

which has considered them. If any of the claims in this lawsuit had merit, that would

have been demonstrated in those cases. The City refers the Court to its Response to

Plaintiffs’ Emergency Motion for Declaratory, Emergency, and Permanent

Injunctive Relief for a detailed debunking of Plaintiffs’ baseless factual contentions.

ECF No. 39, PageID.2808-2933.

Disciplinary Proceedings

18.

E. D. Mich. LR 83.22 authorizes the Court to levy punishments other

than suspension or disbarment on a practicing attorney whose conduct has violated

the Rules of Professional Conduct, the Local Rules, the Federal Rules of Civil or

Bankruptcy Procedure, orders of the Court, or who has engaged in conduct

considered to be “unbecoming of a member of the bar of this court.”

19.

The Rule also authorizes the Court to refer counsel to the Chief Judge

of this District for disbarment or suspension proceedings.

20.

And, the Rule authorizes the Court to refer counsel to the Michigan

Attorney Discipline Board and to the disciplinary authorities of counsels’ home

jurisdictions for purposes of disciplinary proceedings.

vii

A060

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3623 Filed 01/05/21 Page 8 of 56

WHEREFORE, for the foregoing reasons and the reason stated in the

accompanying brief, the City of Detroit respectfully requests that this Court enter an

Order:

(a) Imposing monetary sanctions against Plaintiffs and their counsel in an

amount determined by this Court to be sufficient to deter future misconduct (such

amount should be, at the least, the amount that Plaintiffs’ counsel have collected in

their fundraising campaigns, directly or through entities they own or control, for their

challenges to the 2020 election);

(b) Requiring Plaintiffs and their counsel to pay all costs and attorney fees

incurred by the City in relation to this matter (as well as costs and fees incurred by

all other Defendants);

to the filing of any appeal of this action (and to maintain their present appeal);

(d) Requiring Plaintiffs and their counsel to post a bond of $100,000 prior to

filing, in any court, an action against the City, or any other governmental entity or

their employees, relating to or arising from the facts alleged in this matter;

(e) Requiring Plaintiffs to post a substantial bond, in an amount determined

by the Court, prior to filing an action in the Eastern District of Michigan;

(f) Requiring Plaintiffs and their counsel to obtain certification from a

magistrate judge that the proposed claims are not frivolous or asserted for an

viii

A061

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3624 Filed 01/05/21 Page 9 of 56

improper purpose, before filing an action in the Eastern District of Michigan (and,

if the magistrate determines that the proposed claims are frivolous or asserted for an

improper purpose, requiring the plaintiff[s] to post a bond before filing the proposed

action in an amount the magistrate determines is sufficient to protect the

defendant[s]);

(g) Requiring Plaintiffs and their counsel to certify, via affidavit, under

penalty of perjury, that they have paid all amounts required to fully satisfy any nonappealable orders for sanctions entered by any court, prior to filing an action in the

Eastern District of Michigan;

(h) Barring Plaintiffs’ counsel from practicing law in the Eastern District of

Michigan (after the issuance of a show cause order);

(i) Referring Plaintiffs’ counsel to the Chief Judge of this District for initiation

of disbarment proceedings;

(j) Referring all Plaintiffs’ counsel to the Michigan Attorney Grievance

Commission (and also to the disciplinary authorities of their home jurisdictions,

including: Sidney Powell to the Michigan Bar and to the Texas bar; L. Lin Wood to

the Michigan Bar and to the Georgia bar; Greg Rohl to the Michigan bar; Emily

Newman to the Michigan Bar and to the Virginia bar; Julia Haller to the Michigan

Bar and to the Washington D.C. bar; Brandon Johnson to the Michigan Bar and to

A062

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3625 Filed 01/05/21 Page 10 of 56

the Washington D.C. bar; Scott Hagerstrom to the Michigan bar; Howard

Kleinhendler to the Michigan Bar and to the New York bar); and,

(k) Granting any other relief that the Court deems just or equitable.

January 5, 2021

Respectfully submitted,

FINK BRESSACK

By: /s/ David H. Fink

David H. Fink (P28235)

Darryl Bressack (P67820)

Nathan J. Fink (P75185)

Attorneys for City of Detroit

38500 Woodward Ave., Ste. 350

Bloomfield Hills, MI 48304

Tel: (248) 971-2500

dfink@finkbressack.com

dbressack@finkbressack.com

nfink@finkbressack.com

CITY OF DETROIT

LAW DEPARTMENT

Lawrence T. Garcia (P54890)

James D. Noseda (P52563)

Attorneys for City of Detroit

2 Woodward Ave., 5th Floor

Detroit, MI 48226

Tel: (313) 237-5037

garcial@detroitmi.gov

nosej@detroitmi.gov

A063

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3626 Filed 01/05/21 Page 11 of 56

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIMOTHY KING, MARIAN ELLEN

SHERIDAN, JOHN EARL HAGGARD,

CHARLES JAMES RITCHARD, JAMES

DAVID HOOPER and DAREN WADE

RUBINGH,

Plaintiffs,

No. 2:20-cv-13134

Hon. Linda V. Parker

GRETCHEN WHITMER, in her official

capacity as Governor of the State of

Michigan, JOCELYN BENSON, in her

official capacity as Michigan Secretary of

State and the Michigan BOARD OF STATE

CANVASSERS,

Defendants.

BRIEF IN SUPPORT OF

THE CITY OF DETROIT’S MOTION FOR SANCTIONS, FOR

DISCIPLINARY ACTION, FOR DISBARMENT REFERRAL AND FOR

REFERRAL TO STATE BAR DISCIPLINARY BODIES

A064

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3627 Filed 01/05/21 Page 12 of 56

TABLE OF CONTENTS

INDEX OF AUTHORITIES..................................................................................... II

STATEMENT OF THE ISSUES PRESENTED .................................................... IV

CONTROLLING OR MOST APPROPRIATE AUTHORITIES ............................ V

INTRODUCTION .....................................................................................................1

ARGUMENT .............................................................................................................4

I. Rule 11 Standards ............................................................................................. 4

II. The Complaint was Filed for an Improper Purpose ......................................... 5

III. The Factual Assertions in the Complaint Were Frivolous and Based on

Assertions Which Had Been Rejected by Michigan Courts ................................. 13

Allegations Regarding Republican Challengers .....................................13

Allegations of “Pre-Dating” ....................................................................14

Allegations Regarding Ballots Supposedly Counted More than Once ...15

Allegations Regarding Tabulating Machines ..........................................16

The Declarations and Analyses “Supporting” the Complaint Were Full

of Intentional Lies ...................................................................................18

IV. Plaintiffs’ Legal Theories Were Frivolous ..................................................... 27

V. The Sanctions Which Should be Imposed Pursuant to Rule 11 ..................... 31

VI. Plaintiffs’ Counsel Should also be Disciplined and Referred to the Chief

Judge for Disbarment ............................................................................................ 35

CONCLUSION ........................................................................................................38

A065

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3628 Filed 01/05/21 Page 13 of 56

INDEX OF AUTHORITIES

Cases

Bognet v. Secy Commonwealth of Pennsylvania,

980 F.3d 336 (3rd Cir. Nov. 13, 2020) .................................................................28

Bowyer v. Ducey, CV-20-02321, 2020 WL 7238261

(D. Ariz. Dec. 9, 2020) .......................................................................... 2, 3, 18, 19

Costantino v Detroit, No. 162245, 2020 WL 6882586 (Mich. Nov. 23, 2020) ......13

Costantino v. Detroit, Opinion and Order,

Wayne County Circuit Court Case No. 20-014780-AW (Nov. 13, 2020) ...........13

DeGeorge v. Warheit, 276 Mich. App. 587, 741 N.W.2d 384 (2007) ....................37

Ex parte Young, 209 U.S. 123 (1908) ......................................................................29

Feathers v Chevron U.S.A., Inc., 141 F.3d 26 (6th Cir. 1998) ................................33

Feehan v. Wisconsin Elections Comm'n,

No. 20-CV-1771, 2020 WL 7250219 (E.D. Wis. Dec. 9, 2020) ............................2

Georgia Republican Party v. Secy of State of Georgia,

No. 20-14741, 2020 WL 7488181 (11th Cir. Dec. 21, 2020) ..............................28

Holling v. U.S., 934 F. Supp. 251 (E.D. Mich. 1996)..............................................36

INVST Financial Group, Inc. v. Chem-Nuclear Systems, Inc.,

815 F.2d 391 (6th Cir. 1987) ........................................................................... 5, 31

Johnson v. Secy of State, No. 162286, 2020 WL 7251084 (Mich. Dec. 9, 2020) ...24

King v. Whitmer,

No. CV 20-13134, 2020 WL 7134198 (E.D. Mich. Dec. 7, 2020) ........................1

Mann v. G &G Mfg., Inc., 900 F.2d 953 (6th Cir. 1990) .................................... 5, 31

Orlett v. Cincinnati Microwave, Inc., 954 F.2d 414 (6th Cir. 1992) .......................31

Ortman v. Thomas, 99 F.3d 807 (6th Cir. 1996) .....................................................33

Pearson v. Kemp, No. 1:20-cv-4809 (N.D. Ga. Dec. 7, 2020) ..................................2

A066

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3629 Filed 01/05/21 Page 14 of 56

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ..........................29

Roberson v. Norfolk Southern Railway Co.,

2020 WL 4726937 (E.D. Mich. Aug. 14, 2020) ..................................................32

SLS v. Detroit Public Schools,

No. 08-14615, 2012 WL 3489653 (E.D. Mich. Aug. 15, 2012) ..........................32

Stephenson v. Central Michigan University,

No. 12-10261, 2013 WL 306514 (E.D. Mich. Jan. 25, 2013) ..............................32

Texas v. Pennsylvania, No. 155 ORIG., 2020 WL 7296814 (U.S. Dec. 11, 2020) ..9

Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866 (5th Cir. 1988) .........................36

Wisconsin Voters Alliance v. Pence, No. 1:20-cv-03791 (D.C. Jan. 4, 2021) ..........6

Statutes and Rules

E. D. Mich. LR 83.20 ...............................................................................................35

E. D. Mich. LR 83.22 ...............................................................................................36

Fed. R. Civ. P. 11(b)(1).................................................................................... Passim

Fed. R. Civ. P. 11(b)(2).................................................................................... Passim

Fed. R. Civ. P. 11(b)(3).................................................................................... Passim

Fed. R. Civ. P. 11(c)(5) ..............................................................................................4

III

A067

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STATEMENT OF THE ISSUES PRESENTED

Should the Court sanction Plaintiffs and their counsel pursuant to Fed.

R. Civ. P. 11?

The City answers: “Yes.”

II.

Should the Court discipline Plaintiffs’ counsel, refer them to the Chief

Judge of this District for disbarment proceedings and refer them to the Michigan

Attorney Grievance Commission and their home state bars for disciplinary

proceedings?

The City answers: “Yes.”

A068

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3631 Filed 01/05/21 Page 16 of 56

CONTROLLING OR MOST APPROPRIATE AUTHORITIES

Fed. R. Civ. P. 11(b)(1)

Fed. R. Civ. P. 11(b)(2)

Fed. R. Civ. P. 11(b)(3)

E. D. Mich. LR 83.22

Bowyer v. Ducey, CV-20-02321, 2020 WL 7238261 (D. Ariz. Dec. 9, 2020)

Costantino v. Detroit, Opinion and Order, Wayne County Circuit Court Case No.

20-014780-AW (Nov. 13, 2020)

Ex parte Young, 209 U.S. 123 (1908)

King v. Whitmer, No. CV 20-13134, 2020 WL 7134198 (E.D. Mich. Dec. 7, 2020)

Mann v. G & G Mfg., Inc., 900 F.2d 953 (6th Cir. 1990)

A069

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3632 Filed 01/05/21 Page 17 of 56

INTRODUCTION

This Court has already concluded that Plaintiffs present “nothing but

speculation and conjecture” and that “this lawsuit seems to be less about achieving

the relief Plaintiffs seek—as much of that relief is beyond the power of this Court—

and more about the impact of their allegations on People’s faith in the democratic

process and their trust in our government.” King v. Whitmer, No. CV 20-13134, 2020

WL 7134198, at *13 (E.D. Mich. Dec. 7, 2020). Now, it is time for Plaintiffs and

their counsel to answer for that misconduct.

It is indelibly clear that this lawsuit was filed for an improper purpose, and the

failure to dismiss or amend the Complaint after service of a Rule 11 motion warrants

the strongest possible sanctions. There are so many objectively false allegations in

the Complaint that it is not possible to address all of them in a single brief. This brief

will address some of the more extreme examples.

For instance, Plaintiffs claim that their self-proclaimed experts include a

military intelligence analyst, but when they accidentally disclosed his name, the

“expert” was revealed to have washed out of the training course for military

intelligence. Plaintiffs’ counsel did not redact the information to “protect” the

“informant,” they did so to hide their fraud on the court.2

In addition to this case, Plaintiffs’ attorneys filed three other remarkably

similar, and similarly frivolous, “release the kraken” lawsuits. The requested relief

A070

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Plaintiffs’ “expert” reports are rife with misstatements of Michigan law and

election procedures. Those reports lack the simplest foundation of technical

expertise, fail to use even elementary statistical methods and reach conclusions that

lack any persuasive value. But, those unscientific conclusions, based upon false

premises and faulty techniques are presented here as though they embody the

uncontroverted truth.

Plaintiffs have no apparent interest in the accuracy of their allegations and

there is no innocent explanation for the numerous misrepresentations. They claim

that turnout in some jurisdictions in the State exceeded 100%, even up to 781.91%,

with turnout for Detroit at 139.29%. See Ramsland Aff., ECF No. 6-24,

PageID.1574. But they had to know that claim was false; the actual results were

readily available at the time Plaintiffs and their “experts” made the claim, and show

turnout well below 100%, including in Detroit at 50.88%. Ex. 2.3

was quickly denied or the case was dismissed for each. See Feehan v. Wisconsin

Elections Comm'n, No. 20-CV-1771, 2020 WL 7250219 (E.D. Wis. Dec. 9, 2020);

Bowyer v. Ducey, CV-20-02321, 2020 WL 7238261 (D. Ariz. Dec. 9, 2020); and

Pearson v. Kemp, No. 1:20-cv-4809 (N.D. Ga. Dec. 7, 2020) (Ex. 3).

Plaintiffs made the same claim about Michigan in the lawsuit they filed in

Georgia, but apparently because the “expert” confused the postal code abbreviation

for Minnesota with that of Michigan, used Minnesota jurisdictions to make the

argument that turnout exceeded 100%. Ex. 4. The fact that Plaintiffs’ counsel

discovered the error regarding postal abbreviations (after it was widely mocked in

the media), but then proceeded to make the same false claim here, substituting

Michigan jurisdictions, shows that the point was to make the claim, not to present

the truth. As stated by the district court in the Arizona “kraken” lawsuit when

A071

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Meanwhile, President Trump continues to use these lawsuits in his desperate

campaign to thwart the will of the voters. On January 2, 2021, during a call with

Georgia’s Secretary of State, Brad Raffensperger, in which the President is heard

attempting to extort Secretary Raffensperger into committing election fraud, Trump

trotted out the same hoary canards as the Plaintiffs falsely argue to this Court:

I mean there’s turmoil in Georgia and other places. You’re not the only

one, I mean, we have other states that I believe will be flipping to us

very shortly. And this is something that — you know, as an example, I

think it in Detroit, I think there’s a section, a good section of your state

actually, which we’re not sure so we’re not going to report it yet. But

in Detroit, we had, I think it was, 139 percent of the people voted. That’s

not too good.

See Ex. 5, pp. 3-4 (Transcript of January 2, 2021 Telephone Call, as transcribed for

the Washington Post).4

The City gave Plaintiffs and their counsel the opportunity to retract their lies

and baseless legal claims, and they have refused. The extent of the factual and legal

errors in this Complaint would warrant sanctions under any circumstances, but here

the Court’s processes are being perverted to undermine our democracy and to upset

dismissing the claims, and as equally applicable here, “[t]he various affidavits and

expert reports are largely based on anonymous witnesses, hearsay, and irrelevant

analysis of unrelated elections.” Bowyer v. Ducey, No. CV-20-02321, 2020 WL

7238261, at *13 (D. Ariz. Dec. 9, 2020).

President Trump also continues to use this lawsuit (and the suits filed in other

swing states which voted for President-Elect Biden) to fundraise. As of early

December 2020, Trump had reportedly raised $207.5 million in post-election

fundraising. Ex. 6.

A072

Case 2:20-cv-13134-LVP-RSW ECF No. 78, PageID.3635 Filed 01/05/21 Page 20 of 56

the peaceful transition of power. The Plaintiffs and all of their attorneys deserve the

harshest sanctions this Court is empowered to order.

ARGUMENT

Rule 11 Standards

Sanctions under Fed. R. Civ. P. 11(b)(1) are appropriate when a pleading or

other filing is presented for an improper purpose, such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation. Fed. R. Civ. P.

11(b)(1). Sanctions under Fed. R. Civ. P. 11(b)(2) are appropriate where the claims,

defenses, and other legal contentions of the offending party are not warranted by

existing law or by a non-frivolous argument for extending, modifying, or reversing

existing law or for establishing new law. Fed. R. Civ. P. 11(b)(2). Sanctions are

appropriate under Fed. R. Civ. P. 11(b)(3) where factual contentions do not have

evidentiary support or will likely not have evidentiary support after a reasonable

opportunity for further investigation or discovery.5

To determine whether a party’s pleading is frivolous or was filed for an

improper purpose, courts use an objective standard of reasonableness under the

circumstances and then weigh the evidence to determine if the pleadings, motions or

Monetary sanctions cannot be imposed against a represented party for

violation of Fed. R. Civ. P. 11(b)(2). See Fed. R. Civ. P. 11(c)(5). Thus, the City

requests non-monetary sanctions, as identified below, against Plaintiffs for violation

of 11(b)(2) and monetary and non-monetary sanctions against counsel.

A073

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papers are well-grounded in facts or warranted by existing law. Mann v. G &G Mfg.,

Inc., 900 F.2d 953 (6th Cir. 1990).6

II.

The Complaint was Filed for an Improper Purpose

It is clear that this lawsuit was not filed for any purpose consistent with the

Federal Rules of Civil Procedure. This Court has already addressed many of the

reasons that the Plaintiffs “are far from likely to succeed in this matter.” King, 2020

WL 7134198, at *13. The claims are barred by Eleventh Amendment Immunity; the

claims are barred by mootness and laches; Plaintiffs lack standing; and, even if

Plaintiffs could show a violation of state law, they have not offered a colorable claim

under federal statutory or constitutional law. To make matters worse, Plaintiffs were

always aware that their Complaint was deficient; no other inference can be drawn

from their failure to serve the Defendants before this Court issued its December 1,

2020, text-only order.7

Moreover, for the purposes of Rule 11 sanctions, a showing of “good faith,”

is not sufficient to avoid sanctions. INVST Financial Group, Inc. v. Chem-Nuclear

Systems, Inc., 815 F.2d 391 (6th Cir. 1987).

A similar circumstance was noted on January 4, 2021, in a ruling by the

United States District Court for the District of Columbia, addressing another

groundless Trump election lawsuit:

[Plaintiffs’] failure to make any effort to serve or formally notify any

Defendant — even after a reminder by the Court in its Minute Order —

renders it difficult to believe that the suit is meant seriously. Courts are

not instruments through which parties engage in such gamesmanship or

symbolic political gestures. As a result, at the conclusion of this

litigation, the Court will determine whether to issue an order to show

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This lawsuit is the quintessential example of a case filed for an improper

purpose. As this Court concluded, in denying preliminary relief:

this lawsuit seems to be less about achieving the relief Plaintiffs seek—

as much of that is beyond the power of this Court—and more about the

impact of their allegations on People’s faith in the democratic process

and their trust in our government.

King, at *13. Plaintiffs’ counsel have not hidden their contempt for our courts and

for our democracy. Plaintiffs’ counsel Sidney Powell claims that courts have rejected

the election lawsuits, “because the corruption goes deep and wide.”8 She re-tweets

calls to impose martial law, to “suspend the December Electoral College vote,” and

to “set up Military Tribunals immediately.” @sidneypowell1, Twitter (Nov. 30,

2020). Her co-counsel, L. Lin Wood, unabashedly expresses his contempt for our

democratic processes and openly promotes a military coup:

Georgia, Michigan, Arizona, Nevada, Wisconsin, Minnesota &

Pennsylvania are states in which martial law should be imposed &

machines/ballots seized. 7 states under martial law. 43 states not under

martial law. I like those numbers. Do it @realDonaldTrump! Nation

supports you. (@llinwood, Twitter (Dec. 20, 2020)).

Patriots are praying tonight that @realDonaldTrump will impose

martial law in disputed states, seize voting machines for forensic

cause why this matter should not be referred to its Committee on

Grievances for potential discipline of Plaintiffs’ counsel.

Wisconsin Voters Alliance v. Pence, No. 1:20-cv-03791 (D.C. Jan. 4, 2021) (Ex. 7).

Quote from video interview of Sidney Powell, promoted on her twitter

account at https://twitter.com/AKA_RealDirty/status/1338401580299681793.

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examination, & appoint @SidneyPowell as special counsel to

investigate election fraud. (Dec. 19, 2020).

When arrests for treason begin, put Chief Justice John Roberts, VP

Mike Pence @VP @Mike_Pence, & Mitch McConnell @senatemajldr

at top of list. (Jan. 1, 2021).

If Pence is arrested, @SecPompeo will save the election. Pence will be

in jail awaiting trial for treason. He will face execution by firing squad.

He is a coward & will sing like a bird & confess ALL. (Jan. 1, 2021).9

These are the lawyers who are trying to use this Court’s processes to validate their

conspiracy theories and to support their goal of overturning the will of the people in

a free and fair election. They were given an opportunity to dismiss or amend their

Complaint, but they chose to continue to use this case to spread their false messages.

Those false messages are not the result of occasional errors or careless editing.

Those false messages are deliberately advanced by these attorneys to support their

goals of undermining our democracy. Like Sidney Powell, L. Lin Wood, is a QAnon

disciple.10 He recently stated:

This country’s going to be shocked when they find the truth about

who’s been occupying the Oval Office for some periods of years.

They’re going to be shocked at the level of pedophilia. They are going

While Mr. Wood’s wrath was initially focused on Democrats, he has shifted

to attacking Republican officials (and judges and justices who he views as

Republican) for their perceived disloyalty to Trump and refusal to abuse the

Constitution.

A judge in Delaware is currently considering revoking Mr. Wood's right to

practice in Delaware, where he is currently representing former Trump adviser

Carter Page, based on his conduct in suits challenging the results of the general

election as a plaintiff in Georgia and as counsel in Wisconsin. Ex. 8.

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to be shocked at what I believe is going to be a revelation in terms of

people who are engaged in Satanic worship.”11

A review of Mr. Wood’s Twitter account reveals a dark strain of paranoia—the same

strain which infects this lawsuit.

Mr. Wood repeatedly makes false allegations about the 2020 election, the

most secure in our country’s history.12 The following is a sampling of his tweets:

There should be NO Electoral College vote in any state today. Fraud is

rampant in all state elections. If U.S. Supreme Court does not have

courage to act, I believe our President @realDonaldTrump has the

courage. (Dec. 14, 2020).

We The People must now launch massive campaign to prevent our state

electors from EVER casting vote in Electoral College for Joe Biden &

Kamala Harris. Unless you want them to vote for Communism. In that

event, get out of our country & go enjoy your life in Communist China.

(Dec. 20, 2020).

Joe Biden & Kamala Harris are Communists by either ideology,

corruptness or extortion. Still want your state electors to vote for Biden

on 1/6? Want Communism & tyranny or a free America where you can

enjoy life, liberty & pursuit of happiness? (Dec. 20, 2020).

https://welovetrump.com/2020/11/23/lin-wood-americans-will-beshocked-at-level-of-pedophilia-satanic-worship-occupying-oval-office-for-yearsbefore-trump/.

The November 2020 general election was declared by the federal

government to be the most secure in the nation’s history. See Joint Statement from

Elections Infrastructure Government Coordinating Council & The Election

Infrastructure Sector Coordinating Executive Committees (“CISA”), issued Nov 12,

2020 (“The November 3rd election was the most secure in American history.”) (Ex.

9). The CISA statement further concluded “[t]here is no evidence that any voting

system deleted or lost votes, changed votes, or was in any way compromised.” Id.

Five days after this statement was released, Chris Krebs, director of CISA, was

terminated by presidential tweet.

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When courts refuse to accept his invitation to disregard the fundamental tenets of

our democracy, he blames corruption and communism in the judiciary:

Attempted theft of Presidential election will NOT stand. Not on our

watch, Patriots. Communists & Communist sympathizers have

infiltrated our judicial system, including lawyers & judges in Georgia.

(Dec. 23, 2020).

Communism has infiltrated ALL levels of our government, including

our judiciary. Communism infiltrates by ideology, by

corruption/money & by extortion. (Dec. 20, 2020).

Too many of us have been asleep at switch in the past. … We believed

too many of our judges. Many are corrupt & traitors. (Dec. 19, 2020).

Some state & federal lower court rulings to date are troubling. Courage

lacking in some members of judiciary. (Dec. 10, 2020).

We CANNOT trust courts to save our freedom. They are IGNORING

massive evidence of fraud & unlawful election procedures. (Dec. 13,

2020).

We have had reports of judges & their families being threatened. This

would certainly explain some of the bizarre rulings by lower courts that

have refused to even mention the overwhelming evidence of fraud in

cases filed by @SidneyPowell. (Dec. 14, 2020).

When, the Supreme Court denied certiorari in Texas’s lawsuit against the “swing

states” which voted for Joe Biden,13 and when the Supreme Court took no action on

the nonsensical direct appeal in this case, Mr. Wood displayed his utter contempt for

that institution:

It is time for Chief Justice John Roberts to resign, admit his corruption

& ask for forgiveness. Roberts has betrayed his sacred oath office. He

2020).

Texas v. Pennsylvania, No. 155 ORIG., 2020 WL 7296814 (U.S. Dec. 11,

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has betrayed his country. He has betrayed We The People. (Dec. 19,

2020).

I think many are today learning why SCOTUS is rejecting petitions

seeking FAIR review. Roberts & Breyer are “anti-Trumpers” They

should resign immediately. CJ Roberts has other reasons to resign. He

is a disgrace to office & to country. (Dec. 17, 2020).

Corruption & deceit have reached most powerful office in our country

- the Chief Justice of U.S. Supreme Court. This is a sad day for our

country but a day on which we must wake up & face the truth. Roberts

is reason that SCOTUS has not acted on election cases. (Dec. 17, 2020).

Justice John Roberts is corrupt & should resign immediately. Justice

Stephen Breyer should also resign immediately. (Dec. 17, 2020).

I am disappointed. I thought Justices Roberts & Breyer would avoid

public scandal & simply resign. Only a fool wants their dirty laundry

aired in public. Maybe I should consider filing a formal motion for

recusal & hang their laundry on the clothesline to be exposed to

sunlight? (Jan. 2, 2021).

This is the same L. Lin Wood who appears on the pleadings of this case, but who

has apparently chosen not to be sworn into the bar for the Eastern District of

Michigan and to affirm our Civility Principles.

Sidney Powell—who President Trump has reportedly considered appointing

as “special counsel,” who apparently has the ear of the President and who has

advocated for martial law—is less prolific on Twitter but shares Mr. Wood’s

perspective. She has tweeted that “[t]his ‘election’ was stolen from the voters in a

massive fraud.” @sidneypowell1, Twitter (Jan. 2, 2021). And, like Mr. Wood, she

channels 19502 McCarthy paranoia, seeing communists around every electoral

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.