Opposition Brief — L. Lin Wood, Petitioner v. Gretchen Whitmer, Governor of Michigan, et al.

i

QUESTIONS PRESENTED

Petitioner was sanctioned for frivolous filings in

a case purportedly seeking to overturn the result of the

2020 presidential election in Michigan. Petitioner

claims that the district court erred in sanctioning him

under Rule 11 because he did not sign any

sanctionable filing. The district court did not find that

Petitioner signed a sanctionable filing; the court found

that Petitioner was responsible for the sanctionable

conduct. The Rule 11 sanctions were also proper

because both the City of Detroit and the district court

complied with the procedural requirements of Rule 11.

The questions presented are:

1.

Whether a court has the authority to

sanction an attorney it determines is responsible for a

violation of Rule 11 if that lawyer did not sign the

improper filings.

2.

Whether the City of Detroit complied

with Rule 11(c)(2) by serving the Rule 11 Motion upon

Petitioner 21 days before it was filed.

ii

PARTIES TO THE PROCEEDINGS

Petitioner is L. Lin Wood, who was counsel for

plaintiffs in the district court and appellant in the

court of appeals.

Petitioner’s co-counsel in the district court—

Sidney

Powell,

Brandon

Johnson,

Howard

Kleinhendler, Julia Haller, Gregory Rohl and Scott

Hagerstrom—have filed a separate Petition (No. 23486).

Sanctions against two of Petitioner’s co-counsel,

Stefanie Lynn Junttila and Emily Newman were

reversed by the Sixth Circuit. Accordingly, they have

no interest in this Petition.

Respondents are Gretchen Whitmer in her

official capacity as Governor of Michigan. Jocelyn

Benson in her official capacity as Michigan Secretary

of State and the City of Detroit, Michigan, who were

defendants in the district court and appellees in the

court of appeals.

Another defendant—the Michigan State Board

of Canvassers—was dismissed in the district court, did

not seek sanctions, was not a party in the court of

appeals, and is not a respondent here.

iii

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDINGS........................ i

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

TABLE OF AUTHORITIES.................................... iv

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

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

STATEMENT OF THE CASE ................................. 1

REASONS FOR DENYING THE PETITION ......... 8

I.

The District Court Properly Determined that

Petitioner was Responsible for the Sanctionable

Conduct .....................................................................8

II. The Purported Circuit Split Regarding Rule 11 Does

Not Support Review ..................................................9

A.

Petitioner has Waived any Argument

Regarding the Purported Circuit Split ....................... 9

B.

The City Complied with the Rule 11(c)(2) “SafeHarbor” Requirement .................................................10

C.

The Purported Circuit Split Does Not Support

Review ........................................................................13

III. Petitioner’s Arguments Regarding Bar Referral

Relief are Moot ........................................................16

CONCLUSION ....................................................... 16

iv

TABLE OF AUTHORITIES

Cases

Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1970) .................................................. 9

Burbidge Mitchell & Gross v. Peters,

622 F. Appx. 749 (10th Cir. 2015).......................... 12

McGreal v. Village of Orland Park,

928 F.3d 556 (7th Cir. 2019) .................................. 13

Meyer v. Holley,

527 U.S. 28 (2003) .................................................... 9

Nisenbaum v. Milwaukee Cnty.,

333 F.3d 804 (7th Cir. 2003) .................................. 13

Pavelic & LeFlore v. Marvel Ent. Grp.,

493 U.S. 120 (1989) .................................................. 8

Penn, LLC v. Prosper Bus. Dev. Corp.,

773 F.3d 765 (6th Cir. 2014) ............................ 11, 13

Pennsylvania Dept. of Corr. v. Yeskey,

524 U.S. 206 (1998) .................................................. 9

Roth v. Green,

466 F.3d 1179 (10th Cir. 2006) .............................. 12

Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy &

Sauce Factory, Ltd.,

683 F.3d 170 (2d Cir. 2012).................................... 12

Uptown Grill, LLC v. Camellia Grill Holdings, Inc.,

46 F.4th 374 (2022) ................................................ 12

Statutes

28 U.S.C. § 1927 ...................................................... 4, 6

v

Rules

E.D. Mich. L.R. 83.22 ................................................ 11

Fed. R. Civ. P. 11(b) ................................................. 7, 8

Fed. R. Civ. P. 11(b)(2) .............................................. 10

Fed. R. Civ. P. 11(b)(3) .............................................. 10

Fed. R. Civ. P. 11(c)(1) ................................................. 8

Fed. R. Civ. P. 11(c)(2) ..................................... 9, 11, 13

1

OPINIONS BELOW

The Sixth Circuit’s Opinion is reported at 71

F.4th 511 and reprinted in Petitioner’s Appendix

(“Pet. App.”) at 1a. The district court Opinion and

Order finding that Petitioner violated Rule 11 is

published at 556 F. Supp. 3d 680 and reprinted at Pet.

App. 65a. The unpublished district court Opinion and

Order regarding the monetary sanctions awarded is

reprinted at Pet. App. 40a.

JURISDICTION

Petitioner argues this Court has jurisdiction

under 28 U.S.C. § 1254(1). Respondents do not object

to Petitioner’s Statement of Jurisdiction.

STATEMENT OF THE CASE

Petitioner and his co-counsel purportedly filed

the underlying case to invalidate the votes of millions

of Michigan residents, seeking the unprecedented

relief of an “emergency order instructing Defendants

to de-certify the results of the General Election for the

Office of the President[,]” or, “[a]lternatively,...an

order instructing the Defendants to certify the results

of the General Election for the Office of the President

in favor of President Donald Trump.” Pet. App. 331a

at ¶¶ 229-230. If they had been serious about their

allegations, they could have sought a recount; instead

they filed a collection of baseless claims. Any attorney

with the slightest understanding of Michigan election

law and procedures had to know that these were

claims were destined for dismissal. This was not a

2

legitimate attempt to obtain judicial relief. This

frivolous lawsuit—entirely devoid of legitimate factual

or legal support—was part of a broader attack on the

peaceful transition of power, seeking to bolster the

false claims of election deniers and to provide the

appearance of legitimacy to Donald Trump’s attack on

our democratic republic.

The City of Detroit (the “City”) intervened to

protect the rights of its citizens and because most of

the allegations of purported fraud were based on

allegations relating to the processing and tabulation of

absentee ballots by the City.

The 2020 Election

Despite a broadly orchestrated campaign to

spread false rumors and conspiracy theories to

undermine the free and fair election of President Joe

Biden, no evidence of election irregularities materially

affecting the outcome of the 2020 Presidential Election

has ever been produced. Attorney General Bill Barr

declared that the Justice Department had “not seen

fraud on a scale that could have effected a different

outcome in the election.” Michael Balsamo, Disputing

Trump, Barr says no widespread election fraud,

ASSOCIATED PRESS (June 28, 2022). Likewise, a

months-long investigation led by Republican members

of the Michigan Senate concluded that there was “no

evidence of widespread or systematic fraud in

Michigan’s prosecution of the 2020 election[.]” Clara

Hendrickson

and

Dave

Boucher,

Michigan

3

Republican-led investigation rejects Trump’s claim

that Nov. 3 election was stolen, DETROIT FREE PRESS

(June 23, 2021).

Procedural Background

Although they were seeking emergency relief

affecting the outcome of the 2020 General Election,

Petitioner and his co-counsel waited three weeks after

the Election before filing their initial complaint on

November 25, 2020. Pet. App. 520a. The City filed a

motion to intervene on November 27, 2020, which was

granted on December 2, 2020. Petitioner and his cocounsel filed an Amended Complaint on November 29,

2020. On that same date, Petitioner and his co-counsel

filed an “Emergency Motion for Declaratory,

Emergency, and Permanent Injunctive Relief” (the

“Motion for Injunctive Relief”) requesting “decertification of Michigan’s election results[.]” On

December 2, 2020, the City filed its Response to the

Motion for Injunctive Relief (the “Response to Motion

for Injunctive Relief”). Respondent’s Appendix (“Resp.

App.”) 1a. On December 7, 2020, the District Court

issued an Opinion and Order denying the Motion for

Injunctive Relief, finding that injunctive relief was not

warranted because the claims asserted were barred by

Eleventh Amendment immunity, mootness, laches,

abstention doctrine and lack of standing. Pet. App.

169a.

On December 15, 2020, the City served a Rule

11 motion upon Petitioner. Pet. App. 229a. Contrary to

4

Petitioner’s claim that the served Rule 11 motion did

not contain a request for “bar-referral relief[,]” the

served motion indicated that the City would seek an

order “[r]eferring Plaintiffs’ counsel to the State Bar of

Michigan for grievance proceedings[.]” Pet. at 5; Pet.

App. 237a at ¶ i. 1 The served Rule 11 motion

incorporated by reference the City’s earlier-filed

Response to Motion for Injunctive Relief, which

thoroughly described the sanctionable factual

contentions in the Amended Complaint. Resp. App. 7a22a. On January 5, 2021, 21 days after serving the

Rule 11 motion, the City filed the Rule 11 motion. Pet.

App. 239a.

On July 12, 2021, the district court held a sixhour hearing regarding the motions for sanctions,

during which Petitioner and his co-counsel had the

opportunity to respond to the district court’s

questions. On August 25, 2021, the district court

issued a 110-page Opinion and Order sanctioning

Petitioner and his co-counsel under Rule 11, § 1927

and the court’s inherent authority and ordering that

Petitioner pay the City’s reasonable attorney fees. Pet.

1 The motion filed on January 5, 2021, explained that in

addition to relief identified in the motion served on December 15,

2020, the City sought referral to the Michigan state bar

association and the state bar association for each out-of-state

Plaintiffs’ counsel’s home jurisdiction. Compare Pet. App. 237a at

¶ i with Pet. App. 247a at ¶ j. The supplemental disciplinary

action sought in that motion was described in Paragraphs 18-20,

and it was not based upon Rule 11; the motion, as filed, sought

disciplinary referral under Eastern District of Michigan Local

Rule 83.22.

5

App. 65a. On December 2, 2021, the district court

issued an Opinion and Order requiring Petitioner and

his co-counsel to pay $153,285.62 in attorney fees to

the City. Pet. App. 40a.

On December 3, 2021, Petitioner filed a notice

of appeal to the Sixth Circuit. The Sixth Circuit held

oral argument on December 8, 2022. On June 23, 2023,

the Sixth Circuit issued an Opinion upholding in part

and reversing in part the sanctions imposed by the

district court. Pet. App. 1a. The Sixth Circuit upheld

the district court’s award of Rule 11 sanctions, finding

the following misrepresentations of fact and law in

Petitioners’ Amended Complaint:

•

allegations regarding an international

conspiracy to use Dominion voting

machines to commit election fraud were

“entirely baseless[,]” in violation of Rule

11(b)(3). Pet. App. 11a.

•

allegations regarding Michigan’s voting

system wrongly presumed that Michigan

used an “all-in-one system,” rather than

a “hand marked ballot system[,]”

indicating that Petitioner’s pre-filing

inquiry “was patently inadequate.” Pet.

App. 12a-13a.

•

allegations

regarding

supposed

statistical anomalies in the Michigan

election results were based on “facially

unreliable” expert reports. Pet. App. 2a.

6

•

allegations regarding ballot counting at

the TCF Center in Detroit displayed a

“pattern of embellishment to the point of

misrepresentation.” Pet. App. 18a-21a.

•

most of the legal claims asserted in the

complaint were either unwarranted by

law, or based upon frivolous factual

allegations, in violation of Rule 11(b)(2).

Pet. App. 24a-27a.

The Sixth Circuit also upheld the § 1927

sanctions, finding Petitioner’s argument that the case

gained “new life” when “an alternative slate of electors

for Michigan was advanced in early January”

unpersuasive because Petitioner and his co-counsel

did not explain “why any competent attorney would

take [the alternative slate of electors’] self-election

seriously for purposes of persisting in this lawsuit.”

Pet. App. 29a-31a. The Sixth Circuit reversed the

imposition

of

inherent

authority

sanctions,

determining that the district court’s findings

regarding bad faith were based upon speech outside

the courtroom protected under the First Amendment.

Pet. App. 8a-9a.

Petitioner states that “none of the[] bases

[identified by the Sixth Circuit] for upholding

sanctions appeared within Detroit’s served [Rule 11]

motion.” Pet. at 6. Petitioner is incorrect. The City

warned Petitioner that the claim for violation of the

Elections and Electors Clause was frivolous. Pet. App.

7

234a at ¶ 10. The Sixth Circuit found that claim

“legally and factually frivolous.” Pet. App. 26a. The

City warned Petitioner that “controlling law

contradicted the claims.” Pet. App. 234a-235a at ¶ 12.

The Sixth Circuit found that many of the allegations

regarding violations of Michigan election law were

frivolous, because the facts alleged in the complaint

did not amount to a violation of the cited statute. Pet.

App. 21a-22a. The Sixth Circuit held these allegations

violated Rule 11, because “a reasonable prefiling

inquiry as to all these allegations would have included

reading [the statute at issue].” Pet. App. 23a. The City

also referred Petitioner to the City’s Response to

Motion for Injunctive Relief, which detailed many of

the frivolous factual allegations in the complaint. Pet.

App. 235a-236a at ¶ 17. As just one example, the City’s

Response to Motion for Injunctive Relief argued that

the factual allegations regarding Dominion voting

machines were frivolous because they presumed that

Michigan used a ballot marking system that would not

permit hand recounts. Resp. App. 21a-22a; see also,

Pet. App. 525a at ¶ 8 (“The design and features of [sic]

the Dominion software do not permit a simple audit to

reveal its misallocation, redistribution, or deletion of

votes.”). The Sixth Circuit found these allegations

sanctionable because Michigan uses a hand-marked

paper-ballot system, which allows for a recount of

paper ballots, and that Petitioner and his co-counsel

would have been aware of this fact had their pre-filing

inquiry not been “patently inadequate.” Pet. App. 11a-

13a.

8

On August 8, 2023, the Sixth Circuit denied

Petitioner’s request for a rehearing en banc. Pet. App.

202a. On August 11, 2023, the Sixth Circuit issued an

Order staying the mandate to allow Petitioner time to

seek review by this Court. Pet. App. 204a.

REASONS FOR DENYING THE PETITION

I.

The District Court Properly Determined

that Petitioner was Responsible for the

Sanctionable Conduct

Petitioner argues that the district court could

not sanction him under Rule 11 because he did not

sign any of the filings the district court found

sanctionable. But, the district court did not sanction

Petitioner based upon a finding that he signed a

sanctionable filing under Rule 11(b). The district court

sanctioned Petitioner because it found that he was

responsible for the identified violations of Rule 11(b),

under Rule 11(c)(1). 2

Under Rule 11(c)(1), “if…the court determines

2 In the district court, in the Sixth Circuit, and now here,

Petitioner has relied upon irrelevant case law that precedes the

current version of Rule 11. Petitioner cites Pavelic & LeFlore v.

Marvel Ent. Grp., 493 U.S. 120, 126 (1989) for the proposition

that Rule 11 imposes a “personal, nondelegable responsibility”

upon the signer of a document. Pet. At 9. That case was decided

before the 1993 amendments to Rule 11, under which “the court

[may] consider whether other attorneys in the firm, co-counsel,

other law firms, or the party itself should be held accountable for

their part in causing the violation.” 1993 Rule 11 Advisory

Committee Notes.

9

that Rule 11(b) has been violated, the court may

impose an appropriate sanction on any attorney, law

firm, or party that violated the rule or is responsible

for the violation.” (emphasis added). Rule 11

authorizes a district court to impose Rule 11 sanctions

on attorneys who have not signed, filed, submitted or

later advocated a sanctionable filing, if the court

determines that the sanctioned attorneys are

responsible for another attorney’s violation of Rule

11(b).

Here, the district court determined that the

Amended Complaint and Motion for Injunctive Relief

violated Rule 11(b). Pet. App. 114a-159a. And, the

district court found that Petitioner was responsible for

the violation of Rule 11(b). Pet. App. 90a-96a. The

Sixth Circuit determined that this finding, which was

based in part on the district court’s assessment of

Petitioner’s credibility, was not clearly erroneous. Pet.

App. 33a. Petitioner has not identified any reason for

this Court to review the district court’s factual

findings regarding his responsibility for the violations

of Rule 11(b).

II.

The Purported Circuit Split Regarding

Rule 11 Does Not Support Review

A. Petitioner

has

Waived

any

Argument Regarding the Purported

10

Circuit Split

Petitioner urges this Court to grant the Petition

based on a purported split among the Circuits

regarding whether Rule 11(c)(2) requires that a served

Rule 11 motion be absolutely identical to a filed Rule

11 motion. Petitioner has waived any argument

regarding the requirements of Rule 11(c)(2) because

that issue was not raised in the Sixth Circuit. 3 Where

issues were not considered by the Court of Appeals,

this Court will not ordinarily consider them. Meyer v.

Holley, 527 U.S. 280, 291-92 (2003); see also,

Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206,

212-13 (1998) (“Where issues are neither raised before

nor considered by the Court of Appeals, this Court will

not ordinarily consider them.”) (quoting Adickes v.

S.H. Kress & Co., 398 U.S. 144, 147 n. 2 (1970)).

B. The City Complied with the Rule

11(c)(2) “Safe-Harbor” Requirement

Even if Petitioner had preserved arguments

related to Rule 11(c)(2) they would not provide a

meaningful basis to grant the Petition, because the

City complied with the requirements of that Rule.

Under Rule 11(c)(2), before a party can seek

sanctions, “[t]he motion [for sanctions] must be served

3 In the district court, Petitioner argued that the City’s

served Rule 11 motion failed to comply with Rule 11(c)(2) because

it did not include the later-filed brief in support. Petitioner did

not argue that the City failed to comply with Rule 11(c)(2) in the

Sixth Circuit.

11

under Rule 5, but it must not be filed or be presented

to the court if the challenged paper, claim, defense,

contention or denial is withdrawn or appropriately

corrected within 21 days after service or within

another time the court sets.” This is frequently

referred to as the Rule 11 “safe-harbor” requirement.

Petitioner argues that the City of Detroit failed

to comply with the safe-harbor requirement because,

he claims, it served a “letter” rather than a “motion.”

Pet. at 17. Petitioner therefore argues that, if this case

had arisen in a Circuit which requires service of a Rule

11 motion to satisfy Rule 11(c)(2), Detroit’s motion for

Rule 11 sanctions “would have been denied.” Pet. at

16. That argument is meritless.

First, the City served the Rule 11 motion 21

days before it was filed. Pet. App. 229a. The City’s

served Rule 11 motion described the specific conduct

that allegedly violated Rule 11(b). The City alleged in

the December 15, 2020, served motion that Petitioner

violated Rule 11(b)(1) by filing the lawsuit for the

improper purpose of undermining the public’s “faith in

the democratic process and their trust in our

government.” Pet. App. 232a. The City explained that

Petitioner violated Rule 11(b)(2) because the claims

asserted were moot, barred by laches, were contrary to

controlling law and that the Plaintiffs lacked standing

to assert them. Pet. App. 233a-235a. And, the City

explained that Petitioner violated Rule 11(b)(3)

because the factual allegations lacked support, as

explained in the City’s Response to Motion for

12

Injunctive Relief, which was incorporated by

reference. Pet. App. 235a-236a. That Petitioner refers

to the served motion as a “notice” or a “letter” does not

alter these indisputable facts.

Petitioner would have this Court believe that

the served motion was a “7 page bare bones motion[,]”

which “had grown to 10 pages” when it was served.

Pet. At 12. That mischaracterization of the record is

easily resolved by comparing the served motion, found

at Pet. App 337a, with the filed motion, found at Pet.

App 384a. The motion served December 15, 2020,

included 17 paragraphs describing the conduct that

violated Rule 11. The same 17 paragraphs were

included as the first 17 paragraphs of the January 5,

2021, filed motion. The only significant difference

between the served motion and the filed motion was

the addition of three paragraphs at the end of the

motion seeking referrals for disciplinary proceedings,

but those paragraphs were explicitly limited to relief

sought under Eastern District of Michigan Local Rule

83.22—not Rule 11. 4

Second, this case did arise in a Circuit which

4 The distinction between the issues related to Rule 11

and those related to Local Rule 83.22 was clearly set forth in the

titles of the motions. The served motion referred to Rule 11

sanctions only, the filed motion, which was not limited to Rule 11,

was entitled “The City of Detroit’s Motion for Sanctions, For

Disciplinary Action, for Disbarment Referral, and for Referral to

State Bar Disciplinary Bodies.”

13

requires service of a Rule 11 motion to satisfy Rule

11(c)(2). Penn, LLC v. Prosper Bus. Dev. Corp., 773

F.3d 765, 767 (6th Cir. 2014) (holding that Rule

11(c)(2) requires service of a motion and noting that

“the word ‘motion’ [in Rule 11(c)(2)] definitionally

excludes warning letters[.]”). If this court wants to

address a Circuit split regarding application of the

Rule 11 safe harbor in the contest of inadequate notice,

this is simply the wrong case—notice is required in the

Sixth Circuit and it was provided by the City.

C. The Purported Circuit Split Does

Not Support Review

Notwithstanding his failure to address Rule

11(c)(2) in the Sixth Circuit, Petitioner urges this

Court to grant the Petition to resolve a split between

the Circuits regarding what, exactly, constitutes a

“motion” under Rule 11(c)(2). Two of the four Circuits

that have addressed this issue have applied the safeharbor requirement in accordance with the plain text

of Rule 11(c)(2), requiring that a motion for Rule 11

sanctions, which need not include an accompanying

brief, must be served at least 21 days prior to filing.

See Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy

& Sauce Factory, Ltd., 682 F.3d 170, 176 (2d Cir. 2012)

(holding that party seeking Rule 11 sanctions “met the

procedural requirements of…Rule 11(c)(2) by serving

its notice of motion for Rule 11 sanctions with its

January 9, 2008 letter, even though it did not serve at

that time supporting affidavits or a memorandum of

law.”); Burbidge Mitchell & Gross v. Peters, 622 F.

14

Appx. 749, 757 (10th Cir. 2015) (“We thus join the

Second Circuit in declining ‘to read into the rule a

requirement that a motion served for purposes of the

safe-harbor period must include supporting papers

such as a memorandum of law and exhibits.’”) (citing

Star Mark Mgmt., Inc., 682 F.3d at 176). 5

Two Circuits have interpreted the Rule 11(c)(2)

safe-harbor requirement differently. The Fifth Circuit

requires that the served motion be identical in every

respect to the filed motion, including an attached brief

in support and any exhibits. Uptown Grill, LLC v.

Camellia Grill Holdings, Inc., 46 F.4th 374, 388-89

(2022). The Seventh Circuit permits warning letters to

satisfy the safe-harbor requirement, in substantial

compliance with Rule 11(c)(2). Nisenbaum v.

Milwaukee Cnty., 333 F.3d 804, 808 (7th Cir. 2003). 6

This minor variation in the application of Rule

11(c)(2) does not require this Court’s attention.

5 Petitioner argues that the Tenth Circuit requires that a

served Rule 11 motion be absolutely identical to a filed Rule 11

motion, including a supporting brief and any exhibits, citing Roth

v. Green, 466 F.3d 1179, 1192 (10th Cir. 2006). Pet. at 11.

Petitioner misconstrues the Tenth Circuit’s holding in Roth. The

issue in Roth was whether service of a warning letter, as opposed

to a Rule 11 motion, satisfied the safe harbor requirement. Id. at

1191-92. The Tenth Circuit held that service of a warning letter

does not comply with Rule 11(c)(2), because the subrule requires

service of a motion. Id. at 1192. The Tenth Circuit did not hold

that the served Rule 11 motion must be identical in all respects

to the filed motion, including a supporting brief and all exhibits.

6 Petitioner claims that the Federal Circuit also applies

the “substantial compliance” standard, but does not support that

statement with citation to any authority. Pet. at 7.

15

Rather, this issue should be allowed to develop in the

Circuits. Only four Circuits have taken a position on

what, exactly, a party must serve to satisfy the safeharbor requirement. The Fifth Circuit’s unique

identicality requirement is only a year-and-a-half old.

Additionally, the Seventh Circuit may reconsider its

outlying holding in Nisenbaum and join the majority

of Circuits in requiring a party to serve a motion to

start the safe-harbor clock. 7 See McGreal v. Village of

Orland Park, 928 F.3d 556, 559 (7th Cir. 2019) (noting

that the Seventh Circuit is the sole Circuit to adopt the

“substantial compliance” approach and that “other

circuits have…criticized our analysis [in Nisenbaum]

as cursory and atextual.”).

Intervention by this Court is not required to

resolve any uncertainty regarding Rule 11(c)(2). In

every Circuit, a party is required to warn the opposing

party that it intends to seek Rule 11 sanctions at least

21 days before filing a motion seeking those sanctions.

A party receiving such notice has the opportunity to

consider the merits of the challenged pleading and to

withdraw that pleading to avoid potential sanctions.

Petitioner was given that opportunity and preferred to

continue to advance the false narrative about a stolen

While the question of what, exactly, constitutes a

“motion” under Rule 11(c)(2) has been addressed only by the

Second, Fifth and Tenth Circuits, a clear majority of the Circuits

require service of a motion to satisfy the safe harbor requirement.

See Penn, LLC, 773 F.3d at 768 (noting that the Second, Third,

Fourth, Fifth, Sixth, Eighth, Ninth and Tenth Circuits all require

service of a Rule 11 motion.).

7

16

election rather than to avail himself of the safe harbor

he had been offered.

III.

Petitioner’s Arguments Regarding Bar

Referral Relief are Moot

On July 4, 2023, Petitioner permanently and

irrevocably surrendered his law license in response to

disciplinary proceedings brought by the Office of the

General Counsel of the State Bar of Georgia. See

Jacqueline Thomsen, Lawyer who challenged Trump

loss retires amid disciplinary probes, REUTERS (July 5,

2023),

available

at

https://www.reuters.com/legal/legalindustry/lawyerwho-challenged-trump-loss-retires-amid-disciplinaryprobes-2023-07-05/ Accordingly, Petitioner’s claim

that the district court erred in referring him to bar

authorities for investigation is now moot.

CONCLUSION

The Court should DENY Petitioner’s Request

for the Writ of Certiorari.

Respectfully submitted,

DAVID H. FINK*

*Counsel of Record

FINK BRESSACK

David H. Fink

Nathan J. Fink

Philip D.W. Miller

David A. Bergh

17

645 Griswold St., Suite 1717

Detroit, MI 48226

(248) 971-2500

dfink@finkbressack.com

nfink@finkbressack.com

pmiller@finkbressack.com

dbergh@finkbressack.com

January 17, 2024

CITY OF DETROIT LAW

DEPARTMENT

Conrad L. Mallet, Jr.

2 Woodward Ave., Suite 500

Detroit, MI 48226

(313) 224-4550

conrad.mallett@detroitmi.gov

Counsel for Respondent City of

Detroit

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

City of Detroit’s Resp. to Pls.’ Emergency Mot.

for Declaratory, Emergency, and Permanent

Injunctive Relief ...............................................

1a

1a

APPENDIX

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,

v.

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.

No. 2:20-cv-13134

Hon. Linda V. Parker

RESPONSE TO PLAINTIFFS’ EMERGENCY

MOTION FOR DECLARATORY, EMERGENCY,

AND PERMANENT INJUNCTIVE RELIEF

The City of Detroit (the “City”) respectfully submits

this Response to Plaintiffs’ Emergency Motion for

Declaratory, Emergency and Permanent Injunctive

Relief.

2a

[Tables of Contents and Authorities omitted]

STATEMENT OF THE ISSUES PRESENTED

I.

Should Plaintiffs’ Motion be denied because

Plaintiffs do not have standing?

The City answers: “Yes.”

II.

Should Plaintiffs’ Motion be denied under

abstention principles?

The City answers: “Yes.”

III.

Should Plaintiffs’ Motion be denied based

on laches?

The City answers: “Yes.”

IV.

Should Plaintiffs’ Motion be denied because

Plaintiffs cannot meet the standards for

injunctive relief?

The City answers “Yes”

CONTROLLING OR MOST APPROPRIATE

AUTHORITIES

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

Burford v. Sun Oil Co., 319 U.S. 315 (1943)

Colorado River Water Conservation District v. United

States, 424 U.S. 800 (1976)

3a

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)

Railroad Commission of Texas v. Pullman Co., 312

U.S. 496 (1941)

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

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

4a

U.S. attorneys and FBI agents have been working to

follow up specific complaints and information they’ve

received, but to date, we have not seen fraud on a scale

that could have effected a different outcome in the

election.

There’s been one assertion that would be systemic

fraud and that would be the claim that machines were

programmed essentially to skew the election results.

And the DHS and DOJ have looked into that, and so

far, we haven’t seen anything to substantiate that

– U.S. Attorney General William Barr, statement

to the Associated Press1

INTRODUCTION

This is the lawsuit that one-time Trump legal team

member Sidney Powell has been promising would be

“biblical.” Perhaps, plaintiffs should have consulted

with Proverbs 14:5, which teaches that “a faithful

witness does not lie, but a false witness breathes out

lies.”

Few lawsuits breathe more lies than this one. The

allegations are little more than fevered rantings of

conspiracy theorists built on the work of other

conspiracy theorists. Plaintiffs rely on affidavits of socalled “experts”—really confidence men who spread lie

after lie under cover of academic credential— which

misstate obviously false statistics. These “experts” use

academic jargon as if that could transmute their

1

https://apnews.com/article/election-2020-joe-bidendonaldtrump-electionswilliam-barrb1f1488796c9a98c4b1a9061a6c7f49d?cid=ed_npd_bn_

tw_bn.

5a

claims from conspiracy theory to legal theory. The key

“factual” allegations from the supposed fact witnesses,

some of whom attempt to cloak their identities while

attacking democracy, have been debunked.

The allegations about supposed fraud in the

processing and tabulation of absentee ballots by the

City of Detroit at the TCF Center have been rejected

by every court which has considered them. The claims

were rejected in Stoddard v. City Election Commission

of the City of Detroit, Wayne County Circuit Court

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

2020), from which no appeal has been filed. The claims

were rejected by the Michigan Court of Claims in

Donald J. Trump for President Inc. v. Benson, Mich.

Court of Claims Case No. 20-000225- MZ, Opinion and

Order (Nov. 5, 2020) (Ex. 1). The campaign waited

until December 1, 2020 to file a brief in support of its

application for leave to appeal to the Michigan Court

of Appeals. And, importantly, the claims were tested

and found wanting in Costantino v. Detroit et al,

Wayne County Circuit Case No. 20-014780-AW, in an

Opinion and Order entered by Chief Judge Timothy M.

Kenny on Nov. 13, 2020. The Complaint in this lawsuit

explicitly relies on the same allegations as those made

in the Costantino matter, but fails to advise this Court

that those claims were rejected in that case, with

Plaintiffs’ applications to the Michigan Court of

Appeals and Michigan Supreme Court being

expeditiously denied. See Costantino v. Detroit, Mich

COA Case No. 355443, Order (Nov 16, 2020) (Ex. 2);

Costantino v Detroit, No. 162245, 2020 WL 6882586,

at *1 (Mich, Nov 23, 2020) (Ex. 3).

If any of the claims in this lawsuit had merit,

that would have been demonstrated in those cases. If

any of the conspiracy theories in this case had merit,

6a

they would have been brought in those cases or by the

Trump campaign. Donald J Trump for President Inc.

would have pushed the claims in the lawsuit it filed in

the Western District of Michigan on November 11,

2020, rather than voluntarily dismissing the case

under Fed. R. Civ. P. 41(a)(1)(A) on November 18,

2020, after being served with a Motion to Dismiss and

concurrences. See Donald J. Trump for President Inc.

v. Benson, WD Mich. Case No. 1:20-cv-1083. Or the

Trump campaign would have pursued the claims in

the Michigan Court of Claims in the lawsuit they filed

on November 4, 2020, supra. But, even the Trump

campaign lawsuits have avoided the off-the-wall

claims included this lawsuit, with the campaign

famously attempting to distance itself from Sidney

Powell and this lawsuit (after a press event

highlighting Ms. Powell as part of the “super-team”).

It is difficult to know whether Plaintiffs and their

counsel actually believe any of the ridiculous claims

they allege or whether this entire lawsuit is designed

solely as a fundraising exercise, a talking point,

something they can use to bolster their imaginary

claims of widespread voter fraud. But, the fact that the

Complaint is frivolous, does not mean that this lawsuit

is not dangerous to our democracy. Plaintiffs seek

nothing less than a court-ordered coup d’état. They,

quite literally, ask that the results for the selection of

Michigan’s Presidential electors in the November 3,

2020 election “be set aside.”

If Plaintiffs actually believed they were making

legitimate claims, they would have filed their motions

months, or years ago. After all, the globe-spanning

conspiracy claims regarding Dominion supposedly go

back for years. But no lawsuit was filed related to the

2016 lawsuit, when Donald Trump won by narrow

7a

margins in Michigan, Georgia and Wisconsin. Instead,

Plaintiffs waited almost a full month after the 2020

election was held to file this “lawsuit.” Then, they

waited days before bothering to serve the Complaint

and file their so-called “emergency” Motion. They were

likely waiting to file a remarkably similar Motion in

Georgia, with the same “experts” making the same

specious arguments. Unsurprisingly, the case they

filed in Wisconsin also finds a way to challenge enough

votes to overcome Trump’s deficit there.

Descending even farther into conspiracy theory does

not—and cannot— change the outcome. The law is the

law. Plaintiffs do not have standing. This lawsuit is

barred by laches. This lawsuit is barred by abstention

doctrines. And, the facts are the facts. Numerous

public servants and journalists have started the

process of debunking the hundreds of pages of

nonsense in Plaintiffs’ Complaint, Motion and

Exhibits. It would take far more pages than allowed by

the Local Rules to include all of the information

disproving Plaintiffs’ claims, but some of the

highlights are identified in the following Statement of

Facts.

STATEMENT OF FACTS

A. Plaintiffs’ Allegations Relating to Supposed

Electoral Fraud in Detroit Have Been

Rejected by the Michigan Courts Which Have

Addressed Them

1. Republican Challengers

Plaintiffs repeatedly assert that Republican

challengers were not given “meaningful” access to the

ballot processing and tabulation at the Absent Voter

8a

Counting Board located in Hall E of the TCF Center.

Nearly all of Plaintiffs’ requested relief is predicated

on this claim. The theory is that if certain challengers

were not in the TCF Center, the ballots counted there

should be deemed “unlawfully cast,” somehow in

violation of Plaintiffs’ constitutional rights. The legal

theory is nonsensical. But it is also important to note

that the underlying claim is false.

Challengers are allocated one per respective party

or organization to each counting board. The only

challenger right specifically listed with respect to

absent voter ballots is to observe the recording of

absentee ballots on voting machines. M.C.L. §

168.733(1)(e)(i) (“A challenger may do 1 or more of the

following: … Observe the recording of absent voter

ballots on voting machines.”) This requirement was

met at all times.

In Costantino, the City submitted an affidavit and

supplemental affidavit from Christopher Thomas

disproving plaintiffs’ claims. Because so many of the

claims in this lawsuit are duplicative of the claims in

that lawsuit, the City is attaching to this brief, the

affidavits submitted by Mr. Thomas in state court.

(Ex. 4 and 5). Mr. Thomas’s knowledge of Michigan

election law is unparalleled; he served in the Secretary

of State Bureau of Election for 40 years beginning in

May 1977 and finishing in June 2017. (Thomas Aff. ¶

1, Ex. 4). In June 1981, he was appointed Director of

Elections and in that capacity implemented four

Secretaries of State election administration, campaign

finance and lobbyist disclosure programs. (Id.). Mr.

Thomas was brought in to serve as Senior Advisor

to Detroit City Clerk Janice Winfrey beginning on

September 3, 2020 until December 12, 2020. (Id. ¶ 2).

In this capacity, he advised the Clerk and

9a

management staff on election law procedures,

implementation of recently enacted legislation,

revamped absent voter counting board, satellite offices

and drop boxes, Bureau of Election matters and

general preparation for the November 3, 2020 General

Election. (Id.). Mr. Thomas had oversight and was

involved in nearly all aspects of the election in the City,

including the processing and tabulation at the TCF

Center. (Id.).

As Mr. Thomas attested, while six feet of separation

was necessary for health reasons, the Department of

Elections at some expense, provided large monitors

(photo attached to Mr. Thomas’ affidavit) to keep the

inspectors safe and provide the challengers with a

view of what was being entered, without crossing the

6-foot distancing barrier. (Thomas Aff. ¶ 14, Ex. 4).

The monitors made observing the process very

transparent. (Id.).

When it became clear that the number of

challengers had reached or exceeded the lawful quota

and the room had become over-crowded, for a short

period of time, additional challengers were not

admitted until challengers from their respective

parties voluntarily departed. This is affirmed by

Christopher Thomas and others. (Thomas Aff., ¶¶ 3235 Ex. 4; see also Garcia Aff., Ex. 6).

Plaintiffs also claim that election workers at the

TCF Center did not record certain challenges.

Apparently, Plaintiffs are asserting that any

“challenge” that someone makes up must be recorded.

However, challengers’ rights and responsibilities are

subject to the law. At a polling place, a challenger

can challenge “the voting rights of a person who the

challenger has good reason to believe is not a

registered elector.” M.C.L. § 168.733. Under a

10a

separate section, at a polling place, a qualified

challenger may question “the right of an individual

attempting to vote who has previously applied for an

absent voter ballot and who on election day is claiming

to have never received the absent voter ballot or to

have lost or destroyed the absent voter ballot.” M.C.L.

§ 168.727. In that situation, an election inspector is to

make a report about the challenge. The statute further

provides that:

A challenger shall not make a challenge

indiscriminately and without good cause. A

challenger shall not handle the poll books

while observing election procedures or the

ballots during the counting of the ballots. A

challenger shall not interfere with or unduly

delay the work of the election inspectors. An

individual who challenges a qualified and

registered elector of a voting precinct for the

purpose of annoying or delaying voters is

guilty of a misdemeanor.

M.C.L. § 168.727.

Plaintiffs provide little detail of the so-called

challenges which were “disregarded.” But, as

Christopher Thomas attests, he is not aware of any

valid challenge being refused or ignored. (Thomas Aff

¶ 39, Ex. 4). All election workers were instructed to

record valid challenges. What election workers did

not need to record were the numerous frivolous and

legally invalid challenges which were made.

Republican making wholesale challenges based on

complete misunderstandings of law. (Id. ¶ 39).

Challengers were congregating in large groups

standing in the main aisles and blocking Election

Inspectors’ movement. (Id. ¶ 35). In one instance,

challengers exhibited disorderly behavior by

11a

chanting “Stop the Vote.” (Id.). Yelling “Stop the

vote” or all absent ballots are invalid are not

legitimate challenges and there was no requirement

that they be record. That was an abuse of the process

and a violation of the law.

2.

Allegations of “Pre-Dating”

Plaintiffs’ allegations of “pre-dating” are based on

the affidavits of Jessica Connarn and Jessy Jacob

initially submitted in the Costantino Complaint. (First

Amended Complaint (“FAC”) ¶¶ 88 and 90). These

claims have been thoroughly debunked. Ms. Connarn’s

claims were addressed by the Michigan Court of

Claims which held:

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 fraudulent

activity in order to count invalid absent voter

ballots that were received after election day.

This “supplemental evidence” is inadmissible

12a

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.

(See Ex. 7).

The reliance on the “pre-dating” allegations in the

Costantino matter is misplaced. Those allegations

were made by Jessy Jacob, a furloughed City

employee, with no known prior election experience,

who was given a limited assigned to the Department

of Elections on a short-term basis. (Ex. 8, Affidavit of

Daniel Baxter, ¶ 7). Her claim appears to have been

based on flawed semantics, because all absentee

ballots she handled at the TCF Center had been

received by 8:00 p.m. on November 3, 2020. The ballots

had all been painstakingly verified by City employees

(in a public process) before they were brought to the

13a

TCF Center for tabulation. No ballots were backdated;

instead, for a small number of ballots, election workers

at the TCF Center were directed to enter the date

received into the computer system, as stamped on the

envelope. Ms. Jacob was simply marking the date the

ballot had been received. (Thomas Aff ¶¶ 12, 20). All

dates on the envelopes were on or before November 3,

2020; no ballots received by the Detroit City Clerk

after 8:00 p.m. on November 3, 2020 were even

brought to the TCF Center. (Id. ¶¶ 20, 27). Absentee

ballots were not “backdated” in the Qualified Voter

File; they were properly “dated” in the system, based

upon time stamps on the ballot envelopes. The court

in Costantino agreed, holding:

Ms. Jacob also alleges misconduct and fraud

when she worked at the TCF Center. She

claims supervisors directed her not to

compare signatures on the ballot envelopes

she was processing to determine whether or

not they were eligible voters. She also states

that supervisors directed her to “pre-date”

absentee ballots received at the TCF Center

on November 4, 2020. Ms. Jacob ascribes a

sinister motive for these directives. Evidence

offered by long-time State Elections Director

Christopher Thomas, however, reveals there

was no need for comparison of signatures at

the TCF Center because eligibility had been

reviewed and determined at the Detroit

Election Headquarters on West Grand Blvd.

Ms. Jacob was directed not to search for or

compare signatures because the task had

already been performed by other Detroit city

clerks at a previous location in compliance

with MCL 168.765a. As to the allegation of

"pre-dating" ballots, Mr. Thomas explains

14a

that this action completed a data field

inadvertently left blank during the initial

absentee ballot verification process. Thomas

Affidavit, #12. The entries reflected the date

the City received the absentee ballot. Id.

(See Ex. 9, Opinion and Order of Wayne County

Circuit Order). Notably, prior to the filing of these

lawsuits, Ms. Jacob did not report any of the issues

addressed in her affidavit to any of her supervisors.

(See Ex. 8, Baxter Affidavit, ¶ 16).

It was physically impossible for any election worker

at the TCF Center to have counted or processed a

ballot for someone who was not an eligible voter or

whose ballot was not received by the 8:00 p.m.

deadline on November 3, 2020. No ballot could have

been “backdated,” because no ballot received after 8:00

p.m. on November 3, 2020 was ever at the TCF Center.

(Ex. 4, Thomas Aff., ¶¶ 19- 20).

3.

Allegations Regarding Ballot Duplication

Plaintiffs allege that the ballot duplication process

was not followed. As Mr. Thomas attested, ballots

were duplicated according to Michigan law. Contrary

to Plaintiffs’ assertion, Michigan election law does

not require partisan challengers to be present

when a ballot is duplicated; instead, when a ballot is

duplicated as a result of a “false read,” the duplication

is overseen by one Republican and one Democratic

inspector coordinating together. That process was

followed. (Thomas Aff., ¶ 31). And, again, partisan

challengers were at the TCF Center during the entire

process. As the Wayne County Circuit Court held in

the Stoddard matter:

An affidavit supplied by Lawrence Garcia,

Corporation Counsel for the City of Detroit,

15a

indicated he was present throughout the time

of the counting of absentee 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.

(Ex. 10, Opinion and Order).

4. Allegations Regarding Ballots Supposedly

Counted More than Once

Plaintiffs claim challengers observed ballots

repeatedly run through tabulation machines,

including “a stack of about fifty ballots being fed

multiple times into a ballot scanner counting

machine.” (FAC ¶ 94). This same claim was made by

Melissa Carone, a contractor working for Dominion,

who claimed that stacks of 50 ballots were fed through

tabulators as many as eight times. (Exh. 5 to FAC,

¶¶4-5). Whatever the challengers and Ms. Carone

think they saw, ballots cannot be counted in that

manner. If they were correct, hundreds of extra votes

would show up in numerous precinct (or absent voter

counting boards). This would obviously be caught very

quickly on site. (Ex. 5, Thomas Supp. Aff). What the

challengers and Ms. Carone claim they saw would also

be caught by the Detroit Department of Elections and

16a

the County Canvassing Board during the canvassing

which occurs after every election as a matter of law.

(Id.). While precincts are often off by a few votes at the

end of the process due to human error, the result of

repeatedly scanning ballots would lead to precincts

being off by hundreds or thousands of votes.

Plaintiffs also note that challengers reported that

“when a voter was not in the poll book, the election

officials would enter a new record for that voter with a

birth date of January 1, 1900.” (FAC ¶¶ 14, 85, 190 &

191). This claim is actually true, but not evidence of

anything improper. As Christopher Thomas attested,

and as was explained to Republican challengers on

Wednesday, November 4, 2020, the Detroit counting

boards were using the Secretary of State e-pollbook,

comprised of a downloaded instance (i.e. snapshot) of

the Qualified Voter File (“QVF”) as it existed late

afternoon on Sunday, November 1. (Thomas Aff. ¶ 7,

Ex. 4). Since the e- pollbook had not been specifically

modified for the AVCB environment, procedural

adjustments were required to record ballots. (Id. ¶ 15).

Specifically, to add a voter in the e-pollbook (or “EPB”),

the voter’s birthdate needs to be entered. (Id.). This

is not a legal requirement, but essentially a quirk in

the design of the software. (Id.). In a polling place,

where e- pollbook is designed to work, provisional

ballots are entered into the e-pollbook manually by

inspectors. (Id.). The voter as part of the provisional

ballot process completes a new voter registration

application which contains a birthdate. (Id.). In that

situation, at a polling place, the date of birth is a data

point used to verify the voter. (Id.). Thus, the system

includes a tab for birthdates. (Id.). At an AVCB, the

inspectors do not have access to a voter’s date of birth;

moreover, there is no need for that data point to be

included, because the voter’s signature is the data

17a

point used for verification purposes. (Id.).

Nevertheless, to process the vote, the e-pollbook

requires the date of birth data field to be filled out.

(Id.). Thus, inspectors were directed to enter the

consistent date of birth of January 1, 1900. (Id.). The

use of January 1, 1900 as a substitute for an actual

date of birth is a standard practice by election clerks.

(Id.). The Republican challengers who questioned the

process were satisfied with the explanation and did

not lodge (what would have been an obviously

frivolous) challenge. (Id. ¶ 16). Nevertheless, that

claim is raised repeatedly as evidence of “fraud” in this

case and others.

5. Allegations

Machines

Regarding

Tabulating

Perhaps the most baseless of Plaintiffs’ allegations

is a conspiracy theory about vote tabulators. Plaintiffs

cite two instances of errors— one in Antrim County

and one in Oakland County (Rochester Hills) to

insinuate that the tabulating system used in many

counties was flawed. The warped logic: because there

was an isolated error in Antrim County which uses

the same software as Wayne County, and an isolated

error in Rochester Hills, which does not use the same

software, the votes in Detroit must be thrown out.

The Michigan Department of State released a

statement titled “Isolated User Error in Antrim

County Does Not Affect Election Results, Has no

Impact on Other Counties or States,” explaining what

happened in Antrim County. (Ex. 11). The statement

explains that the “error in reporting unofficial results

in Antrim County Michigan was the result of a user

error that was quickly identified and corrected; did not

affect the way ballots were actually tabulated; and

would have been identified in the county canvass

18a

before official results were reported even if it had not

been identified earlier.” (Id.). Essentially, the County

installed an update on certain tabulators, but not

others. (Id.). The tabulators worked correctly, but

when they communicated back to the County, the

discrepancy in the software versions led to a

discrepancy in the reporting. (Id.). This was quickly

discovered and would certainly have been uncovered

in the post- election canvass. (Id.).

The Republican clerk of Rochester County, Tina

Barton, discredited the allegations of fraud in that

City. Officials realized they had mistakenly counted

votes from the city of Rochester Hills twice, according

to the Michigan Department of State. Oakland County

used software from a company called Hart InterCivic,

not Dominion, though the software was not at fault.

Ms. Barton stated in a video she posted online: “As a

Republican, I am disturbed that this is intentionally

being mischaracterized to undermine the election

process…. This was an isolated mistake that was

2

quickly rectified.”

B. Plaintiffs’

“Expert”

Woefully Deficient

Analyses

are

Plaintiffs rely on “experts” to amplify their factual

allegations and create their grand conspiracy.

Essentially, the “experts” attempt to provide cover for

the lie that there was somehow fraud in Detroit,

accounting for hundreds of thousands of “extra” votes

(even though there were slightly less votes in Detroit

in 2020 than there were in 2016). Of course, to the

2

https://www.bridgemi.com/michigan-government/gopcalls- michigan- election-probe-officials-say-theirclaims-are-weak.

19a

extent those “experts” are relying on “facts” which are

not true or are misinterpreting those facts, their

analysis is of no value to this Court.

Plaintiffs’ “experts” pepper their reports with

speculation, innuendo and “facts” which are simply

not true. Plaintiffs’ “expert” Russell James Ramsland

Jr., an unsuccessful Republican candidate for

Congress in 2016, is particularly reckless with the

facts.

He

extrapolates

extraordinary

vote

discrepancies from the well- publicized Antrim

County error in reporting early unofficial results. In

doing so, he either intentionally ignores the Secretary

of State’s report or simply does not do his homework.

In his November 24, 2020 affidavit, appended as

Exhibit 24 of the First Amended Complaint, he reports

“In Michigan we have seen reports of 6,000 votes in

Antrim County that were switched from Donald

Trump to Joe Biden and were only discoverable

through a hand counted manual recount.” (Ramsland

Affidavit ¶10; emphasis added). With the slightest due

diligence any actual expert would know that there

were no hand recounts in Michigan as of that date.3

Equally troubling, the logical explanation by the

Secretary of State, released more than two weeks

before this affidavit was prepared and which is

discussed in the Amended Complaint, is not even

discussed. Presumably, this “expert” did not bother to

inquire once he had a conspiracy theory to run with.

3

Plaintiffs, who include three nominees to be

Trump electors, the Republican County Chair for

Antrim County, the Republican County Chair of

Oceana County and the Chair of the Wayne County

Eleventh Congressional District, as well as their

attorneys, should also know that there was no hand

20a

recount in Antrim County.

Similarly, Mr. Ramsland, who is referenced 23 times

in the Amended Complaint, explicitly relies upon the

affidavit of Melissa Carone in support of his claim that

“ballots can be run through again effectively

duplicating them.” (Ramsland Affidavit; FAC Exh. 24

at ¶13). It is understandable that inexperienced

challengers and Ms. Carone (who is a service

contractor with no election experience) might not

understand that there are safeguards in place to

prevent double counting of ballots in this way, but that

does not excuse Plaintiffs’ “experts,” who choose to rely

on these false claims.

Dr. Eric Quinnell (misspelled as Quinell throughout

the Amended Complaint) offers a creative, but

pointless, “expert” analysis, which can be summarized

as follows: “it’s surprising that Joe Biden did so much

better than Donald Trump in some places.” Dr.

Quinnell posits that he should be able to predict what

voters will do, and because they did not do what he

expected he has encountered results that he calls

“incredibly mathematically anomalous.” He compares

results from 2016 and 2020, and when President

Trump does not keep all of his 2016 voters, Dr.

Quinnell interprets that to mean that more than 100%

of new voters voted for President-Elect Biden. While

academically interesting and perhaps amusing for a

cocktail party analysis, there is absolutely no legal

significance to his “analysis.”

William Briggs offers some charts and predictions,

based upon surveys. But, again, not a shred of

evidence of voter fraud is even purportedly found in

his brief report. And, much of his “analysis” is based

upon a telephone survey by Matt Braynard, in which

21a

Braynard tries to extrapolate the results of that

survey to establish proof of voter fraud. Of course, no

such survey could establish the legal elements of

fraud. But, here, there is not even an attempt to make

the process look scientific. We are not told about

survey methods, the skills of the interviewers, or even

Mr. Braynard’s expert credentials. Dr. Quinnell

admits in his executive summary that “a team of

unpaid citizen volunteer(s)” collaborated in a

statistical analysis vote analysis. (FAC, Exh. 22) .

Emblematic of Plaintiffs’ carelessness with the facts

is another “expert” report that was so weak that after

last week’s filing of the Complaint he was outed in

public news media reports, apparently leading to his

deletion from the Amended Complaint. Paragraph 18

of the original Complaint introduced “Expert Navid

Kashaverez-Nia” and alleged that “[h]e concludes that

hundreds of thousands of votes that were cast for

President Trump in the 2020 general election were

transferred to former Vice-President Biden.” Notably,

the “expert” report relied on a finding that in “Edison

County, MI, Vice President Biden received more than

100% of the votes…” The fact that there is no Edison

County in Michigan (or anywhere in the United

States) was not only was missed by this “expert,” its

inclusion in a nine page report was also was not

noticed by any of the Plaintiffs or their counsel—that

is, not until it became a public embarrassment when

it was reported by the press.

C. Allegations Regarding Dominion

Plaintiffs, with either no experience with Michigan

election law, or no interest in being candid with this

Court, weave a fantastical tale about how a theoretical

22a

software weakness could upend Michigan’s election

results. The fundamental problems with their

analyses are: not a shred of evidence suggests a single

vote was not counted in Michigan; and; any problem

with vote counts could be addressed by a hand recount

in this State that preserves the paper ballots that are

scanned by the tabulating machines.

So, even if everything in the Amended Complaint

about the theoretical possibility that Dominion

equipment could be compromised were true (it is not)

the preservation of paper ballots would allow the vote

count to be tested. Here, however, Plaintiffs and their

counsel want to cast doubt upon the integrity of our

elections, not correct any errors in the vote count. If

the Trump campaign took these allegations seriously,

they would have sought a recount. But, the time to

demand a recount has passed, and nobody seriously

thought that a recount would change a 154,000 vote

win for President-Elect Joe Biden.

The Plaintiffs’ claims regarding Dominion are so

detached from reality that the Trump campaign and

Rudy Giuliani have publicly distanced themselves

from Plaintiffs’ counsel and have literally disavowed

her involvement on their legal team. And, as noted

above, Attorney General Bill Barr yesterday

announced that neither the Department of Homeland

Security nor the Department of Justice could find any

evidence to support these wild allegations. Rather

than respond point by point to these strange claims,

the City attached a detailed, public response released

by Dominion Voting Systems on November 26, 2020.

(Ex. 12).

ARGUMENT

II. Applicable Legal Standards

23a

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.” Id.

Claims that are “conceivable” or “possible,” but not

plausible, 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.

HCA- Healthcare 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).

III. The Motion Should be Denied Because

Plaintiffs Do Not Have Standing to Pursue

this Lawsuit

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

24a

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 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.

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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., FAC ¶ 180. Plaintiffs do

not allege that their ballots were not counted or that

they were 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,

other courts have held that neither citizens, nor electors,

nor candidates themselves have standing under the clause.

See, e.g., Bognet v. Secretary Commonwealth of

Pennsylvania, ---F3d.----, 2020 WL 668120 (3rd Cir., Nov.

13, 2020); Hotze v. Hollins, No. 4:20-CV- 03709, 2020 WL

6437668 at *2 (S.D. Tex., Nov. 2, 2020); L. Lin Wood,

Jr. v Raffensperger, No. 1:20-CV- 04651-SDG, 2020

WL 6817513, at *5 (N.D. Ga., Nov. 20, 2020).

Additionally, these particular Plaintiffs do not have

26a

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, 2020 WL

6686120, at *7 (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 FAC ¶¶ 118-192, 206, 211, 213228. 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 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

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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).

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 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.

IV. This Motion Should be Denied Because this

Case Should be Dismissed Under Abstention

Principles

28a

A. This Court Should Abstain Under the InterRelated Colorado River , Pullman and Burford

Doctrines

The Colorado River doctrine counsels deference to

parallel state court proceedings. Colorado River Water

Conservation District v. United States, 424 U.S. 800

(1976).. The related Pullman abstention doctrine “is

built upon the traditional avoidance of unnecessary

constitutional decisions and the sovereign respect due

to state courts.” Gottfried v. Med. Planning Servs.,

Inc., 142 F.3d 326, 331 (6th Cir. 1998) (citing Railroad

Commission of Texas v. Pullman Co., 312 U.S. 496,

500–01 (1941). Abstention is appropriate “when the state-

law questions have concerned matters peculiarly within the

province of the local courts, we have inclined toward

abstention.” Harris Cty. Comm'rs Court v. Moore, 420 U.S.

77, 83–84 (1975). Indeed, “[w]here there is an action

pending in state court that will likely resolve the state-law

questions underlying the federal claim, [the Supreme Court

has] regularly ordered abstention.” Id. at 84 (1975).

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 the City of Detroit, and,

primarily the processing and tabulation of absentee

ballots at the TCF Center. See, e.g., FAC ¶¶ 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

29a

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. Each and every one

of those allegations is false. But, the one thing they all

have in common is that they are based entirely on the

claims raised in cases 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.4

All of Plaintiffs’ claims (frivolous as they may be) are

being 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 worth 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,

4

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.

30a

which is the proper court to see them through to their

inevitable dismissal with prejudice.5

Abstention is also warranted under Burford

abstention doctrine, which “requires a federal court to

abstain from jurisdiction where to assume jurisdiction

would ‘be disruptive of state efforts to establish a

coherent policy with respect to a matter of substantial

public concern.’” Adrian Energy Assocs. v. Michigan

Pub. Serv. Comm'n, 481 F.3d 414, 423 (6th Cir. 2007)

(referencing Burford v. SunOil Co., 319 U.S. 315 (1943).

The doctrine applies where the lawsuit could result in a

“potential disruption of a state administrative scheme.” Id.,

481 F.3d at 423. Here, the relief Plaintiffs seek would lead

to an unprecedented disruption of Michigan election law.

The claims were also brought in Donald J. Trump

for President, Inc. v. Benson, Mich. Court of Claims

Case No. 20- 000225-MZ (filed Nov. 4, 2020) and which

5

Stoddard v. City Election Commission of the City of

Detroit, Wayne County Circuit Court Case No. 20-

014604-CZ (filed Nov. 5, 2020) 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. 20-000091MM (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. 20000099-MM (filed May 28, 2020); Election Integrity

Fund v. Benson, Mich. Court of Claims Case No. 20000169-MM; Ryan v. Benson, Mich. Court of Claims

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

31a

B. Deference to State Courts is Warranted

Pursuant to the Electoral Count Act of 1877

Additionally, due to the autonomy federal courts

provide state courts in resolving election disputes,

abstention is particularly appropriate in the instant

case. Id. The importance of allowing state courts the

initial opportunity to settle disputes concerning the

Presidential election is reflected in the Electoral

Count Act of 1877. Section 5 of the Electoral Count Act

applies if the state has provided, “by laws enacted

prior to the day fixed for the appointment of the

electors”—that is, through laws enacted before

Election Day—for its “final determination” of any

“controversy or contest” by “judicial or other methods

or procedures,” and such “determination” has been

made “at least six days before the time fixed for the

meeting of electors.” 3 U.S.C. § 5 (emphasis added).

This safe harbor provision states that if the

determination is made “pursuant to such law” existing

before Election Day, then that determination “shall be

conclusive, and shall govern in the counting of the

electoral votes . . . so far as the ascertainment of the

electors appointed by such State is concerned.” Id.

Thus, in recognizing the important role state courts

play in the resolution of election disputes under state

law, this court should abstain from hearing this case.

See Harrison, 360 U.S. at 177.6

6

The claims are also barred under estoppel doctrines,

including the prohibition against collateral attacks.

The claims have been tested and rejected.

32a

V.

Plaintiffs’

Motion

Must

be

Denied

Pursuant to the Doctrine of Laches

“Laches arises from an extended failure to exercise

a right to the detriment of another party.” Ottawa

Tribe of Oklahoma v. Logan, 577 F.3d 634, 639 n. 6

(6th Cir. 2009). The elements of the claim are: “(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 wellbefore the election (including years before the election)

or on the 3rd and 4th of November. If Plaintiffs had

legitimate claims regarding Dominion, they could

have brought those claims years ago. If Plaintiffs had

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.

VI.

Plaintiffs Cannot be Entitled to Injunctive

Relief

A.

Applicable Law

When evaluating a request for injunctive relief, a

court “must consider four factors: ‘(1) whether the

movant has a strong likelihood of success on the

merits: (2) whether the movant would suffer

irreparable injury without the injunction: (3) whether

33a

issuance of the injunction would cause substantial

harm to others: and (4) whether the public interest

would be served by issuance of the injunction.’”

Waskul v. Washtenaw Cty. Cmty. Mental Health,

221 F. Supp. 3d 913, 917 (E.D. Mich. 2016) (citing

Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001)).

While no single factor is controlling, “if ‘there is

simply no likelihood of success on the merits,’ that is

usually ‘fatal.’” Waskul at 917 (citing Gonzales v. Nat'l

Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir.

2000)).

B.

There is Virtually no Likelihood of

Plaintiffs’ Prevailing on the Merits

Plaintiffs cannot prevail for all the reasons stated

above and because their claims are demonstrably false

and are not fit for inclusion in a document filed with

a court. Plaintiffs also cannot prevail because their

legal theories are untenable. As discussed above,

Plaintiffs equal protection, due process, and state law

claims are predicated on their “voter dilution”

theories. Equal protection voter dilution claims exist

only in 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 (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

34a

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 watchers, 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 currently at play 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.

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 relate to allowing

partisan challengers to observe the process. As the

Costantino court concluded, the truth of the matter is

that 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

35a

post- election remedy. The “remedy” is in the statute

itself, and unsurprisingly, 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.

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.

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.

In any event, Plaintiffs bring “novel” claims

ostensibly available to every Michigan voter in the

event any voting error resulting in an erroneously

counted vote is detected. Their supposed remedy— the

rejection of hundreds of thousands, if not millions, of

votes. No such legal theory exists. As a district court

36a

recently held in one of the Trump election lawsuits

brought in Pennsylvania, “[t]his Court has been

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, 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).

C. Plaintiffs Would Suffer No Harm if an

Injunction Does Not Enter

Plaintiffs cannot show how an injunction would

protect them from irreparable injury. The election is

over. President-Elect Biden carried the State by

154,000 votes. The results have been certified. The

supposed injuries claimed by Plaintiffs, a harm to

their voting rights, would not be avoided by the

injunction they seek; they would be exacerbated.

D. Issuance of an Injunction Would Harm

the City and the Public in an Almost

Unimaginable Manner

In contrast, the City and the public at large would

be severely harmed by the requested relief. The City is

tasked with managing elections for all candidates, not

just for the candidates for President. The proposed

injunction would put an abrupt stop to the orderly

process of this election and undo the timely

certification of all elections.

As aptly stated by the Third Circuit, “tossing out

millions of mail-in ballots would be drastic and

unprecedented, disenfranchising a huge swath of the

electorate and upsetting all down-ballot races too.”

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

37a

No. 20-3371, 2020 WL 7012522, at *1 (3d Cir. Nov.

27, 2020). “Democracy depends on counting all

lawful votes promptly and finally, not setting them

aside without weighty proof. The public must have

confidence that our Government honors and respects

their votes.” Id. at *9. The “public interest strongly

favors finality, counting every lawful voter's vote, and

not disenfranchising millions of … voters who voted by

mail.” Id.

The preservation of our democracy requires zealous

protection against threats external and internal.

Plaintiffs would inflict generational damage in their

naked pursuit of power. Their request must be denied.

CONCLUSION

WHEREFORE, for the foregoing reasons, the City of

Detroit respectfully requests that this Court enter an

Order: (1) denying Plaintiffs’ Motion, (2) compelling

Plaintiffs to publicly file unredacted versions of all

affidavits previously submitted with redactions, and

(2) requiring Plaintiffs to pay all costs and fees

incurred by all Defendants and IntervenorDefendants.

December 2, 2020

38a

Respectfully submitted,

FINK BRESSACK

By: /s/ David H. Fink

David H. Fink (P28235)

Darryl Bressack (P67820)

Attorneys for City of Detroit

38500 Woodward Ave., Ste. 350

Bloomfield Hills, MI 48304

Tel: (248) 971-2500

dfink@finkbressack.com

dbressack@finkbressack.com

CITY OF DETROIT

LAW DEPARTMENT

Lawrence T. Garcia (P54890)

Charles N. Raimi (P29746)

James D. Noseda (P52563)

Attorneys for City of Detroit

2 Woodward Ave., 5th Floor

Detroit, MI 48226

Tel: (313) 237-5037

garcial@detroitmi.goc

raimic@detroitmi.gov

nosej@detroitmi.gov