Judge Kevin A. Elsenheimer of the 13th Circuit Court in Michigan dismissed Attorney Matt DePerno's Antrim County lawsuit on Tuesday. The Motion for Summary Disposition filed by Secretary of State Jocelyn Benson and Antrim County was dismissed because the judge ruled that:
“There is no right either in the Constitutional section or in Statute for the independent audit that Mr. Bailey seeks. A Petitioner under Article 2, Section 4, does not get to choose his own audit criteria, rather, the Legislature has given that authority of review to the Secretary of State. So while a citizen may seek an audit, they must do so through the Law.”
The Motion for Summary Disposition, as read by Judge Elsenheimer, included the three points below:
- One, the Plaintiffs claims are moot as all requested relief has been granted and, therefore, this court lacks jurisdiction to review moot claims;
- Two, Plaintiff lacks standing to bring its claims into court; and
- Three, Plaintiff has failed to state a claim upon which relief can be granted.
Concerning point One, Judge Elsenheimer stated that his court had already "largely" granted the relief sought in the case—the forensic audit that took place in early December. Last week, the judge was clear in his instruction that no further discovery would be allowed in the case.
With regard to the call for a Constitutional independent audit, the judge ruled that passing of Proposal 3 in 2018, which amended the 1963 Constitution, guaranteed "every citizen of the United States who is an elector qualified to vote in Michigan the right to have the results of statewide elections audited in such a manner as prescribed by law to ensure the accuracy and integrity of elections."
The amendment has not surfaced in the Appellate courts but has surfaced in the trial courts, according to Elsenheimer. He continued, saying that it did come up in a Wayne County circuit matter of Constantino V The City of Detroit. The ruling there only allowed for "the Secretary of State and appropriate county clerk to conduct a results audit in at least one race in each audited precinct."
"Results audits have been approved by the state legislature," Elsenheimer added. The question of any amendment must be left to the "voice of the people through the legislature, rather than action by the court." In other words, the audit that DePerno requests must be ruled by decisions by the legislature, not by the courts.
The judge also said that an audit did occur and, while not the audit Bailey wanted, it satisfied the requirements at the time. A citizen must audit according to the law, and there "is no other relief available to the Plaintiff," the judge stated.
The court recognized that there were indeed problems in the election, and the "clerk admitted" as such. He also remained neutral on the claims that the evidence was "corrupted or corruptible." Elsenheimer cited the recent Colonial Pipeline hack as a reason policymakers might want to look into computer hacks for elections in the future.
The judge took all pending motions under advisement in anticipation of an appeal. Elsenheimer also reminded the parties to continue to preserve the ballots per his order in December 2020.
Plaintiff Bill Bailey appeared in a YouTube video stream below after the hearing to reassure people that he does have a backup plan. He anticipated that the ruling might go the way it did. He has no plans to retreat.
Bailey discussed tweets posted by DePerno after the hearing on Tuesday indicating that the pair has more evidence of fraud in the 2020 election:
It seems that the Election Management Systems results files in Antrim County do not match the "hand recount." This was apparently discovered on the morning of May 18 by expert Jeff Lenberg, who stated that it could mean "a manipulation of the vote count."
Votes don't match records/Jeff Lenberg
Bailey explained the discovery in his stream, remarking that the Secretary of State did not have the "most secure election" she claims to have had. He also stated that he thinks Elsenheimer "caved." Bailey stated that the evidence and "the goods" they have are reason enough to celebrate. This is the only election case so far that has gone to the evidentiary phase.
Benson tweeted that she will continue to fight the #BigLie and the "ongoing attempts of democracy deniers to use deceit and misinformation to enact policies that will block access to the vote in future elections."
Bailey refrained from telling the audience his legal strategy. Bailey told his viewers he "is just gettin' started—we're just gettin' our stride on."