Case 2:20-cv-13134-LVP-RSW ECF No. 36, PageID.2486 Filed 12/02/20 Page 1 of 34 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN TIMOTHY KING, MARIAN ELLEN SHERIDAN, JOHN EARL HAGGARD, CHARLES JAMES RITCHARD, JAMES DAVID HOOPER, and DAREN WADE RUBINGH, CIVIL ACTION Plaintiffs, Case No. 2:20-CV-13134 v. GRETCHEN WHITMER, in her official Hon. Linda V. Parker capacity as Governor of Michigan, JOCELYN BENSON, in her official capacity as Michigan Secretary of State, and MICHIGAN BOARD OF STATE CANVASSERS. Defendants. and DEMOCRATIC NATIONAL COMMITTEE and MICHIGAN DEMOCRATIC PARTY, Intervenor-Defendants. INTERVENOR-DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR DECLARATORY, EMERGENCY, AND PERMANENT INJUNCTIVE RELIEF Case 2:20-cv-13134-LVP-RSW ECF No. 36, PageID.2487 Filed 12/02/20 Page 2 of 34 STATEMENT OF ISSUES PRESENTED I. Whether Plaintiffs are entitled to preliminary injunctive relief. Intervenor-Defendants’ Answer: No. II. Whether Plaintiffs are entitled to permanent injunctive relief. Intervenor-Defendants’ Answer: No. i Case 2:20-cv-13134-LVP-RSW ECF No. 36, PageID.2488 Filed 12/02/20 Page 3 of 34 CONTROLLING AND APPROPRIATE AUTHORITY Lance v. Coffman, 549 U.S. 437, 442 (2007) Bognet v. Sec’y of Commonwealth, No. 20-3214, 2020 WL 6686120 (3d Cir. Nov. 13, 2020) CenTra, Inc. v. Estrin, 639 F. Supp. 2d 790 (E.D. Mich. 2009) Donald J. Trump for President, Inc. v. Boockvar, No. 4:20-CV-02078, 2020 WL 6821992 (M.D. Pa. Nov. 21, 2020) Costantino v. City of Detroit, No. 20-014780-AW (Mich. Cir. Ct. Nov. 13, 2020) ii Case 2:20-cv-13134-LVP-RSW ECF No. 36, PageID.2489 Filed 12/02/20 Page 4 of 34 INTRODUCTION Plaintiffs seek unprecedented and wholly unjustified relief. Based on what Plaintiffs describe as an international conspiracy to rig the election for Joe Biden, Plaintiffs now ask this Court to “de-certify” Michigan’s election or “stay the delivery of the certified results to the Electoral College.” Mot. at 16. Far from preserving the status quo, Plaintiffs’ requested relief would dramatically alter it by wreaking havoc on Michigan’s ability to have its chosen slate of electors represented in the Electoral College and by violating the constitutional rights of millions of Michiganders. At the outset, the Court should deny Plaintiffs’ motion because the Court lacks jurisdiction to hear this case and Plaintiffs have not stated viable constitutional claims. Nor does the Constitution permit the type of judicial oversight into Michigan’s election procedures that Plaintiffs seek. Plaintiffs’ motion thus provides no basis for their extraordinary demand to “decertify” election results. Regardless, Plaintiffs have no likelihood of success on the merits given the paltry “evidence” submitted with their motion. Plaintiffs’ extraordinary claims of vote-rigging demand extraordinary proof. Instead, Plaintiffs have presented this Court with scientifically unsound expert reports, wild conspiracy theories, and speculative allegations of election law violations (many of which have already been considered and rejected by other courts). Indeed, just yesterday Attorney General Barr confirmed the Department of Homeland Security and Department of Justice 1 Case 2:20-cv-13134-LVP-RSW ECF No. 36, PageID.2490 Filed 12/02/20 Page 5 of 34 have investigated allegations of electoral fraud and the specific claim that voting machines were hacked and found no substance to those claims. See Ex. 3. In short, as detailed in Intervenor-Defendants’ motion to dismiss, PageID.1908-1941, Plaintiffs cannot even state a plausible claim for relief, let alone show they are likely to prevail on the merits. Nor do the other injunction factors favor Plaintiffs. The Court should deny the motion. BACKGROUND A. The General Election and Pending Post-Election Challenges In the weeks leading up to, and on, November 3, 2020, a record 5.5 million Michiganders voted in the presidential election. Ex. 4. Those votes have been processed and canvassed by a dedicated team of election officials, operating under intense scrutiny in the midst of a public health crisis. The presidential election was not close: by more than 150,000 votes, the people of Michigan decisively chose Joseph R. Biden, Jr. to be the next President of the United States. See id. Dissatisfied with that outcome, the Trump Campaign and its supporters have sought to accomplish through the courts what they were unable to do at the polls. As detailed more extensively in Intervenor-Defendants’ motion to dismiss, state court plaintiffs have already (unsuccessfully) lobbed unsupported charges of mistreatment of election observers, counting of ineligible ballots, pre-dating of absentee ballots, ballot tabulators miscounting votes for Trump, and unsecured ballots being delivered 2 Case 2:20-cv-13134-LVP-RSW ECF No. 36, PageID.2491 Filed 12/02/20 Page 6 of 34 in large bins or vans. See PageID.1919-1921. Michigan state courts have universally found these allegations meritless. See id. Additionally, another group of plaintiffs contesting the election results recently filed a Petition in the Michigan Supreme Court, raising many of the same issues and claims Plaintiffs raise here, and seeking strikingly similar relief, including a request to enjoin certification. See PageID.2026- 2080. All of these state court actions remain ongoing. B. Michigan’s Post-Election Procedures and Deadlines Under Michigan law, the Michigan State Board of Canvassers was required to canvass results of the 2020 General Election by November 23, 2020. MCL § 168.842. The State Board did so by a 3-0 vote, certifying the results “for the Electors of President and Vice President,” among other offices. Ex. 5. That evening, Governor Whitmer signed the Certificates of Ascertainment for the slate of electors for Joseph R. Biden and Kamala Harris. Ex. 6. Those certificates have already been transmitted to and received by the National Archives. See id. There are no procedures under Michigan law to “de-certify” an election that has already been certified. Under the federal statutory timetable unique to presidential elections, the Electoral College must meet on “the first Monday after the second Wednesday in December,” 3 U.S.C. § 7—this year, December 14. The federal “safe harbor” date, which gives conclusive effect to a state’s electoral votes if they are submitted by a certain date, occurs even earlier—this year, December 8. Id. § 5. 3 Case 2:20-cv-13134-LVP-RSW ECF No. 36, PageID.2492 Filed 12/02/20 Page 7 of 34 Michigan law also sets forth procedures to conduct an audit of an election. MCL § 168.31a. Secretary of State Benson has already announced the state will conduct such an audit. Ex. 7. LEGAL STANDARD “[A] preliminary injunction is an extraordinary and drastic remedy [] that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” CenTra, Inc. v. Estrin, 639 F. Supp. 2d 790, 806 (E.D. Mich. 2009) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). The movant “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Plaintiffs’ motion fails on each of these factors. Moreover, a temporary injunction that requests an affirmative act, like the one Plaintiffs request here to decertify the election, see Mot. at 16, is “tantamount to a mandatory injunction [and] requires a higher [] burden to issue than required of an order merely preserving the status quo.” Albino-Martinez v. Adducci, 454 F. Supp. 3d 642, 646 (E.D. Mich. 2020). Finally, because Plaintiffs also seek “a stay in the delivery of the certified results to the Electoral College”—a request which Plaintiffs describe as merely “preserv[ing] the status quo,” but which could, in reality, have a permanent, 4 Case 2:20-cv-13134-LVP-RSW ECF No. 36, PageID.2493 Filed 12/02/20 Page 8 of 34 prejudicial effect on Michigan’s ability to meet the federal safe harbor deadline for its chosen electors—this Court should require Plaintiffs to demonstrate actual success on the merits. As the Sixth Circuit has explained, “[w]e ought not to grant temporary relief which would finally dispose of the case on its merits” unless plaintiffs have shown they have “prevail[ed] on the merits of the case.” Dunn v. Retail Clerks Int’l Ass’n, AFL-CIO, Local 1529, 299 F.2d 873, 874 (6th Cir. 1962). ARGUMENT I. Plaintiffs are not likely to succeed on the merits of their claims. A. This Court lacks jurisdiction to hear this case. Before even reaching the myriad problems that plague Plaintiffs’ case on the merits, this Court should first deny Plaintiffs’ motion due to the jurisdictional defects plainly apparent from their request for a temporary injunction and the federalism concerns their request raises. Plaintiffs seek a remedy which a federal court cannot provide, and lack Article III standing. The Court should deny the motion due to these fatal flaws alone. Indeed, given that well-established principles of abstention warrant deference to the ongoing state court proceedings, it would be particularly inappropriate for the Court to impose the dramatically status quo altering relief plaintiffs seek here. See PageID.1923-1928. 1. Plaintiffs’ requested relief is barred by the Eleventh Amendment. As Intervenor-Defendants detailed in their motion to dismiss, Plaintiffs’ request that a federal court direct a state officer to comply with state law is barred 5 Case 2:20-cv-13134-LVP-RSW ECF No. 36, PageID.2494 Filed 12/02/20 Page 9 of 34 under the Eleventh Amendment, regardless of their efforts to dress up their state law concerns in the clothing of federal claims.