LANSING, Mich. (CN) — A Michigan judge said during a hearing Thursday afternoon she will deny the Trump campaign’s request to stop counting ballots statewide.
Michigan Court of Claims Judge Cynthia Stephens said she plans to file a written order by Friday afternoon, handing a loss to the president in his challenge to Democrat Joe Biden’s win in the key battleground state.
The campaign claimed access was restricted for vote challengers and inspectors during the counting process and that ballots were changed by poll workers.
In an affidavit, lawyer and Republican vote challenger Jennifer Connarn said she saw a poll worker in tears at the TCF Center in downtown Detroit when the worker was instructed by others to change the date on ballots to reflect that it was received at an earlier date. Connarn said that when she tried to talk to the worker, she was shouted down and told she was not allowed to talk to them as they processed ballots.
“Based on what I was told by this poll worker, I believe poll workers working at the adjudication table were changing the dates ballots were received,” she said in the affidavit.
Thor Hearne, attorney for the Trump campaign, tried to convince a skeptical Judge Stephens that the affidavit was not hearsay during Thursday’s hearing.
“This is a first-hand, factual statement made by Ms. Connarn and she has made that statement based on her first-hand physical evidence and knowledge,” Hearne said.
“It’s an out of court statement,” Stephens interjected. “You want me to find truth, at least a scintilla of truth in what she says the contents of that communication were, right?”
Hearne said the request for relief was not based solely on that affidavit and that the campaign simply wanted access for observers and challengers to the counting process as stipulated under state law.
“And I’ve got to find that they are not doing that in order to for me to have a basis to tell them to do that,” Stephens responded, referring to election officials.
The Trump campaign filed the lawsuit Wednesday just as news outlets called the race in favor of Biden. Late Wednesday night, the national Democratic Party filed a motion to intervene in the case and said any effort to stop the counting is in violation of the equal protection clause in Michigan’s Constitution since Trump’s group does not have compelling evidence.
The lawsuit alleged Michigan Secretary of State Jocelyn Benson violated voters’ rights under the “purity of elections” clause in the Michigan Constitution by not allowing election inspectors to observe the counting of absentee ballots. The campaign sought an immediate halt to all tabulations until an inspector from each party is allowed to watch.
Michigan Assistant Attorney General Heather Meingast argued the complaint is meritless since the vote count has been completed.
“There isn’t any relief that can be granted at this time. The counting boards have completed their functions, so the ship has really sailed on the relief they are requesting,” she said.
Benson echoed that stance in a response brief.
“The tally of unofficial county results is complete. This means that absent voter ballots have already been processed and counted in the state of Michigan. The relief they seek can no longer be granted,” the filing states.
The response also chided the campaign for a lack of evidence and said it did not have legal standing to demand video surveillance of voter drop boxes as citizens submitted their ballots. It also said that plaintiff Eric Ostergren similarly lacked standing.
“Plaintiff Ostergren does not allege that he was an election inspector—he alleges only that he was credentialed as an election challenger. But a challenger is not the same thing as an inspector—they are appointed in different manners and have different responsibilities,” the brief states. “Indeed, one of a challenger’s duties is to bring issues to the attention of an election inspector. Plaintiff Ostergren’s alleged exclusion, therefore, does nothing to support a violation of [state laws].”
The response also included an affidavit from Director of Elections Jonathan Brater, who testified that election inspectors are appointed and present in each precinct and that no complaints about exclusion from the counting boards were received.