Judge rejects Kristina Karamo lawsuit targeting Detroit voters ahead of midterm election

In a blistering opinion issued the day before the midterm election, Wayne County Circuit Court Judge Timothy Kenny Monday rejected a request from Kristina Karamo — the Republican vying to serve as Michigan's next chief elections officer — to expand election observers' access in Detroit's absentee ballot counting room and subject Detroit voters and election officials to a different set of rules than the rest of the state.

In his order Monday, Kenny dismissed the lawsuit, which was filed less than two weeks before the midterm election and initially asked the court to halt the count of absentee ballots for the Nov. 8 election not requested in person by Detroit voters.

"Plaintiffs have raised a false flag of election law violations and corruption concerning Detroit's procedures for the November 8th election," Kenny wrote in his opinion. "This Court's ruling takes down that flag."

Kenny said that those who brought the lawsuit "sat on their hands for months before bringing a complaint" that "would create the potential harm of disenfranchising tens of thousands of Detroiters" in the election Tuesday.

"This is unacceptable and cannot be permitted."

In a brief filed Friday, lawyers representing Karamo and other plaintiffs in the case modified the request to prevent the count of absentee ballots Detroit voters requested in person.

The brief instead asked the court to prohibit voters from requesting absentee ballots by mail or online without presenting identification for all future elections until Secretary of State Jocelyn Benson established rules instructing election administrators how to verify voter signatures. Benson attempted to do so before the election Tuesday, but a GOP-led legislative committee punted on the matter, delaying action until after the election.

Kenny wrote that in "the 48 hours between November 2nd and November 4th, Plaintiffs' relief requests changed three times." And he dismissed the request for the court's intervention in future elections as moot.

He said that during an evidentiary hearing that lasted nearly nine hours last week those who brought the lawsuit "failed ... to produce any shred of evidence."

Karamo countered in a tweet that Kenny "refused to allow 'evidence' of past violations .... and decided the case only on 'claims' by the defendants of how they 'intend' to conduct this election."

Kenny blasted the preliminary injunction originally sought to mandate Detroit voters request ballots in person as a clear violation of the Michigan Constitution, which gives registered voters in the state the right to request absentee ballots by mail.

"Such harm to the citizens of the city of Detroit, and by extension the citizens of the state of Michigan, is not only unprecedented, it is intolerable," he wrote. "The idea that the Court would single out one community in the state to be treated adversely when Plaintiffs have provided no evidence in support of their allegation simply cannot be allowed to occur."

Other plaintiffs in the lawsuit brought by Karamo include poll challengers who have observed the vote count in Detroit in previous elections now leading trainings for election monitors and an organization that has touted its legal effort to decertify the 2020 election.

Kenny characterized his experience presiding over a week of hearings in the case as unprecedented after the lawyers representing Karamo and the other plaintiffs denied that their lawsuit would disenfranchise military voters or require Detroit voters to request absentee ballots in person as their complaint stated.

"As a judge for 26 years, this is the first time I have ever had a circumstance where the party instigating a lawsuit when asked by the judge, 'what's the relief you're asking for?' I don't get an answer," Kenny said at the end of oral arguments Friday.

More:Kristina Karamo seeks court order that could impact thousands of Detroit voters

More:Detroiters see disenfranchisement in Karamo bid to tweak majority-Black city's voting rules

In a new request for relief filed Friday, Karamo's lawsuit also argued that poll challengers empowered to contest the eligibility of voters to cast a ballot should have the authority to oversee election workers who verify voter signatures on absentee ballot applications. It asked Kenny to order Detroit City Clerk Janice Winfrey to create a public record of how Detroit election workers verified signatures of the city's voters, provide a livestream of the camera surveillance of drop boxes in the city for future elections and grant challengers access to a platform in the Detroit absentee counting room housing the computers that collect election results. Kenny dismissed the allegations supporting the request for expanded access, writing they were "unsubstantiated and/or misinterpret Michigan election law."

Even the modified request for relief would have threatened the votes of thousands of Detroiters, according to David Fink, a lawyer who represented Winfrey in the case. For instance, it asked the court to end the process for adjudicating ballots rejected by the tabulators in a process overseen by Republican and Democratic election workers to make sure every vote counts.

"Of equal importance though … they were continuing to make the demand that in future elections Detroiters and only Detroiters would be required to show identification in person in order to vote absentee, a burden a that would not be imposed on any voters anywhere else in the state," Fink said. "They were asking the court to do that in the next presidential election."

During oral arguments in the case, Detroit corporation counsel Conrad Mallett characterized the lawsuit as an attack on Winfrey and Detroit voters. "I am just stunningly surprised and disappointed we are where we are. Plaintiffs based on conjecture, innuendo and half-baked conspiracy theories stormed into this court alleging wrongdoing," he said. Democratic Attorney General Dana Nessel and the Michigan Democratic Party filed motions to submit briefs in support of a legal filing from Winfrey opposing plaintiffs' request for court invention ahead of the election.

Detroit voters, political leaders and the Detroit Branch NAACP said that Karamo's last-minute legal bid was an attempt to disenfranchise tens of thousands of voters in the nation's largest majority-Black city.

During oral arguments, Alexandria Taylor, an attorney representing Karamo and others in the case, said the lawsuit "has nothing to with race" and said identity politics has worked to "deceive Detroiters and mask deep-rooted corruption."

"We filed this lawsuit to shed light in a dark place. A place that has been enshrouded by a veil of secrecy," she said.

In his opinion, Kenny criticized plaintiffs for leveling unfounded allegations of wrongdoing in Detroit.

"While it is easy to hurl accusations of violations of law and corruption, it is another matter to come forward and produce the evidence our Constitution and laws require," he wrote. "Despite Plaintiffs' arguments to 'shed light on a dark place,' they have failed dramatically."

Kenny issued the opinion after lawyers involved in Karamo's lawsuit sought to disqualify him from presiding over the case and assign a visiting judge outside of Wayne County to hear the matter. The lawyers withdrew their motion for disqualification when they learned that as chief judge, Kenny presides over all election-related cases and that his name does not appear on the midterm ballot.

Winfrey filed a motion for sanctions Friday regarding plaintiffs' motion for disqualification asking the court to require those who brought the lawsuit to pay more than $11,600 to cover the city's legal fees.

Election officials recommend voters who have requested and received their absentee ballots complete and return them as soon as possible in person at their local clerk's office or a drop box to avoid postal delays. Clerks must receive absentee ballots by 8 p.m. Tuesday for them to count. Those eligible can register to vote and cast a ballot until 8 p.m. on Election Day. Polls open at 7 a.m. and close at 8 p.m. Tuesday.

More:Voter guide for Michigan election 2022: Macomb, Oakland, Wayne counties

Clara Hendrickson fact-checks Michigan issues and politics as a corps member with Report for America, an initiative of The GroundTruth Project. Make a tax-deductible contribution to support her work at bit.ly/freepRFA. Contact her at chendrickson@freepress.com or 313-296-5743. Follow her on Twitter @clarajanehen.