BELLAIRE — The plaintiff in a court case accusing Antrim County of voter fraud, could not have voted on the proposal for which he said his constitutional rights were violated, records show.
“In reading the judge’s opinion, the plaintiff could not have had a vote on the village’s marihuana ordinance as the plaintiff is not a resident of the Village of Central Lake,” said Andrew Smith, clerk/treasurer of Central Lake Village.
“He didn’t get the wrong ballot,” said Antrim County Deputy Administrator Jeremy Scott. “The qualified voter file would have his record when he came in with his ID. He would not have misunderstood. He would have seen the ballot measure wasn’t on his ballot.”
On Sunday, political operatives — some from Washington, D.C. — took photographs of Antrim County’s 16 precinct voting machine tabulators, following a court order signed by 13th Circuit Court Chief Judge Kevin A. Elsenheimer.
The order, signed Friday, granted Bill Bailey’s Nov. 23 request for a forensic examination.
Bailey, a realtor and member of the Antrim County Planning Commission, lives in Central Lake Township, has been registered to vote there since March of 2014 and voted in person Nov. 3, records show.
In his lawsuit against the county, however, Bailey claimed his constitutional rights were violated following passage of an ordinance authorizing a marijuana retailer within Central Lake Village.
Antrim County Clerk Sheryl Guy — herself the subject of controversy after as many as 2,500 votes for President Donald Trump were temporarily assigned to President-elect Joe Biden when voting software was not fully updated — confirmed Smith’s statement.
Only those registered voters who live within the village limits were provided a ballot containing the marijuana proposal, she said.
Guy said Saturday she had passed lawsuit documents onto the Michigan Secretary of State’s office; a statement from Department of State spokesperson Jake Rollow called into question the technical expertise of those permitted to gather images of Dominion voting equipment in Antrim County and warned voters to be wary of claims.
“It is disappointing, though not surprising, that the primary goal of this group is to continue spreading false information designed to erode the public’s confident (sic) in the election,” Rollow said in a press release Tuesday.
Dominion Voting Systems supplies polling equipment in 28 states, and has been the subject of vigorous criticism from President Donald Trump and his surrogates following the Nov. 3 election.
Revised numbers show that of the more than 17,000 votes cast in Antrim County, the president received 9,748 votes to President-elect Biden’s 5,960 votes.
Central Lake Village straddles the north end of Intermediate Lake in the western portion of Antrim County. Central Lake Township occupies 31.3 square miles surrounding the village.
Residents of the village and the township vote at a shared governmental center building and it is not unusual for township voters and village voters to receive different ballots reflecting issues directly related to their residency, Guy said.
This was the case on Nov. 3.
“There were three styles of ballots in Central Lake Township precinct one,” Guy said. “Voters were given the ballot corresponding to their address of residency.”
All Central Lake voters received ballots with national, state and county-wide races, Guy said.
Voters like Bailey, who live in the township, received a CENT-style ballot, which also included Charlevoix Intermediate School District and Central Lake School District races. Voters who live in Ellsworth received an ELLS-style ballot, which included the Ellsworth School Board race. Voters who live in Central Lake Village received a V-style ballot, which included the marijuana proposal, she said.
There were 524 votes cast regarding the proposal and the initial result was a tie — 262 for and 262 against, records show. To pass and become an ordinance, a proposal must win by at least one vote.
The software updating error required the vote be retabulated, which was completed Nov. 6.
In that process three ballots were damaged, were then manually re-filled out and re-run through the tabulator and final numbers, 262-261, showed the proposal had passed by a single vote.
“When there’s a question about official results our next back up is the ballots themselves be retabulated and that’s what was done in Central Lake,” Scott said. “If there was still some issue, then you would be talking about a hand recount.”
No hand recount of the marijuana proposal was requested, Scott said and the deadline — six days following the Nov. 3 vote — has passed, he added.
“If any candidate truly thought that the Dominion machines failed to correctly count ballots, they should have requested a hand-recount of ballots,” the statement from the secretary of state reads. “No recounts of state elections were requested in Antrim County.”
The retabulation, however, remains at the center of Bailey’s complaint.
“Plaintiff argues that failure to include the damaged ballots in the retabulation resulted in the marijuana proposal passing and violated his constitutional right to have his vote counted,” Judge Elsenheimer’s order states.
The vote on the marijuana proposal was a deciding issue in the case, as shown by the judge’s finding.
“The temporary, let alone total, loss of a constitutional right constitutes irreparable harm which cannot be adequately remedied by an action of law. As such, the Court finds that Plaintiff has met the requirement for irreparable harm.”
But Scott said the damaged ballots were included in the retabulation, and the final discrepancy could have been caused by something as innocuous as a voter marking an “x” instead of filling in a circle. That mark may have been missed by the tabulator on the first read, then recorded on the retabulation, he said.
As far as the secretary of state is concerned, the error has already been thoroughly explained.
“It was prompted by the Clerk not updating media drives in some of the machines in Antrim County, an accidental human error,” the statement reads. “Reporting errors are common and always caught and corrected in the county canvass if not before, as was the case in Antrim County.”
Nonetheless, Rudy Giuliani, an attorney and the former Mayor of New York City who the president put in charge of his post election legal challenges, seized on the issue. Tweeting it to his 1.3 million followers Dec. 4, Giuliani falsely claimed an “untrustworthy” voting machine “flipped 6,000 votes from Trump to Biden.”
“Flipped,” said Scott, is not an accurate characterization of what happened in Antrim County and while the exact number of those votes in question is difficult to ascertain, it wasn’t 6,000 or even half that number, he said.
Whether Bailey could have had standing to argue his rights were violated simply by living near a marijuana retailer he opposed and which was allowed to operate as the result of a vote Bailey categorized as fraudulently tabulated, wasn’t argued as part of the case, court records show.
Bailey declined comment, referring a Record-Eagle reporter to an article on a far-right news and opinion website which fact checker websites Politifact and Newsguard separately found publishes false information and violates basic standards of credibility and transparency.
Bailey is represented by Matthew DePerno, a Portage-based attorney, who did not return calls seeking comment.
Elsenheimer declined comment, citing ongoing litigation.
The ordinance allowing a single marijuana retailer to open in Central Lake remains valid, Scott said.
Applications from those interested are being accepted until Dec. 24 at 5 p.m. and include a $2,500 non-refundable application fee, information on the village’s website stated.