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Thursday, December 8, 2016

Former Oakland Circuit Court Judge Has Central Role in Vote Recount Litigation

Who knew that former Oakland County Circuit Judge Mark Goldsmith, now on the federal bench in Detroit, would play the central role in the presidential vote recount litigation that has burned a quick hole into the federal and state courts here in Michigan over the past few weeks. Judge Goldsmith has flip-flopped on the vote count; first mandating a re-count, then ordering it to stop after his initial decision became the subject of a ruling by the United States Sixth Circuit Court of Appeals.

We noted, as it was happening, that independent candidate Jill Stein ran cover for the Clinton campaign by filing for vote recounts in Wisconsin, Michigan and Pennsylvania. Yesterday, Stein's lawyers argued to Judge Goldsmith in federal court that the 10,704 vote margin in Trump's favor featured a host of serious but unspecified irregularities, especially in the Detroit precincts.

The Michigan Republican Party, in the media, and the Michigan Attorney General, in the courts, characterized the Stein-sponsored litigation as an expensive futile partisan publicity stunt. Republican Attorney General Bill Schuette was having none of this; the AG intervened in the federal suit filed by Stein with a pair of heavy-duty legal eagles: former Michigan Solicitor General John Bursch and Chief Legal Counsel Matthew Schneider, former legal counsel in the Bush 43 White House.

Here are the basic mechanics of the vote re-count litigation. Jill Stein, in her capacity as a presidential candidate, and Louis Novak, in his capacity as a Michigan voter, filed a timely petition with the Michigan State Board of Canvassers seeking a state-wide vote recount. President-elect Trump filed objections to the petition and the Board of Canvassers deadlocked on the recount at 4 votes each.

State law provides, in the event of a deadlock by the Board, for the recount to commence. Trump promptly appealed to the Michigan Court of Appeals, with an application to bypass the intermediate appellate court and go straight to the Michigan Supreme Court.

On the pretext of having the will of Michigan's voters usurped by Congress pursuant to applicable federal election laws, Stein filed a lawsuit in the United States District Court for the Eastern District of Michigan seeking an injunction forcing the Board of Canvassers to execute the re-count. Citing the Bush v Gore SCOTUS decision, Judge Goldsmith found that Stein had demonstrated a likelihood of success on the merits of their claim that further delay of the voter re-count would violate her fundamental constitutional right to a presidential vote under the First and Fourteenth Amendments. He ordered the recount to commence.

This ruling was appealed in real time to the United States Sixth Circuit Court of Appeals which upheld Judge Goldsmith's initial injunction, but commented that it would expect the lower court to entertain properly filed motions once the Michigan Court of Appeals subsequently addressed the state voting law issues.

The Michigan Court of Appeals concluded that Stein could not demonstrate that she was aggrieved as a candidate by either fraud or mistake. With this ruling in hand, the Michigan Attorney General filed an emergency petition in federal court and the TRO was dismissed.

Presently, the recount has been halted and, unless the Michigan Supreme Court reverses the Court of Appeals [unlikely] the matter has been concluded.

Whew! This case certainly demonstrates how swiftly our courts can operate given issues of sufficient gravity.

Post #569

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