Michigan Supreme Court puts final nail in legal coffin for DePerno’s Antrim County lawsuit

By: - December 9, 2022 5:40 pm

Republican nominee for Michigan attorney general Matthew DePerno campaigns in Lansing on Aug. 27, 2022. (Andrew Roth | Michigan Advance)

A final attempt to relitigate a failed Antrim County election lawsuit has been rejected by the Michigan Supreme Court.

In an order issued Friday, the state’s highest court upheld lower court rulings that dismissed the lawsuit filed by former Republican attorney general candidate Matthew DePerno just days after the 2020 election in which President Joe Biden defeated then-President Donald Trump. 

The suit claimed election fraud based on Antrim County election results that briefly showed Biden winning in the predominantly Republican county. 

The mistake, which was due to human error, was quickly corrected and had no bearing on the election. However, it was quickly seized upon by Trump and his allies in an effort to spread baseless conspiracy theories and cast doubt on the legitimacy of the election.

DePerno, who is currently seeking to be the next chairman of the Michigan Republican Party, also used the Antrim results to push for so-called “forensic audits” during his unsuccessful campaign to unseat Michigan Attorney General Dana Nessel on Nov. 8. 

Nessel, who intervened in the lawsuit on behalf of Secretary of State Jocelyn Benson, said the order was the final appeal in the case.

“These fraudulent claims were utilized to undermine the electorate’s faith in our system of elections not just in Michigan, but nationwide,” said Nessel. “Not a single member of the Court believed the claims made by the plaintiff or his counsel were worthy of consideration.  Let this be the nail in the coffin for the specious claims made during the course of this case.” 

In the course of appealing the lawsuit, DePerno argued that the Michigan Constitution allowed any individual to request and perform an election audit.

Justice David Viviano, a conservative, addressed that point in a concurring opinion, in which he said that while the scope of the audit clause was unclear, “it surely cannot be that each qualified elector can undertake his or her own separate audit of an election.”

The clause he referred to was added to the state’s Constitution in 2018, stating that “[e]very citizen of the United States who is an elector qualified to vote in Michigan shall have . . . [t]he right to have the results of statewide elections audited, in such a manner as prescribed by law, to ensure the accuracy and integrity of elections.”

Viviano referenced a previous dissent of his on this very issue in a 2020 case, Costantino v Detroit, in which he questioned whether the audit right was meant as a  “mechanism to facilitate challenges to election results, or does it simply allow for a postmortem perspective on how the election was handled?”

In Friday’s concurring opinion, Viviano said that question remained unanswered.

“The proper interpretation of the audit right represents a significant question that this Court should address,” he wrote.

DePerno, meanwhile, remains the subject of an investigation initiated by Nessel’s office into an alleged conspiracy to illegally obtain and tamper with voting tabulators.

In a petition last August seeking a special prosecutor, DePerno was named along with two others, Stefanie Lambert Juntilla and state Rep. Daire Rendon (R-Lake City), of having “orchestrated a coordinated plan to gain access to voting tabulators” used in Roscommon, Barry County and Missaukee counties. 

That investigation is now being handled by Muskegon County Prosecutor D.J. Hilson, a Democrat, who was appointed in September by the executive director of Prosecuting Attorneys Coordinating Council.

It’s worth noting that Lambert Juntilla was previously sanctioned by a federal judge for her role in bringing “frivolous” lawsuits that sought to overturn the 2020 election and more recently assisted in the filing for a recount of votes cast for two ballot proposals during the midterm election.

The petition seeking the ballot recounts also make similar disproven claims about software altering votes and election equipment being connected to the internet.

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Jon King
Jon King

Jon King is the Senior Reporter for the Michigan Advance and has been a journalist for more than 35 years. He is the Past President of the Michigan Associated Press Media Editors Association and has been recognized for excellence numerous times, most recently in 2022 with the Best Investigative Story by the Michigan Association of Broadcasters. He is also an adjunct faculty member at Cleary University. Jon and his family live in Howell.