State officials warn they ‘will not permit disruptive behavior’ from challengers at recounts

The GOP group responsible for an ongoing recount at hundreds of precincts across the state is being accused of disrupting the process, prompting a warning from state election officials.

On Friday, Michigan Elections Director Jonathan Brater sent a letter to Daniel Hartman, an attorney who represents both Jerome Jay Allen, the Bloomfield Township man who filed for the recount, and Election Integrity Force (EIF), the group that helped to finance it.

Citing an incident in Marquette in which an EIF challenger had to be escorted out of a recount operation, Brater said the individual demanded to see both sides of the ballots, even though the recount strictly involved Proposals 2 and 3, which appear on the reverse side. When an official challenge was denied, the person in question became disruptive.

“After he refused the direction of Bureau of Elections staff to leave the recount,” stated Brater, “it was necessary for law enforcement to be called to the recount site and escort him out.”

Brater added that EIF challengers had also reportedly touched ballots and ballot containers and attempted to access restricted areas. 

“To the extent challengers are engaging in this behavior, they run the risk of hindering or delaying the conduct of the recount,” wrote Brater, who warned that the Bureau of Elections “will not permit disruptive behavior.”

A request for comment was made by Michigan Advance to Hartman, but was not returned.

Brater’s warning came two days after Michigan Attorney General Dana Nessel said her office was prepared to act if the disruptions required a law enforcement response.

“Recent reports of threatening behavior and interference at locations where recounts are taking place cause unnecessary disturbances and may even rise to the level of criminal acts,” said Nessel, who was responding to reports of disruptions  in Jackson County, where a joint recount was being conducted for townships in Jackson, Lenawee and Calhoun counties.

EIF responded to Nessel’s statement by alleging that it was their volunteers who had been “treated in an unfair manner,” and that they had filed reports with Nessel’s office. 

“Election integrity is not a partisan issue, and we strive to bring transparent and fair elections to the state of Michigan for all,” read the statement.

The recounts were approved Dec. 5 by the Michigan Board of State Canvassers for both Proposal 2, which expanded voting rights, and Proposal 3, which enshrined abortion rights in the Michigan Constitution. 

The Nov. 8 results on the ballot measures were not close. Proposal 2 passed by a 20-point statewide margin, while Proposal 3 won by 13 points. The measures were opposed by the Michigan Republican Party.

Despite the petitions making disproven claims about software altering votes and election equipment being connected to the internet, board members said state law required them to proceed even though they had no statistical chance to change the outcome. 

State law allows for any voter “who believes that there has been fraud or error” to seek a recount within two days of that certification, as long as they pay a deposit of $125 per precinct. The recount is expected to cost at least $75,000, although officials say it will likely be much higher.

EIF, a Michigan GOP group that has made numerous false claims about the 2020 election, immediately took credit for the petitions, saying the cost of the recount had been made possible by financial support from The America Project. The Sarasota, Fla.-based group is led by Patrick Byrne, who has been a former President Donald Trump supporter and is a former CEO of Overstock.com. 

Allen filed to recount 47 precincts in Kalamazoo, Macomb, Muskegon, and Oakland counties for Proposal 2, and 560 precincts across dozens of other counties for Proposal 3. 

Oakland County Clerk Lisa Brown, a Democrat, told the Michigan Advance they also experienced issues similar to those reported elsewhere when they did their recount last week.

“They wanted to see the front and back [of the ballots],” she said. “They were told that if somebody over voted in any race on the ballot, that the whole ballot should be thrown out, which is not Michigan election law. So they came in thinking incorrect rules and processes and were agitated that it wasn’t what was going to happen.”

Brown says while they didn’t have to have anyone forcibly removed, the sheriff’s deputies who were present did have to spend time talking to the challengers because of what she called their ”misguided” beliefs. 

“I think many of them came in ready to argue,” Brown said. “I mean, they were definitely told that there would be things happening that were not happening. The challenge they put forth was that stubs weren’t being counted. OK, well stubs don’t even have to be kept and don’t have anything to do with anything, especially because if you vote on the voter assist terminal, which is the ADA [Americans with Disabilities Act]  compliant equipment, there is no stub. So you can’t match stuff to votes. That’s not a recount. The recount was specifically for Props 2 and 3, not how many ballots, because some people might skip that, right? Some people don’t vote the proposals. So they wanted to do things that had nothing to do with what the petition actually was for.”

Mark Brewer, an elections lawyer and former Michigan Democratic Party chair, has been supervising the recount effort on behalf of Promote the Vote, the coalition that supported Proposal 2. He tells the Advance that the disruptions he has witnessed and been informed about are beyond anything he has ever experienced.

“It’s unprecedented,” he said. “I have never seen such aggressive and disruptive challengers. They’re doing exactly what the Board of Canvassers told them not to do. They’re not to treat this as some way of conducting an investigation. This is about counting the ballots.”

Brewer concurred that examining the entire ballot is a common request, saying it has been made every day, at every site conducting a recount.

“They insist that they are entitled to examine the entire ballot, when the recount is just about those two proposals because they’re fishing around for other things,” said Brewer. “They’re demanding that if a particular precinct is not countable, for whatever reason, that the [county] board of canvassers on the spot conduct an investigation. That’s not what the law says.”

That very scenario was brought up at last week’s Michigan Board of State Canvassers meeting when Hartman argued that if any issues arose during the recounts, county canvassing boards would have the authority to investigate, including the issuance of subpoenas.

Republican Chair Tony Daunt, hotly contested that notion, calling the effort a “fishing expedition.”

Brewer says it appears that EIF is training challengers to do things that they’re not allowed to do. 

“We’ve had incidents where these challengers have touched valid material, which is absolutely forbidden,” he said. “And again, they are making demands and claims about all kinds of stuff that is way beyond the scope of a recount.”

When asked what he’d like to see happen to those making the disruptions, Brewer said he didn’t want to second guess the actions of authorities like Brater and Nessel, but would definitely like to see them stop attacking the elections officials just trying to do their job. 

“I mean, all these people are just trying to do their job and these challengers with their hostility, their threats of legal action, criminal complaints, calling the police, have just made the working conditions at these sites oppressive,” he said. “I’ve never seen anything this bad, not remotely as bad, in any recounts I’ve ever done.”

Meanwhile, a new report suggests that states should tighten up the rules around recounts, noting that only in races where the margin is exceptionally close is a change in outcome even plausible. 

FairVote, a nonprofit organization that advocates for electoral reform, issued the report last month examining 22 years of statewide recounts across the country. It found that while such recounts are rare — 35 out of more than 6,000 elections — reversals of the outcome were even rarer. 

“Only three of those 35 recounts overturned the outcome of the race,” noted the group. “In all three, the original margin of victory was less than 0.06%. Of course, the margins of victory for Proposal 2 and 3 are both well over 10%.”

The report recommends that states establish an upper threshold for campaign-requested recounts in order to prevent frivolous efforts, saying that the recent trend of recounts in races with no realistic possibility of an outcome reversal has revealed a flaw in many states’ current recount statutes.