Michigan Supreme Court rejects DePerno effort to revive Antrim County election case

The Michigan Supreme Court rejected a last-ditch effort to revive the Antrim County election lawsuit, a case that drew the attention of former President Donald Trump and many of his supporters for its unfounded allegations of fraud and misconduct.

The order issued Friday upholds decisions from the Michigan Court of Appeals and a lower court dismissing the lawsuit, brought in the days after the 2020 election by lawyer Matthew DePerno. DePerno did not immediately respond to a request for comment.

Michigan Attorney General Dana Nessel intervened in the lawsuit on behalf of Secretary of State Jocelyn Benson, repeatedly arguing it served as a vessel to spread election misinformation.

“Today the Michigan Supreme Court affirmed what the people of Michigan made clear they knew when they voted in record numbers in the recent midterm election — that the 2020 election was fair, secure and accurate and suggestions to the contrary are misguided, and meritless attempts to undermine the integrity of elections and harm American democracy," Benson said in a statement.

Nessel concurred, blasting the underlying arguments in DePerno's lawsuit.

“This order is the final word in this case on the legitimacy and accuracy of our elections. These fraudulent claims were utilized to undermine the electorate’s faith in our system of elections not just in Michigan, but nationwide," she said in a statement.

"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."

More:Michigan appeals court rules against DePerno effort to revive debunked election fraud case

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None of the Michigan Supreme Court justices filed a dissenting opinion in the case. While the order does not provide a lengthy description of why the appeal was denied, Justice David Viviano offered some context for why he thought the appeal was not warranted.

DePerno, who recently lost in his GOP bid to become the state's next attorney general, argued a human error in the northern Michigan community was actually evidence of any number of potentially sweeping issues. A lower court dismissed his case in the spring of 2021.

While arguing his case for an appeal before the Michigan Court of Appeals, DePerno said the state Constitution allowed any individual to request and perform an audit of an election.

Viviano, a conservative, said that did not make sense. He did argue that a portion of the Michigan Constitution updated by a 2018 voting amendment that deals with audits could be clarified, though.

"The precise contours of this new audit right are unclear and have never been addressed by this court. As I have explained in the past, the language of this provision could ensure an audit that facilitates timely challenges to election results or allows for assessments of election procedures that lead to future improvement," Viviano wrote in his statement concurring with his fellow justices in denying DePerno's application to appeal.

"But whatever (the state Constitution) means, it surely cannot be that each qualified elector can undertake his orher own separate audit of an election."

Michigan voters adopted a constitutional amendment in the recent midterm election that would modify the right to an election audit, approving Proposal 2 with nearly 60% of the vote.

In doing so, they clarified that the secretary of state must conduct election audits and supervise county election officials to help carry them out. The amendment bars any officers and members of the governing bodies of national, state and local political parties, as well as precinct delegates for political parties, from playing “any role in the direction, supervision, or conduct of an election audit.”

The amendment also establishes new transparency requirements for audits. It requires a public release of the methods for auditing an election before the election takes place, for audits to be conducted in public and public disclosures of funding for election audits.

Calls for election reviews and so-called "forensic audits" became commonplace after the 2020 election, in part thanks to a human error in Antrim County. The Antrim County clerk quickly found the error — which briefly showed Trump lost the heavily conservative county — and fixed it before the county canvassing board certified them. The results were affirmed by a hand recount.

But DePerno argued, without credible evidence, there could be issues with the voting machines that would undermine any recount or other efforts by elections officials.

Judge Kevin Elsenheimer of the 13th Circuit Court granted a limited order in the initial phase of the lawsuit that allowed DePerno and a team of purported forensic experts to review a handful of Antrim County election machines. The review prompted the creation of a debunked but widely read report suggesting issues in Antrim County demonstrated possible problems around the country.

Despite numerous experts highlighting obvious flaws in the report, Trump used it to try and bolster his efforts to undermine the 2020 election results. DePerno rode the wave of attention and conservative popularity he garnered through the case to securing the Republican nomination for attorney general. Although he lost by 9 percentage points to Michigan Attorney General Dana Nessel, he's now running to become the next chairman of the Michigan Republican Party.

In April, the Michigan Court of Appeals determined Elsenheimer dismissed the case for the wrong reasons but agreed that it still should be dismissed.

"(DePerno's client) merely raised a series of questions about the election without making any specific factual allegations as required. Because plaintiff 'failed to disclose sufficient facts and grounds and sufficient apparent merit to justify further inquiry ...' the trial court properly granted summary disposition," the judges wrote in the unanimous opinion.

More:Prosecutor: DePerno criminal investigation won't be done before Election Day

More:Muskegon prosecutor appointed to review criminal allegations against DePerno, others

Nessel's office and the Michigan State Police argue DePerno went beyond filing this lawsuit in his efforts to discredit the 2020 election. Earlier this year, the office of the attorney general revealed the existence of a criminal investigation that alleges DePerno and others illegally gained access to and tampered with voting machines from small, northern Michigan communities not in Antrim County. DePerno has repeatedly denied any misconduct, arguing the investigation was a political witch hunt.

Muskegon County Prosecutor DJ Hilson, a Democrat with more than 20 years of experience, was appointed to take over the case in September. As of November, he said his investigation was ongoing.

Contact Dave Boucher: dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.

This article originally appeared on Detroit Free Press: Michigan Supreme Court upholds Antrim County election case decisions