2020 Election Lawsuits: Ostergren v Benson
In 1787, Alexander Hamilton, John Jay, and James Madison wrote a series of essays in support of the Constitution called the Federalist Papers. The first essay, entitled a General Introduction and written by Hamilton, discusses the motives of individuals who choose to enter public affairs, and human nature more generally.
[A] dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious (overly attentive) court to the people; commencing demagogues, and ending tyrants.
243 years after Hamilton wrote these words, and two hours prior to the Associated Press announcing that Joe Biden won the Presidential election in the state of Michigan, an attorney for the Trump campaign, who calls himself “Thor”, files a lawsuit in the Michigan Court of Appeals to request that the state stop counting votes for the 2020 Presidential election.
The issue at hand is based on the accusation of Eric Ostergren, a credentialed and trained election challenger, who claims that the Oakland County counting board excluded him from performing duties bestowed upon him by Donald J. Trump for President, Inc., the other named plaintiff in the case Ostergren vs (Michigan Secretary of State) Benson [1].
What is missing from Mr. Ostergren’s accusation is any details of how he was excluded from completing his duty as an election challenger — things like when, where, why, or by whom this assault on our democracy took place.
Unabashed by this fact, Thor plows forward with the lawsuit.
Moments after the complaint is filed, a group of GOP challengers gathers outside the TCF Center, where absentee ballots were being counted, demanding to enter [2].
The purported preponderance of evidence put forward by the plaintiffs did not end with Mr. Ostergren’s claim of unnamed saboteurs. Thor and the Trump campaign present two other pieces of evidence based on the sworn affidavit of Jennifer Connarn [3], a poll challenger who worked at a ballot counting location in Wayne County, separate from Oakland County where Mr. Ostergren found himself being a pawn in the perpetrated manipulation of our country’s election.
Ms. Connarn’s affidavit reads like a dramatic day in the life of a middle schooler. She spoke with a poll worker at TCF Center in Detroit. This poll worker, who, like Mr. Ostergren’s mystery counting board member, remains unnamed in court documents, was “nearly in tears because she was being told by other hired poll workers at her table to change the date the ballot was received when entering ballots into the computer.”
In her quest for truth, Ms. Connarn approached the (unnamed) bully poll worker who made the first poll worker emotional. The bully poll worker “stated to me that she was being told to change the date on ballots to reflect that the ballots were received on an earlier date. I went to inform a(n unnamed) supervisor of this, and I was asked to get the poll worker’s name. When I went back to the poll worker’s table, I was yelled at by the other poll workers working at her table, who told me that I needed to go away and that I was not allowed to talk to the poll worker with whom I spoke earlier.”
To back up her claims of election malfeasance, Ms. Connarn produced the smoking gun — a sticky note that states “entered receive date as 11/2/20 on 11/4/20” (Michigan law stipulates that ballots must be received by Election Day on 11/3/20).
Side (not sticky) note: Have you ever made a “reverse to-do list”? One where you complete a task and then write it down in the past tense indicating that it is already complete? Be wary if so — the past tense indicates that you have committed the act, and if that act is illegal, is a de facto admission of guilt.
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The plaintiffs do not attempt to draw the connection between the events expounded upon by Ms. Connarn in Wayne County and the experience of Mr. Ostergren in Oakland County. To distance himself from claims made in the complaint and provide himself legal cover, Mr. Ostergren signs the below statement in one of the official court documents (emphasis mine) [1]:
I, Eric Ostergren, being first duly sworn, depose and say that I am a resident of the state of Michigan and duly qualified as a voter in this state. While I may not have personal knowledge of all of the facts recited in this Complaint, the information contained therein has been collected and made available to me by others, and I declare, pursuant to MCR 2.114(B)(2), that the allegations contained in this Complaint are true to the best of my information, knowledge and belief.
Mark (aka Thor) Hearne, the attorney for the Trump Campaign, has had a seemingly illustrious career as a lawyer, serving as national election counsel to President George W. Bush in 2004 and advising the Carter-Baker Commission on Federal Election Reform in 2005 [4][5].
Ostergren v Benson will not be among his greatest accomplishments.
In the hearing held on November 5, Thor meanders through a series of requests unrelated to the affidavit and sticky note presented in the case. Asking the court to order Secretary of State Benson to allow election challengers “meaningful access” to review video of ballot drop boxes installed by the state leading up to the election, the plaintiffs offer no evidence indicating this capability was denied, nor any law or case precedence indicating that such access is required [6].
The judge is Hon. Cynthia Stephens, who has sat on the bench since 1981 and was nominated to Michigan’s Court of Appeals by a Democratic governor [7]. In 2005, she was awarded the Roberts P. Hudson Award, considered the highest honor given by the Bar Association of Michigan, for her “unselfish rendering of outstanding and unique service to and on behalf of the State Bar of Michigan, the legal profession, and public.” [8]
Judge Stephens is not impressed by the evidence. Calling Ms. Connarn’s affidavit hearsay and noting the unknown circumstances around the ousting of Mr. Ostergren from the Oakland County counting board, Judge Stephens denied the plaintiff’s request for relief and the case is dismissed.
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What Ostergren v Benson shows is not a conspiracy of voter fraud, but rather a need to evaluate an electoral system which requires individuals to be affiliated with a party to be included in the administration of the election. Such a system invites conspiracy theories as the losing party can simply blame the motives of those in the party that wins. The Democrats tried that in 2016 (damn Russians), and the Republicans appear to be doing that in 2020 (damn Democrats).
As an article published in The Economist from September explains:
America is unusual in the degree of power it gives to Republican and Democratic partisans to administer elections. Decisions over who is removed from lists of eligible voters when they are updated, the design of ballot papers, where polling stations are situated, whether early voting is allowed and how many people have to witness a postal vote — things which in other mature democracies are in the hands of non-partisan commissions — are all taken by people with a D or an R by their name. If the election is close then all this will be litigated over, and ultimately end up in courts presided over by judges who have also been appointed by Republican or Democratic governors and presidents (emphasis mine). [9]
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The Trump campaign recognized the inherent bi-partisanship of our election administration, and is attempting to use it to their advantage by conjuring up conspiracies in the most 2020 way possible. The act of filing a lawsuit — no matter how little merit it has — sows the seeds of distrust within Americans about how our elections are conducted. Tweet storms that have little to do with actual issues facing Americans stoke anger among the electorate.
Making clear headed decisions in the midst of a pandemic, economic crisis, and social unrest becomes more difficult when “leaders” of our nation consciously fuel anger and distrust among our family, friends and fellow countrymen and women.
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To quote the final paragraph of the essay of the Federalist Papers called Concerning Dangers Between Dissensions Between the States:
America, by the destructive contentions of the parts into which she was divided, would likely become a prey to the artifices and machinations of powers equally the enemies of them all. Divide et impera (Divide and command) must be the motto of every nation that either hates or fears us.
The consequences of the actions of the outgoing President are unknown, and unknowable, as we are only weeks after the election.
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The legislation that dictates how we conduct elections is The Help America Vote Act (HAVA), passed in 2002. Part of HAVA established the Election Assistance Commission (EAC), a supposedly independent agency of the US government charged with conducting research and “serv[ing] as a national clearinghouse and resource for the compilation of information and review of procedures with respect to the administration of Federal elections.” [10]
Who serves in this Commission is dependent on party affiliation. The leaders of the EAC are four commissioners, with a maximum of two from any one political party. The individuals charged with nominating these commissioners are the Majority and Minority Leader of the Senate as well as the Speaker and Minority Leader of the House of Representatives.
The EAC also consists of a 110-member Standards Board, with two representatives from each state/territory. Section 213(a)(3) of HAVA requires that “the two members of the Standards Board who represent the same State may not be members of the same political party.”
Unsurprisingly, HAVA passed in overwhelmingly… bi-partisan… fashion — 357–48 in the House and 92–2 in the Senate. [11]
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We could succumb to the narrative being forced down our throat by sore losers. What might be more productive is considering — and ultimately implementing — reforms which remove partisanship from the electoral process, de-emphasizing loyalty to the party and re-prioritizing the interests of regular Americans. Doing so will create a more robust system resistant to people, no matter the letter next to their name on the ballot, interested in manipulating the status quo for personal or political gain.
I would be lying if I claimed to have a firm grasp on the content of those possible reforms. Two resources I’m trying to learn from are listed below.
Harvard Business Review: Fixing US Politics
The Atlantic: What If the Parties Didn’t Run Primaries?
Both recommend “jungle primaries”, in which “all candidates for the same elected office, regardless of respective political party, run against each other at once, instead of being segregated by political party.” The top two (or three, four, or five) vote-getting candidates would then face off against one another in the general election.
According to Harvard Business Review, more than 80% of US House seats are determined by the party primary (e.g., in “blue” districts from Massachusetts or “red” districts from Indiana), while less than 20% of voters participate in midterm congressional primaries [12]. If done appropriately, jungle primaries loosen party control from the process, and render party loyalists’ influence equal to their numbers in the population as a whole.
Whatever the details, I think it is fair to expect regular Americans to participate in elections as we do juries. How to implement this in practice requires deep consideration and examination of who we are and who we want to be as a country.
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Before engaging in a rational discussion on the advantages and disadvantages of possible cures to what ails our political system, we need to build a common understanding of the root causes. While the Trump campaign may understand what these issues are, they do not have any interest in solving them.
I come to this conclusion based on the lack of relevant evidence presented in Ostergren v Benson, combined with rhetoric riddled with opinions and hot takes that hold too much stature in our public discourse (<< a problem on both sides of the aisle, by the way). We must demand a level of curiosity and humility of our public servants that encourages mature deliberation, no matter who the solution comes from; we’re in too serious of a situation in our history to expect anything less.
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In Hamilton’s General Introduction, he follows his observations on despotism, demagogues, and tyrants with this paragraph:
In the course of the preceding observations, I have had an eye, my fellow-citizens, to putting you upon your guard against all attempts, from whatever quarter, to influence your decision in a matter of the utmost moment to your welfare, by any impressions other than those which may result from the evidence of truth.
Sources
[4] https://truenorthlawgroup.com/thor-hearne/
[5] https://www.uscfc.uscourts.gov/mark-f-hearne-ii
[6] https://www.youtube.com/watch?v=ELnXCQcjgWQ
[7] https://courts.michigan.gov/courts/coa/judges/pages/biosd1.aspx
[8] https://www.michbar.org/programs/hudsonaward
[9] https://www.economist.com/leaders/2020/09/03/americas-ugly-election
[10] https://www.eac.gov/sites/default/files/eac_assets/1/6/HAVA41.PDF
