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tv   Campaign 2020 Michigan Court Case Trump v. Benson  CSPAN  November 6, 2020 12:06am-12:56am EST

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public service, and brought to you today by your television provider. the michigan court of claims denied the trunk -- trump campaign to get more access to observe the mail-in ballot cap process today. the judge issued her verbal intent in a hearing conducted via zoom just two days after election day. decision onformal her reasoning was forthcoming. >> donald j. trump versus jocelyn benson in her official capacity as secretary of state. to make an initial -- emergency matters usually emerge in the middle of other matters. , it was filed:00
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with the court of claims. at the time it was filed there was a complaint, while it was a verified complaint, it did not have an affidavit affixed to it. it did not at that time have a request for a temporary restraining order attached to it. he did not have a request for relief attached to it. , the in the evening democratic national committee filed a petition to intervene. this morning, sometime around a set of supplemental papers were filed on behalf of the plaintiff, the first of which was something that and it was anence
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, and i will mispronounce the name. there was a file for injunctive relief. thatourt determined because of the nature of the -- that we would let parties come forward and say what they needed to say as we could. the court has not ruled on a petition to intervene filed on ,ehalf of the democratic party but did afford them the ,pportunity to file papers while the court made a standingtion of any and whether or not intervention would be granted.
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unfortunately one of my colleagues had no power so it took us about until 10:40. thatery apologetic about and appreciative of the patients of all the parties in this case. as you can imagine, i have donna speed read of the multiple pieces of paper that were filed. the defendant did in fact follow for the to the request brief and about two , minutes ago, the amici was filed , and i can tell you i have that in front of me, but i have not read it. the way i am going to proceed
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today, without reporting the proposed intervenors' intervention, because this will have to be managed today and fairly quickly, i'm going to give them the courtesy of brief oral comments, and i will give them that courtesy after the named party has spoken to whatever issues they deem appropriate. are we clear on how we are at least going to try to get through this? >> we are, your honor. with that we begin with counsel for the plaintiff. >> thank you. good afternoon. from the plaintiff's perspective, the relief we are asking the court to grant is very simple, is simply to direct secretary benson order that the election county authorities and the county board that are handling ballots allow challengers who are qualified under michigan statute to
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participate and observe that process. many of the ballots have, in fact, been counted. adjudication boards are still being convened. the request is simply that the named parties and their designated challengers be allowed to participate and meaningfully observe that process. >> i guess what i need to understand, in order for me to give injunctive release, i would have to first find that there is a threat of immediate harm. in order for me to make that determination that somehow you are being deprived of meaning will interpretation i've got to , make a fact-finding.
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i looked at the affidavit repeatedly, and the affidavit appeared to say to me that there was a person who had been approached by another human being who is unnamed, but described as a participant in the counting process, and that that individual who is unnamed was a participant in the counting process, gained information that indicated that there was some malfeasance going forward, so what i have is a hearsay affidavit, i believe, that addresses a harm that would be significant, but that's what we've got. we've got an affidavit that is not first-hand knowledge. if there is something in that affidavit that would indicate
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that the person observed activity that would be a deprivation of the rights of poll watchers i want you to , please focus my attention on that. >> i would indicate, attached to that was a note that this was an election inspector according to the affidavit that was handling the process and the ballots, that ballots that had been sent prior -- or after, excuse me, after november 4, after the deadline, were noted to be a ballot that was received timely -- >> i want to make sure i'm understanding you. is notican -- affiant
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the person who had knowledge of this, correct? >> which is commonly known as hearsay. >> i would not think that is hearsay. that is first-hand knowledge by the affiant of what she physically observed, and we included a physical copy of the note that she was provided. >> i'm going to see if i can pull up this physical copy of the note. [siren] while i'm doing that, you can continue your argument. >> your honor, thank you. the gist of what we are asking the court to do and where we have a concern is not just this specific instance, but what we are asking is that the michigan
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law, which has specific duties for challengers who are able to observe the processing of ballots -- >> who has said they have not been given that opportunity? did i miss that, too? >> that would be eric ostrich and, one of the named plaintiffs , who was excluded from the counting board. >> other than being a candidate, what is his status? >> he is not a candidate. he is a designated credential challenger, and he was removed from the counting board, and the allegation -- that is what he said, but in addition to that, the trump campaign has a right as a party and a candidate in this election to have challengers meaningfully participate, and that is what we are asking the court to correct
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and secretary benson to allow. >> what do you mean by meaningfully participate? what is it you believe they have not been afforded the opportunity to do that they have a legal right? >> i would refer the court to michigan statute and election code 168733. we quote it in our brief, and it provides the rights and responsibilities of election challengers, which means they have the ability to oversee or meaningfully observe the election inspectors processing the ballots in the conduct of the election, and that is what we are asking direction from secretary benson to the local counting board that they make sure they comply with this. i mean, i can go through the statute. i don't want to take the court's time to read it. we quote it at page 4 of our petition. >> ok. you made the statement.
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>> that is the relief we are asking the court to grant. to grant secretary benson to allow challengers by -- they can be democrat or republican, but they have meaningful opportunity to oversee and observe the conduct of the election and not to exclude them, but to allow them to see how the election inspectors are in fact processing these ballots, in authenticating them and adjudicating them. >> ok. i've gone back to your affidavit, and what i have is something that says received date as of 11/2 on 11/4.
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and it says that this was -- it doesn't say -- it says the individual who spoke with her was a poll worker with no name. >> that is correct, your honor. but when you read the affidavit, you will see that this person who is in fact herself a michigan attorney indicated that the poll worker indicated that this was in fact -- and she was directed to basically predate -- >> i'm still trying to understand why this is not hearsay. i absolutely understand that it is what the affiant says she heard, but the truth of the matter for what you're going for
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is that there was an illegal act occurring. because other than that, i do not know what is relevant to this. >> right, i would say, your honor, in terms of the hearsay point, this is a first-hand factual statement, and she has made that statement based on her own, first-hand physical evidence and knowledge. >> i heard somebody else say something. tell me why that's not hearsay. come on, now. >> it is a first-hand statement of her physical -- >> it is an out-of-court statement authored for the truth of the matter asserted therein. if the truth is that somebody told her something, not what they told her, that's one thing. you want me to find the truth or
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at least a scintilla of truth in what she says the contents of that communication was, right? >> what we are asking the court to do, your honor, is to, on the basis, again -- it's not based on -- the relief we are asking is not just based on this affidavit. the relief we are seeking the court to order secretary benson to direct election officials to allow observers and challengers in michigan counting jurisdictions as provided by michigan state law 16873 -- >> and i'm justifying they are not doing that in order for me to have a basis to tell them to do that. you want me to look at the complaint. you are telling me in certain paragraphs, i'm going to see that he says he was ousted. does he tell me the circumstances under which he was
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ousted? >> he was a designated, qualified challenger, and he was told to leave the counting board. that's the allegation that we make. that's the statement that we make. >> ok, you may proceed further. >> again, i come back to what we are asking the court to do -- and i know i said it several times, but it is simply to direct secretary benson to have the local election counting boards provide meaningful opportunity for challengers from the trump campaign as well as as -- frankly, the other parties are parties in this litigation, but we would be fine with the biden campaign or anyone else be part of the process, and that is the relief we are requesting. >> ok.
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your response from the secretary of state. i don't know who is responding, but -- >> i know the court is aware that we have filed a response. that response was to the emergency motion. for declaratory judgment that we received on november 4. we did not receive a motion for injunctive relief that was reportedly filed today sometime. i'm not sure what the pleading says and if it negates some of the response you have already provided. we have responded to the first motion. i don't have a second motion. >> what motion? the original complaint did not have a motion. >> the complaint we had was
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accompanied by an emergency motion for declaratory relief. >> we got a summons -- ok. all right. when was the request for injunctive relief served? on behalf of the plaintiff? >> your honor, if i could address that question, it was served both electronically on behalf of the plaintiffs to secretary benson as well as the others, and we also had a process server who tried to physically deliver it to the secretary of state's office, but the office was closed, and they could not get access, but, clearly, the secretary of state has copies. >> that is incorrect, your honor. we do not have a copy of a
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motion for injunctive relief. i have looked through my email. i'm happy to look at it. i'm just pointing out we filed a response to the initial motion, and that is what i can address today. >> i think what you are describing as the initial motion -- i got a summons and complaint, period. then i got additional papers this morning and a copy of a proof of service later this morning. i think we are substantively talking about the same thing. they just came in pieces. >> that could be, your honor. i don't know that it makes any difference. our argument would not be any different in the second motion as well as the motion for injunctive relief. as we said in our response, there are numerous defects and problems, and most significantly here, there really is not any release that can be preempted at
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this time. the county boards are done. we have finished counting 80 ballots in michigan, and so there is not any -- you know, there are no more counting boards functioning as far as challengers and inspectors reviewing ballots and processing right now. those functions are complete. to the extent that the plaintiffs are requesting that we halt the processing of ballots so that challengers to have some sort of opportunity to view the process, there is not any more opportunity to do so because the counting boards have completed their function. the ship has really sailed on the relief they are requesting in this case. we are talking about sort of a mootness argument.
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i'm also a bit confused today as to their argument about -- with respect to challengers, the basis of their pleading is that the challengers were being denied an opportunity to review surveillance video of the drop boxes. that is the basis of their complaint. in the marsh -- in the emergency motion that we read. they wanted some sort of opportunity to view surveillance video of drop boxes, so that is how we have addressed our pleading because that is how it was pled. i didn't hear any of that today. >> they did say in the second paragraph that the named plaintiff was removed. >> right, but if you look -- that's why these are confusing because they are pleading to talk about election inspectors of both parties not being present for various aspects of the counting board process.
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mr. ostergen is a counting -- is not an election inspector, he is a challenger. he does not explain where he was excluded from, which counting board, what day that happened, why he was excluded, and that does not even feed into his exclusion, for whatever reason, does not feed into the claims they have pled. their arguments are that election inspectors at both parties are not always present at the counting boards to review the process. that is what their claim is and that challengers are not having an opportunity. i'm just going on what the pleadings say, your honor. as the source of their alleged injury. it's not really matching up with the argument we are hearing from counsel this morning. again, at this point, it is all really moot because the counting board is complete. we've moved on to the second
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phase. results will be moving on to the county canvass. there is not any relief that can be given at this time with respect to halting this process and allowing challengers more review, or to fix some irregularity in not having inspectors of both parties serve some function. that is what we have consistently responded. if you even get down to the merits, there really is not anything to it. there is no right to review the surveillance video, and there is not really any kind of obligation that somehow an election inspector from both parties has to be present at the voting counting board. i just feel like there is a little bit of disconnect between
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what the pleadings say and some of the argument we have heard today. >> ok. on behalf of the post-intervenor, present amici. >> kevin hamilton for the democratic national committee. in the first place, i would like to thank your honor for the opportunity to appear. i will be brief. i believe the motion should be denied for several reasons. first, the plaintiff has failed to establish an actual controversy, which would be necessary to pursue a claim, for the simple reason that the factual record before the court does not support the relief sought. in any event, it is moot for the reason that the counting boards
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are largely complete now, so the relief is simply unavailable. on the first point, no evidence in the record would allow the court to conclude that the plaintiff has demonstrated a likelihood of success on the merits, which, as your honor pointed out a moment ago, is a necessary finding in order to enter injunctive relief here. the affidavit obviously is hearsay, your honor, at least single hearsay, perhaps double hearsay, and that is simply insufficient under any standard to justify relief. moreover, the standards we have outlined in our papers, and i know your honor has not had a chance to review those yet, the secretary does not operate these counting boards. the counties do. they are created and operated by local government. those local governments and counties were not named as defendants, nor could they have
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ben before this board because jurisdiction is limited. that is obviously a problem with the relief sought. on the merits, as counsel pointed out a moment ago, there is no right to video surveillance of voters casting ballots, if they are casting in person or at drop boxes, and counsel does not even really pretend otherwise. he cites no statute and no case law that suggests a voter or political party or candidate has a right to surveillance or view video surveillance of voters casting ballots. and in any event, even if there were some sort of factual record -- and there's not -- that might support the court in finding some kind of violation of the
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challenger's statute, michigan law provides a remedy for that. it's a criminal penalty. the legislature thought about that. what the legislature did not provide is any sort of statutory authority or -- for a court to conclude that some violation has occurred and therefore, you should stop the count or enter some broad injunctive relief. that is made about a whole cloth. again, plaintiffs don't identify any authority for that proposition at all, and it's not surprising. there just isn't any. there's a period of elections clause claim, and equal protection claim. neither of those find any support of the law. the trump campaign has asserted similar equal protections claims elsewhere in the course of this campaign. they have been uniformly rejected. a case in pennsylvania was
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similar related to restrictions on poll watchers and challengers. the court rejected it for exactly the reasons we are talking about here. it was based on a series of speculative events which falls short of the requirement to establish a concrete injury. i will not go through the other cases, they are cited in our brief, and you can look at them at length. for all those reasons, we think the motion should be denied. it is unsupported by the factual record. the only evidence before you was both irrelevant to the actual claims in the motion and the pleading, and hearsay, as your honor has already noted. the claims are unsupported by the law, and they name their own defendant. all of this is simply an effort to stop the counting of ballots cast by michigan voters who are fully entitled to vote and are fully entitled to have their
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ballots counted promptly and in accordance with michigan law, so there is no support of this motion. there is no support for this litigation. the motion should be denied, and the lawsuit should be dismissed. thank you. >> is there anything else you would wish to say, sir? >> no, other than -- >> i'm sorry. i should have said on behalf of the petitioner. on behalf of the petitioner, i just have a couple questions. i think it was last week that we had a case that was filed against the secretary of state regarding this "meaningful access." am i remembering correctly? >> there was a case about challengers. there have been many cases -- >> and that one was resolved by the parties. the question there was to have the secretary of state revise her instructions to the local
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election officials regarding issues of covid-19, and in that case, the question was how could the qualified challengers have meaningful access to execute their functions, and the parties entered into an agreement and a new directive was issued by the secretary of state to the local election officials regarding things like distancing, etc. that was a recognition that while the secretary of state has a future function in this electoral process, other than giving directives and intervening in specific circumstances where extraordinary relief is
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requested and warranted, the secretary does not conduct local elections, nor does the secretary's office have responsibilities for the initial ballot tabulation. so i need some help from you on how the parties against whom you have filed suit is a party who has the capacity to do what you have asked, even if it is warranted. >> thank you, your honor. yes. secretary benson is michigan's chief election official, of course -- secretary benson is michigan's chief election official. she does have the responsibility to oversee the conduct of the election. in fact, there was the western district of michigan federal
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case where they did in fact name secretary benson and they named a number of local election jurisdictions, and in that case, the secretary of state responded by saying the local election jurisdiction should not have been named, but she should be the sole defendant, and that is what was done. >> but what was the issue there? there have been so many. in every court of claims case, there has been two federal cases. there was a case filed regarding a mailing of absentee ballot applications. there was a case filed regarding the processing of absentee ballot application signator's, and a few others. i don't know what that case was about, but every case that i
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have had has been acknowledged, and it is my understanding of the law in the state of michigan that while she does provide supervision in a broader sense and while she does provide direction that it is not she who would be saying at precinct five you may approach the poll booth -- book and take it in your hands. you may not. she has issued a directive for what was described as meaningful access which enumerated the functions of of challengers and poll workers. she has issued that. >> that's correct. >> at best, what you gave me, the plaintiff says he was a
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credential lysed official and says he was ousted from a polling place but does not say where or when or in which circumstances. your affiant says another person came to her and told her that there was activity going on that was inappropriate. your pleading spoke in significant detail about what credentialized officials were supposed to do under the statute and speaks with great particularity about the ability to observe certain videotape. i'm in a quandary here. >> your honor, i will try to assist and clarify to the extent that there is an issue.
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what we are asking when we talk about the videotapes in the ballot boxes -- those are essentially equivalent to a polling place, and the statute that was adopted by michigan last month provides for video surveillance of those ballot boxes. the reason for that is to provide transparency of the election process so when those ballots are authenticated and counted that there is an opportunity to observe that, observe the casting of the ballots in these remote ballot boxes. that is the part of the complaint that asks that challengers have access to these videotapes, the video surveillance -- >> let me jump on -- jump in. when you were describing meaningful access, you wanted this court to order -- ignore the fact that counting is done, but you wanted this court to order that each and
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every videotape be presented to or be available for challengers prior to the counting of the ballots? >> that would be the request that we have, that the challengers have the opportunity to review the videotape, which is in the possession -- let me be even more precise, your honor. our request is that secretary benson issue a directive to the election jurisdictions making that video available so that challengers can have some transparency and observe the casting of ballots in these remote ballot drop boxes. >> ok, so, remote ballot drop boxes. fors your can permit that every dropbox there be a video , made of every dropbox, is that correct? >> that is what michigan statute provides. >> were the drop boxes --
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were they not placed prior to the passage of that statute? >> the statute makes it a distinction between drop boxes that were placed prior and drop boxes placed after october 1. the statute requires the video surveillance of the ballot drop boxes, and that requirement becomes effective, and i will quote it to you -- i just don't have it in front of me right now -- that is i believe october 1 and thereafter. all we are asking is that the challenger be able to review that video for those ballots that are processed out of those video drop boxes. judge stephens: as of this point, there is a dropbox. once the ballots are taken out of the dropbox, are they segregated based upon which dropbox they came from?
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>> there is other litigation by other parties that asks that they be segregated. so that you can identify what ballots came from what box and you can tie that back to a video. judge stephens: are you saying there was a statutory requirement that they be segregated? >> there is not a statutory requirement. judge stephens: are you alleging that there was a practice or routine where individual local election officials separated the boxes based upon which dropbox? >> the request we have -- judge stephens: that is not what i am asking you. i'm asking you as a matter of fact are you alleging that the , individual election officials had a practice that segregated the ballot per ballot dropbox? >> there are so many election
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jurisdictions in michigan. i cannot make a representation as to what each jurisdiction did do. judge stephens: we know -- maybe we know there were additional drop boxes added. i do not know if there were not. we do not know whether or not the content of those drop boxes as of october 2 were segregated from those there before october 1. we just know that somehow those ballots were taken from their secure dropbox to the local election official and at some point were processed. that is all we know, right? >> that is correct, your honor. i would add that we also know there was a legal requirement of
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having video surveillance. the reason we think that is important is because for a challenger, for one of the parties to have the kind of transparency we think elections in michigan -- to have that surveillance, to have the opportunity for a challenger to see that video is what we requested. in addition to having challengers present. this goes to the theme of the whole complaint that we have filed. to be able to have transparency. to be able to have challengers observe the casting of ballots. judge stephens: i understand that you believe the casting of ballots includes dropboxes, almost as if it were a drug deal follow the chain of custody, i , understand. is there something -- the parties don't seem to disagree.
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or maybe they do. do you have knowledge of dropbox -- drop boxes that were created post october 1? >> we do not. the secretary of state and the bureau of elections does not maintain or possess information about when a particular dropbox was installed by a jurisdiction. we would not know if it existed before october 1 or after october 1 necessarily. judge stephens: ok. all right. please continue. >> your honor, i come back to my central point. i have nothing further to really add to that. the request we have is that the challengers be able to access the process, be present in the processing of the ballots as provided in michigan statute and that includes to be meaningfully
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available to observe the process and what we mentioned on the drop boxes as they would have the ability to review the video of the dropbox as required -- required by michigan statute. judge stephens: i am going to assume and presume that the plaintiff's motive in filing are as they are stated to maintain the integrity of elections. i am presuming the respondents and the proposed intervenor shared those values. the issue in front of me is whether or not i would issue extraordinary and extensive relief based upon the record before me.
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the record before me, at best, is an assertion that the secretary of state had direct authority over the individuals -- individual precincts and polling places, the counting process, the transport of all ballots, the observation process during the counting of those ballots. that is a legal assertion. factually there is a claim that , there has not been an opportunity to observe videotapes of certain ballot
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dropboxes that were created after october 1 with no note as to where they are, who created them, nor a statutory assertion that it was the duty of the secretary of state to maintain a listing of those drop boxes so that she could actually order that the videotapes be presented if there is a legal right to do so. there is an allegation by the named individual plaintiff in this case that a qualified elector and credentialized poll official was at some point in time removed from the counting process.
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the circumstance is unknown. there is an affidavit that an individual, i am told a lawyer, member of the bar, was approached by another human being who was purported to be a poll worker and that human being told her that someone else told that poll worker to alter a date of receipt of a ballot from the day after the election to the day before the election. and that this occurred on november 4. the request for release as i understand it is going to be denied in a written order, which will not come out today. it will indicate that the basis for denial are these -- first,
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the secretary of state, the supervisor of elections, provides direction to the local official as to how they can comply with the laws of the state of michigan. she has issued such directives, particularly one in case before me which indicated that meaningful access and an outline of each of the obligations and opportunities and responsibilities of poll watchers was elucidated. access to videotapes was not a part of the access addressed because they were dealing with active polling places, i will acknowledge that. in this instance, where the issue is the day-to-day conduct
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of the vote count, the individual who bears that responsibility, absent the secretary of state removing them from their responsibility because of malfeasance, lied with the local election official. the relief is completely unavailable through the secretary of state. additionally, even if this relief were available, as opposed to when the suit was announced yesterday morning, it was filed at 4:00, at what -- at which point the count had largely proceeded. as of this point, the essence of the count is completed. in the relief requested to observe the videotapes is
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completely unavailable. the court would finally find that as to the one issue of which relief is arguably available, that on this factual record, i have no basis to find that there is success on the merits as it relates to this defendant nor am i convinced that there is a clear legal duty on the part of anyone to manage this issue. i will endeavor to get an order out no later than tomorrow afternoon when i have both an afternoon court of appeal case call and a full case court -- case call tomorrow morning. with that, thank you for your presentation, and would adjourn
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this matter where i leave -- i believe everyone here once to -- wants to have a fair election process. >> thank you, your honor. a look now and where things stand with the electoral map which has former vice president joe biden in the lead, with 264 electoral votes, compared to president trump's 214. the first to reach 270 will be declared the winner. at this point we are still waiting for final results from alaska, georgia, nevada, north carolina, and pennsylvania. here's a look at where the balance of seats in the u.s. house currently stand. as of thursday evening, democrats with 208 seats, republicans have 193, leaving democrats 10 seats short of holding the majority.
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34 house races remain undecided. continue to follow the vote election.on c-span.org/ use our interactive election night map, for the popular vote tally and a percentage of votes handed in undeclared states. see the result of every house and senate race and the current balance of power in congress. watch statements from president trump and joe biden as well as key victory and concession speeches and those from past elections. find it all at c-span.org/ election. on thursday, joe biden spoke in wilmington, delaware, as vote counting continued in battleground states. mr. biden said he is confident he and senator kamala harris will be declared winners of the election once all the results are in.

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