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

·6 min read

A Michigan appeals court made quick work of efforts to review an election conspiracy case from Antrim County, unanimously dismissing most of the arguments made by lawyer and Republican attorney general candidate Matthew DePerno.

It's the latest ruling from a Michigan court turning back legal efforts by supporters of President Donald Trump who continue to claim — without proof — that there was widespread misconduct in the 2020 presidential election.

Matthew DePerno, Republican candidate for Michigan attorney general speaks outside before a Save America rally at the Michigan Stars Sports Center in Washington Township on April 2, 2022.
Matthew DePerno, Republican candidate for Michigan attorney general speaks outside before a Save America rally at the Michigan Stars Sports Center in Washington Township on April 2, 2022.

The three-judge Michigan Court of Appeals panel issued an order Thursday indicating it agreed that a lower court was right to dismiss DePerno's lawsuit, pointing to a series of issues with both DePerno's legal tactics and pleadings in a case that drew national attention.

More: GOP AG candidate: Every Michigan voter should have right to election audit

More: Trump hammers at false claims of voter fraud in return to Michigan

"(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.

Michigan Attorney General Dana Nessel and Secretary of State Jocelyn Benson heralded the decison. Nessel's office argued against DePerno on behalf of the state, telling the appellate judges the trial court correctly dismissed DePerno's lawsuit.

“This decision joins a growing number of court rulings that continue to uphold the legitimacy and accuracy of our elections," Nessel said in a statement.

"As we have remained from the very beginning, my office is committed to preserving the integrity of our democratic system. The panel’s ruling is additional reinforcement in this important fight.”

Benson has repeatedly defended the efforts of the Antrim County clerk and others who've faced unsubstantiated allegations of fraud or misconduct.

“This dismissal once again affirms not only the integrity and accuracy of the 2020 election results, but that those claiming otherwise will not be able to use our legal system as a vehicle for furthering their misinformation and conspiracy theories," Benson said in a statement.

"The court’s ruling is a heartening reminder that despite ongoing efforts to dismantle our democracy and make it easier to overturn future elections, the data, the facts, and the truth are on our side.”

The appeals court did determine the trial court dismissed the case for the wrong reason, saying even though DePerno's case was doomed and he could not get the relief he wanted, that the lower court improperly decided his claims were moot.

But the appeals court determined, "we will not reverse a trial court’s decision when it reaches the right result, even if for the wrong reason."

In a statement, DePerno seized on this portion of the appellate court's opinion while vowing to appeal to the Michigan Supreme Court.

"I appreciate the appeals court agreeing that the lower court erred and look forward to taking this fight to the state Supreme Court. I will continue to fight for election integrity at the highest levels and that includes as attorney general of Michigan," DePerno said in a statement emailed Thursday afternoon.

An initial error in reporting the election results in the rural northern Michigan community initially showed President Joe Biden defeated former President Donald Trump. But the clerk quickly fixed the problem, rightly showing Trump won the heavily conservative area and affirmed those results with a hand recount.

But DePerno, representing local resident William Bailey, filed a lawsuit in a local court, making a series of sweeping allegations of fraud. With a judge allowing DePerno and a team to conduct "forensic imaging" of ballot tabulators, the case became a rallying cry from Trump and supporters who incorrectly argued the 2020 election was stolen.

The trial court eventually dismissed DePerno's case. DePerno appealed, suggesting the court's decision was premature.

But the Court of Appeals agreed with the trial court's ultimate decision, although it suggested its rationale for dismissing the case was slightly flawed. The appellate court ultimately determined DePerno and his client do not have a right to perform their own audits, as DePerno suggested while pleading before the court recently.

"The statutory language does not allow private citizens to conduct independent audits, and we are not permitted to read words into the plain language of a statute," the appellate order states.

More: Judge dismisses Antrim County election fraud lawsuit

More: Michigan Republican-led investigation rejects Trump's claim that Nov. 3 election was stolen

The court doubled down on the idea that DePerno and his client failed to present evidence of voter fraud, or how the alleged fraud specifically violated anyone's rights.

"(DePerno's client) alleged in the complaint that he was deprived of his constitutional right to vote in the November 2020 election due to Antrim County’s 'rampant and systematic fraud,' which resulted in his vote not being 'valued.' However, (DePerno's client) failed to plead allegations to support that he was intentionally and arbitrarily discriminated against ... or that Antrim County failed to implement the minimum procedures necessary to protect the fundamental right of each voter," the opinion states.

"Rather, as already stated, (DePerno's client) made generalized assertions to the trial court that election fraud occurred and that he should be provided with discovery in order to determine the extent of the fraud. Additionally, (DePerno's client) did not allege that he was treated differently than similarly situated individuals, which is necessary to establish an equal protection claim."

The court also rebuffed DePerno's attempts to argue the Secretary of State's audit of the Antrim County results violated the Constitution, noting DePerno never raised that issue at the trial level. It was one of many new, factual claims DePerno asked the appellate court to consider in the case — generally, lawyers are not permitted to introduce new arguments at the appeals level if they were not first presented at the trial court level.

DePerno previously billed the hearing as a key step in his ongoing campaign to allege rampant misconduct in the 2020 election. He's one of three Republicans vying for the party's endorsement at a statewide convention this weekend.

DePerno's running on a platform that heavily features his Antrim County lawsuit, broadly vowing to continue to litigate the legitimacy of the 2020 election. That has earned him Trump's endorsement in the race.

His opponents — former House Speaker Tom Leonard and state Rep. Ryan Berman — have criticized his efforts. Leonard has accused him of essentially misleading grassroots activists and Berman has repeatedly noted that DePerno's allegations of voter fraud in Antrim County are incorrect.

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 appeals court dismisses DePerno's Antrim Co. election claims