Michigan’s most infamous sheriff can now add another bullet point to his résumé: losing an election lawsuit in federal court.
Barry County Sheriff Dar Leaf gained nationwide notoriety in early October when he defended one of the men who allegedly conspired to kidnap Michigan Governor Gretchen Whitmer (D) over her stay-at-home order and other efforts aimed at protecting the health of the Wolverine State amidst the coronavirus (COVID-19) pandemic.
On Sunday, Leaf became the lead plaintiff in a federal lawsuit aimed at stopping Michigan election authorities from implementing a proposed document destruction schedule for various materials used in and compiled during the 2020 election.
“On December 1, 2020, the State of Michigan Bureau of Elections issued a memorandum to all county clerks from the Michigan Board of Elections mandating the destruction and deletion of software, data, files, materials, and other relevant physical evidence,” Leaf’s 12-page lawsuit explains. “This memorandum specifically directed all county clerks to destroy or delete data by December 7, 2020, with the exception of the few selected Michigan municipalities participating in an audit.”
The memorandum slots the following materials for destruction:
E-Pollbook laptops and flash drives: The EPB software and associated files must be deleted from all devices by the seventh calendar day following the final canvass and certification of the election (November 30, 2020) unless a petition for recount has been filed and the recount has not been completed, a post-election audit is planned but has not yet been completed,or the deletion of the data has been stayed by an orderof the court or the Secretary of State.
The terms of the memorandum relate to procedures adopted for the lone recount request–in a state house district race–received by Michigan after the “deadline for filing a petition for a recount with the Secretary of State elapsed on November 30, 2020.”
Leaf and his allies argued that “it is imperative that the data from all of the Michigan municipalities be preserved, otherwise it will have been long destroyed prior to legal action to address claims regarding an insufficient audit or other meritorious election claims.”
The lawsuit was premised on the idea that Michigan’s 2020 election was subject to “massive election fraud” and “multiple violations of the Michigan Election Code” which “resulted in the unlawful counting, or manufacturing, of hundreds of thousands of illegal, ineligible, duplicate or purely fictitious ballots in the State of Michigan.”
Notably, the lawsuit filed by attorney Stefanie Lambert reiterates the Dominion Voting Systems conspiracy theory but is generally light on details and evidence supporting the GOP’s election fraud claims.
“Immediate intervention in the form of injunctive relief is necessary to prevent the loss of election data and evidence needed to determine voter intent, any systematic fraud, and any criminal activity and/or civil liability,” the complaint argues–seeking an order to stop the proposed deletion schedule.
On Tuesday evening, the U.S. District Court for the Eastern District of Michigan denied that request based on the notion that the original complaint failed to comply with the Federal Rules of Civil Procedure. Or, in other words, because the lawyering was apparently not up to par.
Chief U.S. District Judge Robert Jonker explains:
Under [Federal Rule of Civil Procedure (FRCP) 65(b)], the court may issue a temporary restraining order without notice only if the court finds that “specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition” and “the movant’s attorney certifies in writing any efforts made 2to give notice and the reasons why it should not be required.” In this court’s view, [Leaf’s] application falls far short of meeting these standards.
“For one thing, it is not clear to the court whether [the GOP plaintiffs] have even commenced an action as contemplated by [the relevant federal rule],” Jonker continues. “There is nothing styled as a complaint. The most recent application asserts that this court has federal question jurisdiction under 28 U.S.C. §§ 1331, 1343 and that it involves “multiple violations” both of Michigan election law, as well as the ‘Election and Electors Clauses and Equal Protection Clause of the U.S. Constitution.'”
That, however, is not quite enough under federal pleading standards.
“[T]he application contains no specific causes of action, something that is fundamental to any complaint seeking relief. Rather, it contains only introductory comments, a section regarding subject matter jurisdiction, a section on the parties, and then proceeds straight to an analysis of [FRCP] Rule 65 and a request for relief. The applications are not verified either.”
A footnote also–decidedly brutally–spells out some of the other problems with Leaf’s apparently deficient legal filings:
On Sunday, December 6, 2020, Plaintiffs’ filed, via the CM / ECF system, a document entitled “Plaintiff’s Emergency Application For Restraining Order and Injunctive Relief and Combined Brief in Support” under the caption “In The United District Court Eastern Distrct [sic] of Michigan.” (ECF No. 1). An amended filing with the same caption was filed later that day. (ECF No. 2). A second amended filing was filed earlier this morning, this time under the caption “In the United States District Court Western Distrct [sic] of Michigan.” (ECF No. 3). The Clerk’s office filed all three documents in a new civil action, and the matter has been assigned to the undersigned.
Before attaching his name to the somewhat embarrassing federal lawsuit and ensuing court loss, Leaf appeared on stage with William Null, one of the men charged in the kidnapping conspiracy, at a rally to protest Whitmer’s public safety decisions. Leaf also spoke at that rally.
Asked by Fox 17’s Aaron Parseghian whether he regretted his affiliation with a man accused of trying to kidnap the state’s governor, Sheriff Leaf defended his former companion in remarks widely-criticized by various state officials, legal experts and even the typically law enforcement-reflexive Michigan Sheriff’s Association.
“Well, it’s just a charge,” he said. “And they say a plot to kidnap. And you gotta remember that–are they trying to kidnap? Because a lot of people are angry with the governor and they want her arrested. So, are they trying to arrest or was it a kidnapping attempt? Because you can still, in Michigan, if it’s a felony, you can make a felony arrest.”
Leaf was re-elected without opposition from the Democratic Party in November.
[image via Fox 17 screengrab]
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