Judge rules Michigan law broadly bans 'undue possession' of voting machines

Lansing — Laying the groundwork for potential criminal charges in a high-profile case, Oakland County Circuit Judge Phyllis McMillen ruled Wednesday it is illegal for someone to take possession of a voting tabulator without authorization from the Secretary of State's office or a court order.

McMillen issued her 13-page ruling Wednesday, stipulating that a Michigan law barring "undue possession" of a tabulator wasn't limited to an ongoing election or to the period before results were tallied. Under state law, undue possession of a tabulator is a felony.

The decision was sought by Muskegon County Prosecutor D.J. Hilson, who's currently weighing whether to bring criminal charges against a group of supporters of Republican former President Donald Trump who allegedly obtained voting machines after the 2020 election as they advanced false claims of widespread voter fraud.

In August, Michigan Attorney General Dana Nessel's office named nine people who had allegedly conspired to gain improper access to voting machines. Nessel's office has previously said the group convinced local officials in three counties — Barry, Missaukee and Roscommon counties — to hand over five tabulators and then took the tabulators to hotels or rental properties in Oakland County.

There, members of the group broke into the machines, printing fake ballots and performing tests on the equipment.

At the time, Nessel was the Democratic incumbent running for a second term as attorney general against one of the nine people, Republican Matt DePerno. So she sought the appointment of a special prosecutor to decide whether charges should be brought.

Others in the group of nine included Barry County Sheriff Dar Leaf and then-state Rep. Daire Rendon, R-Lake City.

Nessel defeated DePerno by 9 percentage points in the November election.

In spring 2021, DePerno gave multiple interviews about a video from One America News that was posted on his law firm's website. The clip showed one of DePerno's cybersecurity experts, Jeffrey Lenberg, working with a Dominion Voting Systems tabulator and running ballots through it on May 3, 2021, in a Royal Oak apartment.

During a May 7, 2021, appearance on a podcast called "Dark to Light with Frank & Beanz," DePerno promoted the One America News report.

"What machine is he using? Is he using an actual Antrim County machine?" one of the podcast hosts asked DePerno about Lenberg.

"We can't tell you what machine he's using," DePerno replied. "But he's using a Dominion voting tabulator. And it's a tabulator that is of all the same specifications of anything that we would find in Antrim County. Same model. Same brand. Same programming. Same everything."

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According to an Aug. 5, 2022 letter from the Attorney General's Office to Secretary of State Jocelyn Benson, someone who hasn't been identified by authorities delivered a tabulator that had been taken from Lake City Township in Missaukee County back to the clerk on Sept. 10, 2021. The seal number on the machine was covered over with red tape in the same manner as the tabulator shown in the Lenberg video, according to Nessel's office.

DePerno didn't immediately respond Wednesday to a request for comment.

On Sept. 8, the Prosecuting Attorneys Coordinating Council announced that Hilson, a Democrat and Muskegon County's prosecutor, would handle the tabulator case. Since then, Hilson's office has been investigating.

As first reported by The Detroit News, a secret grand jury was convened earlier this year to consider charges in the case. After the grand jury was launched, Stefanie Lambert, another of the nine individuals named by Nessel's office, sent letters to Hilson, arguing that Michigan law "allows any person to have possession of voting tabulating machines if the possession was obtained by consent" of a clerk, according to court records.

Similarly, DePerno previously told The News the allegation against him "doesn't matter" because access to tabulators was given freely by local clerks. And Leaf, the Republican sheriff in Barry County, said in a September 2022 interview that local clerks have the "authority" to hand over voting equipment to outside groups.

Leaf's department had launched a probe into unproven claims of election fraud in his west Michigan county, where Trump won 65% of the vote but lost the state to Democrat Joe Biden. Irving Township Clerk Sharon Olson indicated that she had been asked by Leaf to cooperate with the investigation and she later turned over a tabulator to a third party, according to the Attorney General's Office.

Asked in September if he encouraged Olson to hand over her tabulator, Leaf replied, "No. That didn't happen."

But moments later, he added, "You understand that the clerk has that authority, right? ... Yeah. Even to a third party. That's in the election law."

In March, Hilson sought an Oakland County judge's ruling on whether a court order or "other legal process" was required to possess a tabulator in Michigan, according to court filings.

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Hilson's office has suggested that the court ruling would precede a final decision on charges.

"The police investigation is now sufficiently complete and a charging decision is ready to be made by the charging entity and therefore, the parties require clarification of the law to determine whether a clerk has the legal authority to permit any person to take possession of voting tabulating machines for any purpose," past court records filed in Oakland County said of the situation.

Michael J. Smith, the lawyer representing Lambert, didn't respond Wednesday to a request for comment.

It wasn't immediately clear how McMillen's decision would affect the timeline for a charging decision.

Mark Brewer, an election lawyer and former chairman of the Michigan Democratic Party, said McMillen interpreted the law in question correctly.

“I would hope and I would think that there would be indictments soon, as there should be," Brewer said.

cmauger@detroitnews.com