By Bob Ortega, Curt Devine, Yahya Abou-Ghazala, Audrey Ash and Drew Griffin, CNN
Updated: Thu, 22 Sep 2022 23:16:37 GMT
Months after Joe Biden's 2020 victory over Donald Trump in Michigan had been certified, and confirmed by audits and voting reviews, a clerk in rural Barry County received an unusual and confusing request from Matthew DePerno, an attorney in Kalamazoo.
DePerno, who'd filed a lawsuit on behalf of a local resident claiming voting-machine fraud in Antrim County, more than 200 miles to the north, sent the clerk a subpoena demanding access to her county's voting equipment, election tapes, logs -- and ballots, which had been sealed and stored after the election.
"It was totally random," Pam Palmer, the clerk, told an attorney for the county, in a March 17, 2021, email obtained by CNN through a public-records request. In another email later the same day, she added, "He informed me that I do need to collect the ballots which are under seal at this point, and not to be opened for 22 months. He informed me they will be opening the ballot bags & resealing them."
Palmer is among at least eight county clerks who received DePerno's subpoenas, including in counties that didn't even use the Dominion Voting Systems machines at issue in DePerno's lawsuit.
DePerno's subpoenas were ultimately rejected by a judge -- but his attempt to get sealed voter ballots helps show how far he's gone to challenge the results of the 2020 presidential election.
His relentless efforts have landed him at the center of an investigation by a Michigan special prosecutor into whether DePerno and eight others illegally tampered with voting machines in the state.
And still, as the Republican nominee to become Michigan's attorney general, DePerno continues to sow doubts about the reliability of voting machines and the election process among voters -- and among local government officials who'll play a role in certifying this November's election results in their towns and counties.
But DePerno's impact reaches far beyond Michigan. His original false claim -- that Dominion machines connected to the internet initially flipped conservative Antrim County to Biden in 2020 and that, therefore, machines similarly flipped votes elsewhere -- sprouted like a fairy-tale magic bean into demands for audits and baseless claims of vote fraud across the US.
His claims have been repeatedly, thoroughly debunked. But that fairy tale continues to stoke demands that voting machines be scrapped and the vote in November's midterms be counted by hand. It's cited by MAGA candidates who warn of fraud to come and claim that Democrats can only win if they cheat.
Ten out of 30 attorney general races nationwide -- including DePerno's bid in Michigan -- have an election denier on the ballot, according to a recent report by the States United Democracy Center, a nonpartisan group that works on election issues. The group also found that candidates who deny that Biden won in 2020 will be on this November's ballot in half the races for governor and 44% of the races for secretary of state. In three states -- Alabama, Arizona and Michigan -- GOP election deniers are running for all three top positions.
"What this could lead to long term is because this is so divorced from reality, people all over the country believing that any election in which their candidate does not win is stolen," said David Becker, director of the Center for Election Innovation and Research, a nonpartisan group that works to ensure accessible and secure elections. "And you can imagine what this does to the fabric of democracy."
The 'fishing expedition' that had legs
When DePerno sent the subpoena to Palmer, seeking the voting machines and records, he told her he was sending a team to unseal and examine her county's ballots, according to emails obtained by CNN.
Palmer's attorney asked the judge to toss out the subpoena or at least to require DePerno and his client, Bill Bailey, to "guarantee that Barry County equipment will not be altered, damaged, or compromised in any way" and "to show that each individual on his inspection team" had proper training and credentials to offer the same guarantee.
In April 2021, Circuit Court Chief Judge Kevin Eisenheimer quashed the subpoenas as a "fishing expedition," saying that DePerno needed "more than mere conjecture, more than speculation," to support his request. In May, Eisenheimer dismissed DePerno's suit.
But that didn't end the effort. In June, investigators for Barry County Sheriff Dar Leaf, a DePerno ally, began questioning township clerks in the county about the 2020 election. A call from one worried clerk led Palmer to confront a deputy and another investigator at the Carlton Township offices -- only to discover the investigators had told clerks not to talk to one another or to her "because they want the element of surprise," she told an attorney for the county, Allan Vander Laan, in a June 14, 2021, email previously reported by The Detroit News.
Vander Laan responded, "Are they trying to get what they could not get by subpoena? Do not give them records. Do not allow them access to ballots."
"I am livid!" Palmer wrote. "This is a fishing attempt ..."
Meanwhile, DePerno falsely argued in July 2021 that ElectionSource, a company doing routine maintenance on Michigan voting equipment, planned to "destroy election data," and sent the company a letter threatening a lawsuit, a company representative emailed county officials.
DePerno's "misinformation campaign is dangerous not only to my staff but to your clerks as well," wrote Steve Delongchamp, vice president of ElectionSource, in a July 14, 2021, email to several clerks. "We have received many threatening calls from individuals that have no concept of how elections work."
Despite initially agreeing to speak to CNN, DePerno ultimately refused to comment for this story.
DePerno's history with 'frivolous' litigation
Long before he dove into the 2020 election fraud claims, DePerno had established a troubling track record -- from clients who sued him for overbilling and malpractice to getting involved in the years-long case of a Michigan lawmaker involved in a sex scandal, who attempted to cover up an alleged affair with another legislator.
DePerno's relentless, litigious approach to these cases and others earned him heavy professional criticism -- which he consistently has denied.
DePerno "is litigious in an unnecessary way," said former state Circuit Judge William Buhl, who asked the Michigan Attorney Grievance Commission to investigate DePerno in 2016 in relation to the malpractice case. "Many of the things he raises are frivolous, and people have to go through the trouble of answering them ... DePerno does it just as a matter of course, even if there is no merit to it."
The grievance commission did not make its findings public. DePerno has called Buhl's accusations "total nonsense" and claimed the matter was "ultimately dismissed" by the grievance commission, "as it should be," according to Bridge Michigan.
Even so, his reputation as a no-holds-barred litigator made him a key player in Antrim County -- where he quickly helped stoke claims of fraud after the 2020 election.
Antrim County claims were 'indefensible'
On election night in 2020, human error led to early, unofficial results being released that showed Joe Biden ahead in the conservative rural county in northern Michigan. The mistake was quickly caught and corrected; it didn't affect ballot tabulation or official results, which showed Trump easily winning the county, according to state officials.
But with Trump having claimed for months that only fraud could prevent his reelection, he and allies were quick to leverage the error. Three weeks after the election, DePerno filed a suit alleging vote fraud, placing the blame on Dominion voting machines and asking a state judge to allow him to take images of Antrim County vote tabulators.
The charade fueled Trump ally and former Overstock.com CEO Patrick Byrne to send a team of researchers to the county to dig into the fraud allegations. Those researchers quickly produced a report that claimed Dominion voting machines were "intentionally and purposefully designed with inherent errors to create systemic fraud and influence election results."
That report was used as purported evidence on multiple legal fronts: DePerno filed it as an exhibit in his lawsuit and Trump attorney Sidney Powell cited it in a December 13, 2020, petition to the US Supreme Court, as part of an effort to overturn the election results.
It didn't work -- and the report was roundly discredited. A GOP-led investigation by the Michigan Senate Oversight Committee in June 2021 called the false Antrim claims "indefensible." Former US Attorney General Bill Barr testified to the January 6 committee that the report was "amateurish" and said that to believe it, Trump would have to be "detached from reality."
Even so, the report on Antrim County has become foundational to the fiction that Dominion machines around the country secretly flipped votes -- bolstering several high-profile attempts to challenge the 2020 elections results. Among them:
Members of Byrnes' team who worked with DePerno in Antrim County included Cyber Ninjas CEO Doug Logan, who led the widely-ridiculed audit in Maricopa County, Arizona, that failed to prove any vote fraud. Ben Cotton, one of DePerno's cybersecurity consultants and also part of that audit, testified that "he forensically examined Dominion Democracy Suite voting systems" in Maricopa County, Antrim County, Colorado's Mesa County, and Georgia's Coffee County, according to court documents. Logan and Jeffrey Lenberg, another analyst who produced a report filed in DePerno's Antrim lawsuit, were filmed entering the Coffee County, Georgia, election offices weeks after a breach into voting equipment there that is now under criminal investigation. Lenberg claimed this month that he and Logan only helped "direct" the "testing" of voting systems there. Another member of the Antrim team, Conan Hayes, is being investigated by the FBI in connection with efforts to gain improper access to voting equipment in Colorado, according to a subpoena for the phone of MyPillow founder and prominent election denier Mike Lindell.
Logan and Hayes didn't respond to CNN's requests for comment.
DePerno's aggressive hunt for voting machines after the Antrim report also led to trouble. At the request of Michigan Attorney General Dana Nessel, who faces DePerno in her own run for reelection, a special prosecutor was appointed this month to investigate an alleged criminal "conspiracy to unlawfully obtain access to voting machines" in three Michigan counties by DePerno, Barry County Sheriff Dar Leaf, Logan, Cotton, Lenberg and others.
In her letter requesting the special prosecutor, Nessel alleged that DePerno was "one of the prime instigators of the conspiracy," which got clerks to improperly turn over five tabulators that Logan, Cotton and Lenberg broke into in DePerno's presence. One of those tabulators appeared to be featured in a video posted on DePerno's website last year.
Stephanie Lambert, an attorney who is also named in Nessel's request for allegedly helping coordinate a plan to gain access to voting tabulators, responded to CNN on Cotton's behalf. She called Nessel's request a "political witch hunt," and said Cotton and the others named in the letter "have not violated the law." Lambert said Cotton "has performed work at the request of my law firm."
Leaf, the sheriff, allegedly persuaded the Irving Township clerk to turn over a tabulator to DePerno's allies. Leaf told CNN that state authorities took the tabulator before his team could review it, which he said made him "very angry." At least one of Leaf's deputies also filed public-records requests last spring to various townships to inspect or copy electronic drives and vote records from the 2020 election. That led Lori Bourbonais, director of election administration in Michigan's Bureau of Elections, to remind clerks that absent a court order or warrant, voting equipment was not to be turned over to any third parties.
As those efforts played out, DePerno repeatedly touted his supposed Antrim findings not only on the campaign trail but in a variety of far-right venues, including on Steve Bannon's "War Room" program and in appearances with Mike Lindell.
Michigan Secretary of State Jocelyn Benson said she believes DePerno has been part of a coordinated effort to undermine the validity of the last election and to sow doubt about future elections -- with a particular focus on Arizona, Georgia, Pennsylvania and, of course, Michigan.
"This is a nationally coordinated effort to try to disrupt a democracy that has been going on since 2020 and is multifaceted and is continuing," she said, "and I think will continue through 2024."
False narrative about voting machines continues
The relentless focus by DePerno, Trump and others on attacking voting machines has created a reality-defying belief within the MAGA world: that voting machines can't be trusted and ballots should be counted by hand.
The idea shows up in places like Leelanau County, in northwest Michigan. In August, echoing the doubts repeatedly raised by DePerno, more than 100 residents petitioned the county board of commissioners to remove "all computer controlled voting machines" unless certain conditions were met.
The demand followed months of public debate there. In April, Leelanau County Sheriff Mike Borkovich lent his moral support to that effort, emailing one of its supporters, "I do think that fraud occurred during the 2020 Election ... I have NO MORE FAITH in the DOMINION VOTING MACHINE SYSTEM, and I never will from here forward." The email was first reported by the Leelanau Enterprise. Borkovich was elected sheriff in that same 2020 vote.
When, at this month's board meeting, county clerk Michelle Crocker insisted that county election equipment is "safe and secure" and that ballot-counting machines are not connected to the internet, one county commissioner immediately rejected that explanation. "I think the problem is with the machines," said commissioner Debra Rushton. "I don't know how we can rely on those results when they are hooked up to the system."
It isn't just Leelanau County. This month, the Macomb County Republican Party and a township clerk in Barry County cited DePerno's claims in asking a federal court to order Michigan's governor to rerun the 2020 presidential election.
And it goes beyond Michigan. After the June primary in New Mexico, for example, the Republican-controlled Otero County Commission refused to certify the results, citing worries about Dominion voting machines. Commissioners only validated the vote under court order.
MAGA-leaning groups or candidates have filed lawsuits in at least half a dozen states seeking to block the use of voting machines this November. And in Nevada, Republican Secretary of State Barbara Cegavske issued a temporary regulation Aug. 26 allowing county recorders to count ballots by hand instead of using machines, at their discretion.
Experts say hand counting votes is no panacea. Becker, of the Center for Election Innovation and Research, noted that hand counting ballots "is not only much more expensive and takes much longer, but it's also much less accurate than the system we currently have in place."
Notably, both in Georgia and in Arizona's Maricopa County, hand recounts of the 2020 presidential results confirmed the machine counts, and Biden's wins. But that doesn't seem to matter. DePerno's legacy of doubting voting machines and rejecting the legitimacy of results has taken on a life of its own, with election-denying GOP candidates across the country claiming the Democrats can only win by cheating.
"More than half the country has an Election Denier running to oversee their elections," Joanna Lydgate, chief executive of States United told CNN. "If even one of these candidates wins in a single state, that's a five-alarm fire for our democracy."