MFE Note: Patriotism comes in many sizes and flavors! Read of the persistent and brave work of a woman who well understands the reason for the Freedom of Information Act – transparency and accountability to the people whom elected officials serve.
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Article by Randy Schiffer | July 16, 2024
During the tense and sweltering summer of 2023, a cascade of Freedom of Information Act (FOIA) requests were catapulted into the mail inboxes of multiple clerks across western Michigan. These FOIA requests sought critical election data including voter registrations and extractions from the official Michigan voter database, i.e. the Qualified Voter File (QVF). What was especially noteworthy was the escalation to and involvement of the highest offices in Michigan, namely the Secretary of State and Attorney General. During this period, Shelly Lake filed three lawsuits and won favorable outcomes in all three with an undefeated score of three to zero.
Barry County, a relatively small county in western Michigan, is home to a total population of just more than 60,000, and resident Shelly Lake submitted Freedom of Information Act (FOIA) requests for election data. A few of the township clerks in the county, despite federal transparency laws to the contrary, appeared to bow to the guidance of Michigan’s Secretary of State (SoS) Jocelyn Benson and ignored Lake’s requests for data that is legally available to the public.
While the journey may have started out with Benson issuing “guidance” under the auspices of directives, it was Lake who ended up winning
Barry County FOIA Submission
On July 26, 2023, Lake submitted a written request for information to Barry County Clerk Pamela Palmer. The FOIA submission requested an electronic copy of the vote tallies on the electronic voting tabulators as downloaded onto the memory devices. After downloading the data onto these devices, the township clerks then remove the devices and deliver them to the county clerk for uploading to the Bureau of Elections / Secretary of State’s office.
Lake requested the data from all of the jurisdictions and precincts that conducted elections during August 2022, November 2022, and May 2023.
In addition to requesting the data, she cited the laws that guaranteed her right to see the data.
A few days later on July 31, 2023, a response from the Barry County Clerk’s office summarily denied Lake’s FOIA, on the grounds that “the data requested no longer exists on the memory cards.”
This was peculiar, especially since election statutes require the preservation of election data for a period of 22 months after each election.
Lake wondered, had the data been deleted in violation of law? If so, why would Michigan clerks delete election data from the tabulators prematurely?
Excerpts from this seven-page memorandum issued by Jonathan Brater, Michigan’s Director of Elections, on July 10, 2023, illuminated the most likely answer:
Brater’s memo provided forceful directives to the Michigan clerks from the Michigan Bureau of Elections. The “Bureau has issued a directive to destroy electronic copies of the EPB and flash drive.” Clerks were to “ destroy electronic copies only after they have already printed the paper copy of pollbook information (which must be retained for the required retention period.”
So, what does the actual Michigan election law dictate on this matter? According to MCL 168.811, Michigan clerks are required to retain election materials for 22 months following the final canvass of the election:
168.811 Election returns, records, and applications; preservation; destruction; time.
Sec. 811. All election returns, including poll lists, statements, tally sheets, absent voters' return envelopes bearing the statement required by section 761, absent voters' records required by section 760, and other returns made by the election inspectors of the several precincts must be carefully preserved and may be destroyed after the expiration of 22 months following the primary or election at which the same were used.
MCL 168.932 stipulates that destroying election materials prior to the end of the retention period is “guilty of a felony.”
168.932 Prohibited conduct; violation as felony.
Sec. 932. A person who violates 1 or more of the following subdivisions is guilty of a felony:
(a) A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state.
. . .
(c) An inspector of election, clerk, or other officer or person having custody of any record, election list of voters, affidavit, return, statement of votes, certificates, poll book, or of any paper, document, or vote of any description, which pursuant to this act is directed to be made, filed, or preserved, shall not willfully destroy, mutilate, deface, falsify, or fraudulently remove or secrete any or all of those items, in whole or in part, or fraudulently make any entry, erasure, or alteration on any or all of those items, or permit any other person to do so.
The law specifically includes “any record” and declares that a person “shall not willfully destroy, mutilate, deface, falsify, or fraudulently remove or secrete any or all of those items, in whole or in part, or fraudulently make any entry, erasure, or alteration on any or all of those items, or permit any other person to do so.”
This terminology appears to make no differentiation between paper or electronic records.
Was the Michigan Secretary of State’s office committing a felony when it issued its a directive to clerks throughout Michigan to destroy electronic election records?
The answer appeared to be yes.
Lake submitted a criminal complaint to the Barry County Sheriff’s office against County Clerk Palmer for allegedly committing a felony around the August 2023 timeframe.
The Plot Twists
After communications with the Sheriff’s office, the case was forwarded to the Barry County Prosecutor Julie Nakfoor-Pratt. Then Lake learned that Nakfoor-Pratt and Palmer were apparently good friends, with Clerk Palmer having been instrumental in getting Prosecutor Nakfoor-Pratt appointed to her position.
If true, Lake thought, the case would surely constitute a conflict of interest, so the prosecutor should recuse herself.
To Nakfoor-Pratt’s credit, the County Prosecutor’s office notified Barry County Sheriff Dar Leaf on October 26, 2023 that she had petitioned for a special prosecutor for this case.
But afterwards, a detective involved in the case said that the Michigan Attorney General’s (AG’s) office under AG Dana Nessel would not be assigning the case to a different prosecutor. Instead, the AG planned to handle the case in her office.
This struck Lake as a massive conflict of interest. The AG is the attorney for the Secretary of State, whose office allegedly instructed the clerks to break the law and delete the election data.
No new announcements or updates have been forthcoming on this case, so it appears that this complaint will die a quiet death in the AG’s office. This is not the first time alleged election fraud crimes in Michigan have slipped into the darkness after entering the Michigan AG’s office.
For example, according to official police investigations, a significant number of suspected fraudulent registrations on the order of about 8,000 to 10,000 in total were delivered in bulk to a clerk in Muskegon in October 2020. Yet there have been no prosecutions as of July 2024, four years after the initiation of the voter fraud case.
Based on all of the publicly available information, there appears to be an unnatural, symbiotic relationship between the Michigan SoS, the Michigan AG, the Barry County Prosecutor Julie Nakfoor-Pratt, and the County Clerk Pamela Palmer. Everything that happens in Barry County related to election integrity seems to immediately become known in the upper echelons of the Michigan state government.
The Barry County Sheriff’s office became suspicious as well and submitted FOIA requests for the communications between these four parties. After a extensive time passed without any substantial progress made on the FOIA requests, the Sheriff’s office sued Barry County for the email records. Then the emails arrived piecemeal and with portions missing.
IIn addition, Lori Bourbonais, the Director of the Election Administration Division for the SoS’s office, issued the directive below to Michigan clerks and election directors on May 10, 2023. This directive stipulates that requests for e-Pollbook data must be directed to the Bureau of Elections.
One could hardly help but notice the SoS office’s veiled threat of a referral for investigation. This is tantamount to the Michigan SoS office bullying the clerks into complying with SoS “guidance.” As this article has highlighted, Lake was unwilling to be bullied by government officials acting outside their legal authority.
An email excerpt from Adam Fracassi, the Regulatory Manager of the Michigan Bureau of Elections, is noteworthy in that the email confirmed the SoS office’s role in guiding clerks toward “not producing” the data associated with the electronic poll book. Fracassi stated, “The Guidance that we have put out on not producing relates to the data from the electronic poll book because there’s security elements that cannot be released, but that’s separate from a standard registration list which appears to be requested here.” Of note, all data is subject to redaction of protected information.
Baltimore Township FOIA Submission
Lake also submitted a FOIA request on July 12, 2023, to Baltimore Township for QVF data (including voter ID numbers) for five different dates spanning the time range of November 2022 to July 2023.
A court complaint was also filed afterwards.
Johnstown Township FOIA Submission
On July 12, 2023, Lake submitted another FOIA request, this time to Johnstown Township. She asked Clerk Sheri Babcock for QVF data, including voter ID numbers, for five different dates spanning the time range of November 2022 to July 2023. Interestingly, Babcock responded by referring Lake to the Bureau of Elections (BoE) for the e-Pollbook flash drive data. Babcock stated, “clerks have been instructed to refer you to them on this matter.” (See the Brater July 10, 2023 memo above).
Again, Lake filed another lawsuit, this time for Johnstown allegedly failing to comply with Lake’s legally authorized FOIA request.
Rutland Charter Township FOIA Submission
Lake submitted a FOIA request on Nov. 16, 2023 to the Rutland Charter Township clerk Robin Hawthorne for QVF data for that township.
This clerk too proved difficult and failed to provide the QVF data fast enough, so Lake moved forward with a civil lawsuit to acquire this QVF data.
Altogether, Lake filed three different civil lawsuits against Baltimore, Johnston, and Rutland townships for the purpose of forcing their clerks to release publicly available data to her under the color of law.
As a result of Lake’s courageous lawsuits, the township clerk offices all eventually handed over the requested election data, guaranteed to the American public in order to keep our elections fair and transparent. This precious, sacred election data is owned by the American public, not the clerk, township, county, or state -- not by the government at any level.
Additionally, Lake courageously filed a criminal complaint against the Barry County Clerk Pamela Palmer. This complaint is particularly significant in that it opens up the very real possibility that the guidance given to Michigan clerks from the current Secretary of State’s office is in violation of Michigan election laws. Clerks that comply with unlawful guidance may be setting themselves up for criminal liability.
In the end, no amount of posturing and false guidance can withstand a valiant citizen, standing tall to defend her rights and operating within the scope of law.
Clerks find themselves caught in an unfortunate position. On the one hand, an over-reaching government appears hell bent on administering its election apparatus in an opaque and difficult-to-audit manner. On the other hand, these clerks were elected to serve their constituents (not the government). They are charged with honoring the transparency guaranteed by state and federal law.
As this great republic heads into the presidential election this fall, time has run out for this kabuki theater. The constitutional republic appears to have reached a crossroad, and we the people may have to choose. Will clerks uphold their legal authority to make determinations on election data releases in response to FOIA requests? Will they honor their responsibility to clean voter roll registrations in their jurisdictions? Will they shoulder their responsibilities to conduct lawful elections in their jurisdictions?
We as private citizens bear responsibility as well. Will we defend the integrity of our elections? For support we need only turn to our Constitution. The First Amendment provides us with incredibly powerful tools:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.
We can take actions, including attending local election integrity group meetings, attending local political meetings, engaging with local election officials, raising awareness on election malfeasance, and engaging with local law enforcement on this important topic.
We are in the middle of an animating contest for the fate of our country where every inch matters. Every action matters. The difference between winning and losing is the summation of all of the inches and actions taken towards driving election integrity forward.
Kudos to Shelly Lake and to the patriots standing tall in their own right!
Randy Schiffer is an electrical engineer, a USAF veteran and an election integrity advocate with a focus on Michigan. He has studied election irregularities extensively with a focus on Michigan for three-plus years and has worked with a number of election integrity groups, including Check My Vote and Michigan Fair Elections. GETTR: @RandySchiffer | Truth Social: @RandySchiffer | Twitter / X: @RandySchiffer
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