When it comes to undermining elections: if it’s legal, is it okay?

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There is no doubt that attorney Matthew DePerno tried to overturn the results of Michigan’s 2020 presidential election.

He did it actively, vocally and repeatedly. He served as an attorney for a resident who wanted to challenge the results of the presidential election in County Antrim, Michigan, filing a lawsuit in December 2020. At this point, a technical glitch that had led to a false temporary declaration of results in Antrim was well established. , but DePerno still advanced. He gained access to voting machines used in the county, allowing a right-wing group called the Allied Security Operations Group to do a “forensic analysis” of the devices. This analysis, alleging intentional fraud, was itself completely debunked in a short time.

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DePerno continued. In March 2021, in an effort to bolster his lawsuit, he subpoenaed a number of county clerks across the state, arguing that in Michigan, as elsewhere, there had been an “algorithm used to regulate and shift the votes in the 2020 election.” Its aim was to show that fraud had occurred in County Antrim using other counties as a benchmark.

A judge dismissed the effort as a “fishing expedition,” understating how ridiculous it all was. DePerno’s argument was based on the analysis of a high school teacher named Douglas Frank who claimed to have found a secret “key” proving that electronic machines were rigging the results. The reality was that Frank and his seemingly complicated charts were simply mixing age-related voting patterns with bad data.

After DePerno filed a motion in early April 2021, that’s how he predicted the response would unfold. Charts shown are Frank’s.

In May, DePerno’s lawsuit was dismissed. The following month, a Republican-led Michigan State Senate committee released a lengthy report assessing claims about the state’s 2020 election. His findings were innocuous: there was no evidence of material fraud. One by one, he went through the claims that had been raised and dismissed them.

DePerno got a special mention.

“The committee has closely followed Mr. DePerno’s efforts,” the report reads, “and can confidently conclude that they are patently false and based on misleading information and illogical conclusions.”

Days later, at a rally in the state capitol, DePerno nonetheless excoriated state leaders about the 2020 election results.

“They lie,” he said. He called Michigan Secretary of State Jocelyn Benson (D) a “bully” and Governor Gretchen Whitmer (D) “the Führer”. County clerks, he claimed, had “committed crimes.”

Late last year, DePerno announced his candidacy for state attorney general — and received an endorsement from former President Donald Trump. In March, Trump hosted DePerno for a fundraiser at Mar-a-Lago.

However, there was another important development at this point. Benson had been made aware of allegations that voting machines in County Roscommon may have been accessed inappropriately, and in February asked state law enforcement to investigate. The investigation was led by state police and the office of Michigan Attorney General Dana Nessel (D).

On Friday, there was a new development. Nessel filed a petition with a state agency to appoint a special prosecutor to take over the investigation as she reached the point of potentially filing criminal charges — because, according to the filing, DePerno was likely to be among the accused persons. Since he is likely to be confirmed as Nessel’s Republican challenger in November, Nessel has sought to move the inquiry out of his purview.

The filing details what DePerno allegedly did:

“It is alleged that DePerno [and other alleged conspirators] orchestrated a coordinated plan to access vote tabulators that had been used in County Roscommon and Richfield Township (County Roscommon), Irving Township (County Barry) and Lake City Township (County Missaukee),” he alleges. “…The 5 tabulators were taken to hotels and/or AIRBNBs in Oakland County where [alleged conspirators] broke into the tabulators and carried out “tests” on the equipment. It was determined during the investigation that DePerno was present in a hotel room during these “tests.” ”

A DePerno spokesperson insisted the filing was based on Nessel’s concern to win in November.

“She is desperate to win this election at all costs and is now targeting DePerno, her political opponent,” campaign manager Tyson Shepard said.

This is where we hit pause.

Consider the argument here: that the risk to DePerno’s candidacy is not all that is contained in the first twelve paragraphs of this article, but rather that there is an investigation into a subset of his efforts to undermine confidence in the election. It’s not that he compared the governor to Adolf Hitler or promoted patently ridiculous claims about evidence of fraud, it’s that he could face criminal charges.

There are certainly reasons to think that prosecutions are politically more dangerous. A conspiracy indictment carries weight that rhetoric does not. But this particular scenario elevates a fundamental distinction in the number of Americans, especially on the right, who see the effort to overturn the 2020 election: If it was legal, it was fine.

This month, Florida Governor Ron DeSantis (right) will travel to Arizona and Pennsylvania to support Republican gubernatorial candidates in those states. In Arizona, that means Kari Lake, whose loyalty to the idea that the 2020 election was stolen is so unwavering that Trump couldn’t help but praise her for it. In Pennsylvania, that means Doug Mastriano, whose commitment to the idea led him to be on Capitol Hill on January 6, 2021.

Benjy Sarlin of NBC News explained how DeSantis’ platform reflected the sentiment within his party: Republicans are “dealing with almost all [Jan. 6] as a bona fide disagreement between friends, rather than a disqualification. Attempts to nullify election results within the confines of the law – or in exploring the liminal gray area where legality is not articulated – are often seen as simply “just another matter to be debated amongst others.” others”, as Sarlin said.

Last week, my writing about how Mastriano’s failure to enter the Capitol — thus avoiding federal charges — gives him space to differentiate himself from the rioters themselves. But for those wary of elected leaders who might be inclined to elevate partisanship above election results, that’s cold comfort.

There is no evidence that Matt DePerno was in those hotel rooms where the voting machines were accessible. It is unclear whether he will face charges related to his alleged presence. What is proven, forcefully, is that he both attempted to undermine confidence in the 2020 election results despite a complete lack of evidence to that effect, and that he branded those who pushed back harmful in the harshest possible terms.

Tellingly, his campaign doesn’t seem to think the latter activity is in itself an obstacle to victory.

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