Michigan judge rejects Benson’s guidance on absentee ballot signatures

Secretary of State Jocelyn Benson in Detroit May 17, 2022 | Ken Coleman

A Michigan judge on Thursday struck down a key part of guidance sent to local election officials by Michigan Secretary of State Jocelyn Benson’s office. 

The lawsuit was filed by the Republican National Committee (RNC) March 28 in the Court of Claims against Benson, a Democrat, claiming the 2023 guidance, specifically that clerks should initially presume the validity of absentee ballot signatures, was issued  “covertly” and was “inconsistent” with Michigan’s  constitution.

The opinion issued by Judge Christopher P. Yates, who was appointed by Gov. Gretchen Whitmer, agreed on that particular point, finding that a presumption of validity was “incompatible” with Michigan’s constitution, despite assurances from Benson’s office that even though the word “presumption” was in the guidance, it didn’t demand election officials conclude it was a requirement.

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“With apologies to Gertrude Stein, however, a presumption is a presumption is a presumption. Whether the guidance manual includes a gentle nudge instead of a hip check, it’s still a foul under Michigan law,” he wrote.

The ruling was applauded by RNC Chairman Michael Whatley, who said it confirms that safeguards are required for absentee ballots. 

“The Secretary of State’s covert attempts to sidestep these rules were rightfully rejected by the court, exposing that her attacks on election integrity have no substance. This win is just the latest development in our ongoing fight to promote fair and transparent elections in the Great Lakes State,” said Whatley.

However, Yates upheld the remainder of the guidance allowing election officials to consider possible explanations for discrepancies, including that a voter’s signature may change over time due to age or disability, that it was made in haste, or was written on an uneven surface, which he called “commonsense reasons” that offer “real-world explanations consistent with the generous approach to signature verification that our legislature has proscribed.”

Benson spokesperson Angela Benander told the Michigan Advance in an emailed statement that the rules were implemented so that each of the state’s more than 1,500 clerks weren’t obligated to create their own individual standards, which could undermine certainty for both voters and election officials. 

“We are glad to see that the judge has affirmed those rules are consistent with the election law. Michigan’s clerks have and will continue to carefully review every ballot signature to ensure they agree sufficiently with the signature on file before accepting any ballot,” said Benander. “As we prepare for the 2024 primary and general election, Michigan voters can be confident that our elections are secure, accessible, and that the results are an accurate reflection of the will of the people. We’ve worked hard in Michigan to put secure procedures in place to ensure every valid vote and only valid votes count.”

Regardless, Michigan Republicans cast the ruling as a victory and confirmation that their concerns over voter integrity are valid.

“This decision reinforces the fundamental principle that our elections must be conducted with the highest level of integrity and transparency. It’s obviously vital that our chief elections administrator provides guidance that adheres to the constitution, so I’m glad the court has once again stepped in to put her on the right track,” said state Rep. Ann Bollin (R-Brighton), who served as a municipal clerk for 15 years before her election to the Legislature.

Bollin noted Thursday’s ruling is the second time a court has determined Benson overstepped her authority by trying to implement changes without going through the administrative rules process, referring to a Michigan Court of Appeals decision last October concerning poll watchers and challengers.

“As chair of the House’s Elections Committee at the time, I led efforts to oppose her changes. She ignored most of our concerns and moved forward anyway, but the court has now ruled that our concerns were valid. This ruling is a crucial victory for voters and election integrity in our state,” said Bollin.

Thursday’s ruling came despite a supportive brief filed by the Democratic National Committee, which argued that Benson’s guidance was entirely consistent with Michigan law and did clarify that local clerks had to still review all signatures.

“In reality, the greatest threat to public confidence in the integrity of our elections is not fraud or voter-roll maintenance, but unfounded attacks on our elections themselves,” stated the brief. 

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