A Michigan judge ruled last week that Secretary of State Jocelyn Benson’s last October guidance relating to ballot signature verification was not in compliance with the law and thus it’s invalid.
Michigan Republican Party and Allegan County clerk Robert Genetski filed the lawsuit on Nov. 2, 2020, against Benson and Jonathan Brater, director of the Michigan Bureau of Elections.
The plaintiffs claimed that the guidance Benson issued last October violated the Administrative Procedures Act (APA) and should be nullified. They also asked the court to declare that they have the right to request an audit of their choosing, saying the state-wide audit in November did not review whether signatures were properly evaluated.
On Oct. 6, 2020, Benson issued guidance titled “Absent Voter Ballot Processing: Signature Verification and Voter Notification Standards.”
The guidance stated that clerks “must perform their signature verification duties with the presumption that the voter’s application or envelope signature is his or her genuine signature.”
The guidance also said signatures “should be considered questionable” only if they differ “in multiple, significant and obvious respects from the signature on file,” according to the court order (pdf). “Whenever possible,” election officials were to resolve “slight dissimilarities” in favor of finding that the signature was valid.
“The standards issued by defendant Benson on October 6, 2020, with respect to signature-matching requirements amounted to a ‘rule’ that should have been promulgated in accordance with the APA,” Christopher Murray, the chief judge from the Michigan Court of Claims, ruled in the court order.
“And absent compliance with the APA, the ‘rule’ is invalid.”
According to the Michigan APA (pdf), to develop a rule, the state agencies need to go through procedures such as filing requests, public notices, impact analyses, public hearings, approval by the legislative service bureau and office, and finally, approval by a joint committee on administrative rules. The whole process might take months.
“Nowhere in this state’s election law has the Legislature indicated that signatures are to be presumed valid, nor did the Legislature require that signatures are to be accepted so long as there are any redeeming qualities in the application or return envelope signature as compared with the signature on file,” Murray pointed out.
“Policy determinations like the one at issue—which places a thumb on the scale in favor of a signature’s validity—should be made pursuant to properly promulgated rules under the APA or by the Legislature.”
However, Murray didn’t support the plaintiffs’ claim that they have the right to request an audit.
“For at least two reasons this claim is not supported,” Murray wrote in the order. “First, the constitution speaks of an audit of election results, not signature-matching procedures.”
Secondly, the statute leaves it to the Secretary of State to “prescribe the procedures for election audits” and conduct audits according to the prescribed procedures, Murray added.
“I’m glad the court sees Secretary of State Benson’s attempts at lawmaking for what they are—clear violations of her authority,” State Representative Matt Hall said in a statement.
Hall is a Republican and was chair of the state House Oversight Committee during the 2019–20 legislative term.
“This is not the role of the Secretary of State, and there is a clear process that must be respected,” continued Hall.
State officials and courts, not the state legislatures as required by the Constitution, illegally changing election rules and relaxing ballot-integrity protections have been among the main allegations in former President Donald Trump and his campaign’s lawsuit.