Nessel: Auditor general lacks power to review local election audits
Lansing — Michigan’s auditor general does not have the power to audit local election results, Attorney General Dana Nessel said in an opinion released Friday.
The opinion came more than three weeks after Secretary of State Jocelyn Benson, a fellow Democrat, asked Nessel for her opinion and said the Office of Auditor General wanted "to recreate the audits conducted by country clerks." Auditor General Doug Ringler's office is considered an autonomous agency from the Michigan Legislature, which appointed him to his position in 2014.
Ringler's review came as some Michigan Republican lawmakers have called for a new audit of the 2020 election results, where GOP former President Donald Trump lost to Democratic President Joe Biden by 154,000 votes. Ringler was appointed by the Republican-controlled Legislature.
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While Ringler is a constitutional officer, he is not a state or local election official with access to or authority over local election records, Nessel wrote. Giving the auditor general access to local election records would be a potential violation of federal law and put parties involved at risk of prosecution, she said.
The auditor general's power does not extend beyond financial or performance audits, Nessel wrote.
“OAG does not have a constitutional right to demand or compel access to local government records, including election ballots and voting equipment," the first-term attorney general said. "As the chief law enforcement officer of this state, it is my duty to protect our free and fair elections and that includes protecting the machinery and documents that keep our democracy running.”
Ringler's office has said it was examining the sufficiency of "post-election review procedures" and efforts to provide training for local officials. The office has said the audit was planned for a non-election year.
The Office of Auditor General has received the opinion and is reviewing it, spokeswoman Kelly Miller said Friday.
Michigan's Constitution allows the auditor general to audit the Bureau of Elections and its procedures concerning post-election audits, but it does not allow the auditor general to audit county clerks as part of that audit, Nessel ruled.
In addition, Benson can exercise "supervisory authority" by directing local clerks how to allow the auditor general to review records in a way that protects "the physical integrity and security of the records," Nessel wrote.
Under that same "supervisory authority," the attorney general wrote, Benson can direct clerks to bar access to voting equipment in a bid to protect the integrity and security of the equipment.
Benson's office, in asking for Nessel's opinion, had expressed concerns about whether state auditors would be able to replicate the processes carried out by election clerks or whether the "significant volume of local election records" would remain organized and preserved during and after the audit.
Benson also worried that the audit of the audits would "become another avenue to cast doubt upon and re-litigate the outcome of the November election."
Amid unproven claims related to the election, a series of court rulings, dozens of reviews by election officials and bipartisan boards of canvassers as well as an investigation by state Senate Republicans have concluded there was no widespread election fraud. But the Senate GOP investigation found "glaring issues that must be addressed" in state election law.
More than 250 election audits have already been completed in Michigan and confirmed the election results, Benson's office said in March.
Staff writer Craig Mauger contributed.