Benson's bid to make permanent absentee voter rules draws opposition
Rules that would change Michigan's absentee ballot application and verification protocol are working their way through the state administrative process amid protests from legislative election leaders.
The rules proposed in August would require local clerks to start with a presumption of validity when examining signatures for absentee voter applications and ballots, and allow for online absentee ballot applications.
The rules, which went through a public comment process in August and September, implement to some extent practices that Secretary of State Jocelyn Benson put in place during the pandemic ahead of the November 2020 presidential election.
"The rules were proposed to codify existing practices, provide uniform standards and provide clarity for city and township clerks," said Aneta Kiersnowski, a spokeswoman for the Michigan Department of State.
Benson's office is preparing a report on the rules which will be submitted to the Michigan Office of Administrative Hearings and Rules, then the Legislative Services Bureau and finally for legislative oversight before the Joint Committee on Administrative Rules.
The joint committee, also known as JCAR, will have the rules before them for 15 full session days, or about five weeks.
During the August and September public comment period, the three proposed rules garnered a total of 50 comments, according to the state department. But Republican leaders have been more vocal in their opposition.
Sen. Ruth Johnson last month criticized the proposed rules, arguing they would "hurt integrity." The Holly Republican chairs the Senate Elections Committee and preceded Benson as secretary of state.
“Michigan election law requires signatures on absentee ballots and applications to be verified by clerks, and these proposed rules would undermine that process," Johnson said in a statement. "The law also requires voters to personally sign an application for an absentee ballot, and these rules do not comply with that law.”
Similarly, Rep. Ann Bollin, R-Brighton Township, said the rules would weaken current standards.
“Signature verification is an essential part of preventing fraud in our elections,” said Bollin, who chairs the House Elections and Ethics Committee. “Weakening this safeguard will make our entire system more vulnerable.”
Republican lawmakers, by contrast, have bills pending that would prohibit the secretary of state from allowing for a digital signature on online applications as well as variations on Benson's signature verification requirements. Gov. Gretchen Whitmer has largely been vetoing any legislation concerning voting or election practices, so it's unlikely the Republican-led legislation will get past her veto pen.
A separate Republican-led petition drive seeks to tighten absentee ballot requirements, including mandates requiring absentee voters to submit their driver's license number, state personal ID number or the last four digits of their Social Security number.
Secure MI Vote is also seeking a ban on election officials sending out absentee ballot applications unless voters specifically request the applications.
The petition comes amid GOP efforts in multiple states to change voting laws after Donald Trump's loss in November 2020. The Republican former president has levied unsubstantiated claims that voter fraud cost him his race against Democrat Joe Biden.
Signature verification changes
Benson's proposed signature verification rule would require clerks to start with the presumption that the signature is valid and to resort to additional scrutiny if there were “multiple, significant, and obvious” differences from the signature on file. Any “redeeming qualities” — such as a distinctive flourish, evidence of a shaking hand, recognized nickname or diminutive of a full name — in the signature should prompt validation.
“Slight dissimilarities should be resolved in favor of the voter,” the rules say. “Exact matches are not required to determine that a signature agrees sufficiently with the signature on file.”
The rules also require clerks checking signatures to consider “plausible” explanations for differences such as health- or age-related changes, disability, a signature made in “haste,” the surface where an individual was writing or the passage of years from when a signature was put on file and when the application was signed.
If a clerk receives an application or ballot with a signature issue at least six days before the election, the clerk must tell the voter of the problem within a business day by phone, email or mail, according to the proposed rules. If the problematic application or ballot is received less than five days before the election, the clerk must contact the voter immediately.
The ballot may be cured by providing a clearer signature up until polls close on Election Day, according to the proposal.
“The desired outcome is to provide uniform standards for city and township clerks to utilize when comparing the signature,” the Bureau of Elections wrote in its rules filing.
Currently, city and township clerks review absentee ballot applications and ballot signatures against the signature on file in the state’s Qualified Voter File. But state law doesn't define what it means for signatures to "agree sufficiently."
Johnson argued last month that Benson's rules go beyond what is allowed by law when it comes to signature verification.
“If the signature doesn’t match, the law does not provide for the clerk to guess why that might be; they should be contacting the voter to ensure that is who sent in the absentee ballot or application," she said.
It's not the first time Michigan leaders and courts have debated Michigan's signature verification rules.
Ahead of the November 2020 election, Benson in guidance to local clerks indicated they should presume the accuracy of absentee ballot signatures. But Michigan Court of Claims Judge Christopher Murray in March of this year struck down the guidance as invalid because it went “beyond the realm of mere advice and direction” and became a “substantive directive” that should have gone through the administrative rule-making process.
The Bureau of Elections looked to similar guidance in Colorado, Hawaii, California, Rhode Island and Minnesota in developing its rules, according to the state's rules filing. Rhode Island and Minnesota begin with a presumption of validity of signatures while Colorado, Hawaii and California consider other factors that may have led to a problematic signature, such as writing surface, age, illness or length of time between the original match signature and the one on the application or ballot.
Hawaii, California, Rhode Island and Minnesota are Democratic-dominated states. Colorado is considered a swing state but is currently led by a Democratic governor and Democratic secretary of state.
Online applications, campaign finance rules
A separate proposed rule would allow the secretary of state to provide an online absentee voter ballot application and allow for the use of a digital signature. To use the stored digital signature, an applicant must verify the voter’s name, driver’s license or state ID number, last four digits of the voter's Social Security number, date of birth and eye color.
If an applicant has no digital signature on file, they can provide a photo of their physical handwritten signature.
The state in its filings indicated the proposal would codify changes made ahead of the 2020 general election. Michigan officials noted the state of Virginia had a similar setup for online absentee voter applications and that the measure represents the “least burdensome alternative” for voters. Virginia is a swing state with a Democratic secretary of state that recently elected a Republican governor.
“Given the advances in technology, Michigan’s constitutional amendment granting all voters the right to vote absentee without providing a reason, and the Department of State’s ability to verify a person’s signature through the motor vehicle database, the rules seek to expand access to an absent voter ballot,” the filing said.
A separate rule requires a candidate to have all statements, reports and fines satisfied at the time that they submit their affidavit of identity. A candidate with “an outstanding notice of error or omission” regarding statements, reports or fees could be disqualified.
In order to ensure a complete review of past candidacy filings, candidates must give the Bureau of Elections a full disclosure of past jurisdictions where the individual sought nomination or election.
The rules differ from past practice by clarifying “ambiguities” regarding what constitutes a false statement on an affidavit and when fines, fees or late reports would disqualify a candidate. Additionally, the rule provides a “regulatory framework for processing affidavits of identity,” according to a rules explanation submitted by the bureau.
Bollin expressed opposition to the bill, arguing it would place a burden on local clerks who would have to manually search records across the state to determine any outstanding violations.
“Having to review potentially thousands of campaign finance records will be a major undertaking that will increase costs and cause delays for clerks’ offices that are already understaffed," Bollin said.