Judge rules Benson's ballot signature verification guidance 'invalid

[xotrevor]

March 15, 2021

State Court of Claims Judge Christopher Murray has ruled invalid Secretary of State Jocelyn Benson's guidance issued to Michigan clerks in early October that instructed them to presume the accuracy of absentee ballot signatures.

Because Benson did not go through the proper rule-making process when issuing the guidance, clerks do not need to comply with it for future elections, Murray ruled last week.

"The presumption is found nowhere in state law," wrote Murray, an appointee of Republican former Gov. John Engler. "The mandatory presumption goes beyond the realm of mere advice and direction, and instead is a substantive directive that adds to the pertinent signature-matching standards."

State Court of Claims Judge Christopher Murray has ruled invalid Secretary of State Jocelyn Benson's guidance issued to Michigan clerks in early October that instructed them to presume the accuracy of absentee ballot signatures.

Because Benson did not go through the proper rule-making process when issuing the guidance, clerks do not need to comply with it for future elections, Murray ruled last week.

"The presumption is found nowhere in state law," wrote Murray, an appointee of Republican former Gov. John Engler. "The mandatory presumption goes beyond the realm of mere advice and direction, and instead is a substantive directive that adds to the pertinent signature-matching standards."

"....Nowhere in the 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 wrote.

"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," he wrote.

The Administrative Procedures Act requires state agencies that are developing a rule to better implement state law to go through months of public notices, drafts, impact analyses, public comment and public hearings.

When a final version of the rule is complete, it is submitted to the Legislature's bipartisan Joint Committee on Administrative Rules. The committee has 15 session days to take action on the rules before they are finalized and filed with the secretary of state.

Murray rejected a request for additional audits to look at the effect the directive had on the November election.

The Michigan Constitution only speaks to "election results," not to the process by which signatures are matched, and the Constitution leaves the manner by which an audit is conducted to the secretary of state.

"There is no support in the statute for plaintiffs to demand that an audit cover the subject of their choosing or to dictate the manner in which an audit is conducted," Murray wrote.

Rep. Matt Hall, R-Marshall, praised the court's decision, calling Benson's directives "clear violations of her authority."

"If she wants to make changes like these, she needs to work with the Legislature or properly promulgate them through the laws we have on the books -- in this case the Administrative Procedures Act," Hall said.

Link: https://www.detroitnews.com/story/news/ ... 699927001/