Michigan | Election Law @ Moritz

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Fall 2006 50 Questions project

By Damien Kitte, Veronica Norman, Benjamin Shepler, and Nathan Cemenska, Web Editor; Edited by Nathan Cemenska and Terri Enns

Date of publication: 9/19/06 (last updated 10/31/06)

Note: The following is a compendium of election administration questions and answers identified by the EL@M team as important for the November, 2006 election. The information was gathered from publicly available sources, and is intended as an objective, nonpartisan summary. It is not intended to constitute legal advice. Those seeking legal advice should retain an attorney.

Eligibility and Registration

1. What are the requirements for eligibility to vote?

To be eligible, prospective voters must be citizens of the United States, at least 18 years of age by election day, residents of Michigan for not less than thirty days, residents of the township, city, or village in which they wish to vote on or before the thirtieth day before the next election, and not serving a sentence in jail or prison. MCLS 168.492.

People are “residents” where they habitually sleep, keep their personal effects or have a regular place of lodging. MCLS 168.11(1).

2. What procedures must eligible voters follow to register?

People may register by filling out an application and delivering it in person or by mail. Voters who register by mail become subject to additional identification requirements at the polls (see question 14).

In person

Michigan voters may register in person by appearing at the clerk’s office for the relevant jurisdiction and filling out and signing a registration application before an employee of that office. MCLS 168.499. Voters may also register while obtaining a driver’s license at the Department of Motor Vehicles. MCLA 168.500a. Properly completed in-person registrations will be effective for an upcoming election if the application is made thirty or more days before the election. M.C.L.A. 168.500d.

By mail

Voters may also register by mail. M.C.L.S. 168.509v. To be effective, applications must be accepted on the thirtieth day before the election or earlier. M.C.L.A. 168.497.

Voter Registration and Database Management

3. What process, if any, is the state following in matching voter records in its statewide registration database against Social Security and state motor vehicle records?

M.C.L.A. 168.509o requires the Secretary of State to create a statewide voter registration database known as the Qualified Voter File (QVF). The QVF shall contain name, address, date of birth, driver’s license or state ID card number, voting history, electronic signature, and voting district information for every registered voter. MCLA 168.509q. In addition, it will contain any other information the Secretary of State deems necessary.

The information in the QVF is compiled from driver’s license records, applications for benefits or services taken by designated voter registration agencies, and voter registration applications. MCLA 168.509r. County, city, and township personnel authorized to access the QVF may add, change, and delete records from it. M.C.L. 168.509p. In addition, judging by training materials issued by the Michigan Secretary of State, it appears that the Secretary of State’s office, individual driver’s license bureaus (which are used as voter registration agencies), and potentially other designated voter registration agencies have the ability to change information in the database.

Validating information contained on incoming voter applications

When a state registration agency receives a completed registration application, it shall “validate” the application in the manner prescribed by the Secretary of State. M.C.L. 168.509w. The Secretary of State’s Office has not made public any official directives or administrative provisions concerning this process, but has posted some press releases and training materials that give at least a partial idea of how it works. The Secretary has also issued some materials describing how existing registrations contained in the QVF are validated against other databases on an ongoing basis.

It is clear that Michigan makes some effort to validate incoming voter applications against a central database of driver’s records maintained by the Secretary of State under MCLA 257.204a. The bulk of this effort seems to focus on validating addresses.

Generally, a voter registration card will not be rejected because the address information it contains conflicts with information previously entered into state motor vehicle records. Rather, when address information conflicts, Michigan simply assumes that the most recently submitted address is correct and changes the other record to reflect this (link here). M.C.L.A. 257.307. However, voters with conflicting address information may encounter problems in at least one situation: when they attempt to register twice on the same day using multiple addresses in the state (see page 8 of training materials). In this case, the QVF program will throw up a red flag, and local elections officials must attempt to contact the voter to determine residency status.

Also, QVF training materials indicate that the QVF, at least in some cases, can distinguish business from residential addresses (see page 7 of this link). If local zoning ordinances do not allow persons to reside at the address identified, the voter’s registration attempt will be rejected.

A voter’s registration may be rejected because of the voter’s age, because the voter has listed a business address as his or her residence, because the voter has submitted a duplicative registration, because the voter has submitted an invalid address, because the voter did not submit a signature on the application, because the voter is a non-resident or because the voter has submitted incomplete information (see page 11 of training materials). It is unclear how Michigan determines that registration applications suffer from these problems. However, it is clear that the reasons for the rejection should be recorded in the QVF.

Any time a voter registration card is rejected, the clerk shall immediately send notice to the voter stating the reasons for rejection. M.C.L.A. 168.500d.

Validating information in existing voter registrations

For existing voter registrations, the QVF is generally coordinated with a state “driver file” managed by the Secretary of State’s motor vehicle division under MCLA 257.204a. When changes occur in the driver file, this information should be reflected in the QVF. This is true for information regarding deaths, change of address, date of birth, name and even gender (see page 11 of training materials). The Secretary of State has prescribed follow-up procedures for each of these situations.

When the driver file indicates the voter has died, the voter’s registration will be canceled. When the driver file indicates the voter has moved within a jurisdiction, the voter’s records should be updated and the voter mailed a new voter ID card that reflects the change of address. On the other hand, if the driver file indicates the voter has moved outside the current jurisdiction, local officials should cancel his local registration and record the date of cancellation and the new jurisdiction in which the voter is registered. If the driver file indicates a different date of birth, this should be corrected in the database. When the driver file reflects change of gender, this should be verified and the voter database changed. If the driver file contains an updated name, the new name should be corrected in the voter database. If the last name has changed, the voter should be issued a new voter ID card with the new name.

For deaths, the Secretary indicates that it has used the Social Security Administration’s Death Index to identify dead voters that should be removed from the QVF.

When a voter’s registration is canceled or challenged in the database, the reasons for the cancellation or challenge will be noted (see page 9 of training materials).

4. If a new voter registration card is rejected because the information it contains is slightly different than the information contained in other state databases concerning that same voter (suppose the bureau of voter vehicles has the name of the driver with that license number as “Andrew Smith” whereas the voter registration card with that license number provided as ID says “Andy Smith”), what opportunity does the voter have to correct that error, and will a provisional ballot cast by that voter count?

The voter will receive notice and may reregister or correct the application any time before the registration deadline.

Any time a voter registration card is rejected, the clerk shall immediately send notice to the voter stating the reasons for rejection. M.C.L.A. 168.500d. This includes when the voter submits an unacceptable business address on the registration application (see page 7 of training materials) and when records show the voter registered with more than one address on the same date (see page 8).

The training materials also indicate that a voter whose application is rejected due to problems with the voter’s age, address, citizenship, or other problems may cure those problems by providing the required information (see page 10). If the application lacked a signature, the voter may cure this only by submitting a new application before the close of registration.

5. If a provisional ballot is rejected because the voter is unregistered according to records in the state’s new centralized voter registration database, what additional procedures (if any) must state officials undertake to see if the omission of this voter from the database is erroneous? (For example, must the state election officials double-check with the state’s bureau of motor vehicles to determine if any new registration forms, although submitted by the voter on time, were delayed in being transmitted to the board of elections?)

The county clerk must attempt to locate a valid voter registration record. However, the statute does not state where the clerk must look for such a record, and does not require the clerk to communicate with outside agencies in its search. The clerk must also accept and review any identification or proof of residence submitted by the voter within six days of the election.

Voters who the poll list indicates are registered or who present a verified receipt indicating successful registration will be allowed to cast a regular ballot at the polls (this also assumes the voter presents any necessary identification – see question 14). M.C.L.A. 168.500d. Voters who do not meet either of these requirements must cast a provisional ballot. There are two types of provisional ballots, and whether the provisional ballot is ultimately counted depends on what type of provisional ballot it is.

The first type of provisional ballot

The first type of provisional ballot is cast under M.C.L.A. 168.523a(4). This type of provisional ballot is counted like an ordinary ballot after it is cast (training materials indicate that it is actually a regular ballot, but it packaged for processing like a challenged ballot under M.C.L.A. 168.745 and .746). To cast this type of ballot, voters must present proper ID with current address and sign a sworn statement that they are registered and eligible. The sworn statement includes the approximate date the registration application was submitted and in what manner it was submitted: to a department of the secretary of state, to a designated voter registration agency, to the office of his or her county, city, or township clerk, or by a mailed application. The election inspector will then contact the local election clerk. The election clerk will attempt to verify whether the voter is registered. There is no explicit requirement that the clerk go beyond a search of its own records or communicate with any other office in so doing.

If the election clerk confirms that the voter is registered and finds no information contrary to the information provided in the sworn statement, the election inspector shall allow the voter to cast the first type of provisional ballot. Training materials indicate a slightly different rule—that in order to permit the voter to cast this type of ballot, the clerk need not indicate the voter is registered in this precinct, but only indicate the voter is not registered in any other precinct (see page 4).

If the election inspector is unable to reach the clerk or the clerk indicates the voter is registered elsewhere, the voter cannot cast the first type of provisional ballot.

Again, this ballot is counted like an ordinary ballot, meaning that it is counted if cast.

“Envelope” ballots – the second type of provisional ballot

The other type of ballot (sometimes referred to as an “envelope” ballot) is cast when the election inspector cannot contact the election clerk, when the voter appears to be in the wrong precinct, or when the voter fails to present proper ID with current address in the precinct. M.C.L.A. 168.523a(5). It is also cast when the voter is subject to HAVA’s separate voter ID requirements and fails to meet them. HAVA Compliance Procedures and Processes Memo, page 4. Unlike the first type of provisional ballot, this ballot will not necessarily be counted if cast.

A. Envelope ballots issued to voters whose names did not appear on the registration list

The election clerk will process this type of ballot within six days of the election under M.C.L.A. 168.813(1). The clerk will count the ballot if either one of two conditions are present. First, the clerk will count the ballot “if a valid voter registration record for the elector is located ….” Id. The voter registration records must reflect that the voter registered prior to the deadline preceding the election (see training materials). The statute does not state where the clerk must look to attempt to locate a record, perhaps allowing the clerk to stop looking after a search of its own files.

Second, the clerk will count the ballot if the identity and residence of the voter is established with a combination of proper ID and/or documents that voters may submit under M.C.L.A. 168.523a (a current utility bill, current bank statement, current paycheck, current government check or other government document). The voter may present these documents at the polls or any time during the six-day evaluation period occurring after the election (see training materials, page 2). In order for the ballot to be counted under this provision, the voter must also fill out an affirmation swearing that he or she submitted a voter registration application on or before the close of registration (page 1). M.C.L.A. 168.523a.

Although the clerk generally will not count provisional ballots cast in the wrong precinct, the clerk will “make every effort to accurately confirm that the voter did, in fact, vote in the wrong precinct …” before rejecting them. Id. at 3. This evaluation must include a check of the QVF precinct-assigning system “to verify that the voter was not assigned to the wrong precinct in error.” Id. If a check of the precinct-assigning system indicates the voter actually voted in the proper precinct, the provisional vote will be counted. The materials do not state whether a provisional vote will be counted in the situation where a voter appears at the correct precinct but votes at another precinct at the direction of election officials.

In Bay County Democratic Party v. Land, 347 F.Supp.2d 404 (2004), the US District Court for the Eastern District of Michigan determined that, for purposes of granting a preliminary injunction, there was a substantial likelihood that Michigan’s voting statutes together with HAVA and the NVRA require Michigan to count provisional ballots cast by voters in the wrong precinct as long as the votes were cast in the right “jurisdiction” (that is, city, village or township). Id. at 431. Michigan does not appear to have explicitly amended its laws or procedures in response to this opinion.

B. Envelope ballots issued to first-time mail-in registrants whose names appeared on the registration lists, but who failed to comply with HAVA’s ID requirements

The Secretary of State has issued a Notice instructing voters who fail to present HAVA ID at the polls that they may ensure the counting of their ballots by providing one of the following documents no later than six calendar days after the election: “A copy of any current and valid photo identification or a copy of a paycheck, government check, utility bill, bank statement or a government document which lists your name and address.” This rule is also stated in a memo called Procedure for Handling “Envelope” Ballots Returned to Clerk’s Office. No parallel Michigan code or administrative code provision could be found.

The Secretary of State has explicitly instructed officials that the process used for counting envelope ballots issued to voters whose names did not appear on the registration list should not be used for voters who were issued a provisional ballot for failure to conform to HAVA’s ID requirements. HAVA Compliance Procedures and Processes Memo, page 5.

6. Before rejecting a provisional ballot on the ground that the voter is unregistered according to records in the state’s new centralized voter registration database, what procedures (if any) does the state have for requiring its officials to check whether the voter is listed in the database under slightly different information than provided on the provisional ballot (for example, “Andy” instead of “Andrew”; middle name instead of middle initial; 125 Elm “Street” instead of 125 Elm “Road”)?

The county clerk must attempt to locate a valid voter registration record. However, the law does not direct the clerk how to do this, nor does it explicitly state that the clerk must check for “near matches.”

If the clerk does not locate a registration record, the ballot still may count if the identity and residence of the voter is established with a combination of proper ID and/or documents that voters may submit under M.C.L.A. 168.523a (see questions 5 and 31).

7. If a provisional ballot is rejected because the signature on the ballot does not match the signature in the state’s centralized voter registration database, does the state have any objective standards for making this signature-mismatching determination?

Michigan law does not instruct officials to verify the signatures contained on provisional ballots. The Secretary of State has also not issued any publicly available instructions to this effect. The Secretary’s instructions on handling provisional ballots may be found here.

MLCA 168.509hh does indicate that the Secretary of State may place images of voter’s signatures from registration applications into the QVF. Further, MCLA 168.507 does provide for signature comparison in another context (change of registration address). The statute simply says officials will process the change of address request “if the signatures correspond.” It neither requires nor prohibits using some “objective” form of signature comparison to verify the request.

Likewise, voters appearing at the polls to vote will execute an application with signature and residence information. M.C.L.A. 168.523. Officials will compare the signature with one on file, if available. “If the signature … does not correspond,” officials will challenge the voter using the challenge procedures described in question 17. Again, the statute neither requires nor prohibits using some “objective” form of signature comparison to verify the request.

Signatures contained on applications for absentee ballots will be compared using similar procedures. M.C.L.A. 168.761; 168.766.

8. What opportunity in general does a voter have to determine whether the submission of a new registration form has successfully resulted in the voter’s inclusion in the state’s database of registered voters and, if the voter learns that the submission was unsuccessful, to rectify the problem before Election Day (thereby enabling the voter to cast a regular rather than provisional ballot)?

Any time a voter registration card is rejected, the clerk shall immediately send notice to the voter stating the reasons for rejection. M.C.L.A. 168.500d. The voter may cure the problem by reregistering or contacting the appropriate office to correct the error.

Voters may verify successful registration either on the web or by visiting the office of the local town or city clerk. In addition, successful registrants should receive a voter registration card in the mail under M.C.L.A. 168.499 (for in-person registrants) and 168.500c. Voters may also look at voter registration records under rules and regulations prescribed by the township or city clerk. MCLA 168.516.

If voters do experience problems with their registration attempts, they may follow up with the proper authorities. Page 9 of the QVF training materials indicates that voters whose applications have been rejected for problems related to the voter’s age, address, citizenship, duplicative registration, or incomplete registration may cure this problem by providing the appropriate information. The materials also indicate that if the voter failed to provide a signature on the application, the only way to cure this is to reregister before the close of registration. However, it is unclear how the voters are supposed to know they are expected to follow these procedures.

If an elector who completes an application to vote does not appear on the precinct’s QVF list, the voter will not be allowed to cast a regular ballot unless one of two exceptions applies:

The voter is in the proper polling place and is able to produce a voter registration receipt that shows he or she registered before the voter registration deadline. M.C.L.A. 168.523a; see also training materials. The voter then should complete another registration form and vote under regular procedure.
If the poll worker or clerk determines that the voter is at the incorrect polling place and is willing to travel to the correct polling place, then the poll worker should give the voter directions to the correct polling place. Id. Note that if a voter declines to travel then he or she can vote provisionally but should be informed that his or her ballot will not count if it is confirmed that the voter is in the incorrect polling place.

Although these are the only two ways a voter who does not appear on the rolls may cast a “regular ballot,” there is a way for such a voter to cast a special type of “provisional ballot” that is handled much like a regular ballot (see question 5).

9. If it is determined that a new voter registration card was not included in the state’s database of registered voters because of an error committed by a third-party registration group (for example, the group failed to deliver the card on time), will a provisional ballot cast by the voter count?

Maybe, depending on whether the voter presents within six days of the election adequate evidence of identity and residence in the precinct (see the discussion of “envelope” ballots under question 5). The fact that any registration error was committed by a third-party and not the voter does not affect whether the vote is counted.

10. (A) When will a voter’s registration be canceled?

A voter’s registration will be canceled upon death, upon the voter’s request, when the voter doesn’t respond to a postcard confirming change of address, when the voter fails to respond to a challenge, and for other reasons.

Death

The clerk shall cancel a voter’s registration upon death. M.C.L.A. 168.510. The county clerk shall forward notice of recent deaths to the election clerks for this purpose. In addition, the Secretary of State’s website indicates that the Secretary is using a “Master Death File” maintained by the federal Social Security Administration to eliminate dead voters from the rolls. Officials will mail notice of cancellation to the addresses of those deceased voters who possess a voting history in the Qualified Voter File.

Voter’s request

The clerk shall cancel a voter’s registration by written request of the voter contained in a certain form. M.C.L.A. 168.511. This form must be submitted to cancel registration tied to an old address when a voter reregisters under a new address. M.C. L.A. 168.505.

Change of address

Any time the clerk receives reliable information that a voter has moved outside the city or township, the clerk will send by forwardable mail a notice with return card requesting the voter confirm the change of address. M.C.L.A. 168.509aa(3). If the voter fails to respond within thirty days of the next election, the voter may be required to affirm his or her current address before being permitted to vote. Furthermore, if the voter does not cast a ballot within the next two November general elections, the voter’s registration will be canceled. The clerk may use the US Postal Service’s change of address service to identify voters who have moved.

If the notice is returned undeliverable, the clerk will instruct election inspectors to challenge the voter using the procedures outlined in question 17 if the voter appears at the polls.

The 168.509aa(3) procedure will also be used when the voter identification card sent out to a newly registered voter is returned nondeliverable. M.C.L.A. 168.499. The law states that the original notice shall inform the voter that failure to respond may result in cancellation, but does not state the clerk will send out a follow-up notice confirming actual cancellation.

M.C.L.A. 168.509aa(2) includes a similar procedure for when the clerk receives reliable information that a voter has moved within a city or township, but these procedures do not terminate in cancellation.

Failure to respond to a challenge

If a voter’s registration is challenged by the clerk (because, for instance, the voter failed to respond to a confirmation of change of address) and the voter allows two November general elections to pass without overcoming the challenge, the voter’s registration will be canceled. M.C.L.A. 168.509cc. The statute does not indicate whether notice is sent.

If a voter is challenged by another registered voter, the clerk will send notice to the challenged voter. M.C.L.A. 168.512. The voter has thirty days to appear before the clerk or file an affidavit answering the challenge. If the voter does not answer the challenge or the answer does not satisfy the clerk, the clerk shall cancel the voter’s registration.

Other

M.C.L.A. 168.509dd provides that a local clerk may conduct a program to remove stale registrations by conducting a house-to-house canvass, by sending a general mailing to voters for address verifications, by participating in a national change of address program established by the postal service, or by other means the clerk considers appropriate.

A voter’s registration will be canceled and the voter sent notice if the clerk determines the registration was obtained fraudulently. M.C.L.A. 168.521. The person whose name is removed will not be allowed to vote unless he shows the clerk that his name was wrongfully removed.

Finally, state training materials indicate that voter’s registrations may be canceled if the voter is not of age, the voter lacks citizenship or residency, and other reasons (see page 9). The materials do not state whether these voters shall receive notice of cancellation.

Limitations on cancellation

M.C.L.A. 168.509bb indicates a clerk shall not cancel registration based solely upon failure to vote. This reflects a 1972 holding of the Michigan Supreme Court that canceling voters’ registrations solely for nonvoting violates the state constitution by adding an additional qualification to voting beyond those specified in the state constitution. Michigan State UAW Community Action Program Council v. Austin, 198 N.W.2d 385 (1972). However, the above sections do indicate that failure to respond to certain notices combined with failure to vote may result in cancellation where there is “reliable information” that the voter has moved.

10. (B) What is the last date before an election on which state officials may purge voters from their voter registration database?

The eighth day before the election.

Records cannot be added, changed, or deleted from the QVF “during the period beginning on the seventh day before an election and ending on the day of the election.” M.C.L.A. 168.509r.

In addition, a local clerk shall complete any program to remove names at least ninety days or more before a federal election. M.C.L.A. 168.509dd. However, there is no limitation for non-federal elections. Furthermore, this limitation does not apply in the event of cancellation at the voter’s request, cancellation for death, or cancellation of a local registration when the voter moves and files a completed application at the new address.

10. (C) What kind of notice must the state provide voters before purging their registrations from the database?

The law is generally silent on the notice question, and the Secretary of State has not issued any publicly available information regarding when cancellation notice is sent out

Michigan law does specify that voters will receive notice when their registrations are challenged by another elector, but does not state that voters will be notified if that challenge results in cancellation.

Michigan law also specifies that voters will be sent notice before a clerk cancels their registrations after a change of address. M.C.L.A. 168.509aa(3). The notice shall inform them that failure to respond may lead to cancellation. However, voters may not receive this notice since it is sent to an address believed to be bad. Also, the law does not state that the voter will receive notice if his or her registration is actually cancelled under this procedure.

The Secretary of State’s website also indicates that some notice is sent out in the event of cancellation due to death, but only if the deceased voter had a voting history reflected in the QVF.

10. (D) What opportunity must the state give voters to challenge the purge of their registration (either prior to Election Day, or during the process of reviewing provisional ballots)?

In a few cases, voters may prevent cancellation by responding to notices they receive. In other cases, voters may have no option other than re-registering.

Voters who the clerk suspects have moved and who receive a notice requesting confirmation of new address information may prevent cancellation by responding to the notice by updating their address information within thirty days of an upcoming election. M.C.L.A. 168.509aa(3). They may also prevent cancellation by voting before the next two November general elections pass. However, if they use this method, they will have to overcome the Election Day challenge procedures outlined in question 17.

Voters who have been challenged by another elector may prevent cancellation by appearing before the clerk and answering the challenge within thirty days of when they receive notice of the challenge. M.C.L.A. 168.512. Voters who have been challenged by the clerk may prevent cancellation by voting before the next two November general elections pass, but will have to overcome Election Day challenge procedures.

11. What procedure has the state adopted to notify voters whether their provisional ballots were counted; what procedures if any has the state adopted to notify the public of the percentage of provisional ballots that have been rejected as ineligible and the specific ground for this rejection?

Provisional ballots tabulated on Election Day

Some ballots, though termed provisional, are counted just like regular ballots on Election Day (see question 5). M.C.L.A. 168.523a(4). As long as the voter is allowed to cast one of these ballots, their vote should count. The election inspector should provide the voter a notice of this under MCLA 168.523a(7).

“Envelope” provisional ballots

For the other type of provisional ballots, termed “envelope” ballots, the election inspector shall provide the voter with a notice that the voter’s information will be verified by the clerk of the jurisdiction within six days after the election to determine whether the ballot will be tabulated and, if the ballot is not tabulated, to determine the reason it was not tabulated. M.C.L.A. 168.523a(5). A clerk of a jurisdiction shall provide a free access system for the voter to determine whether the ballot was tabulated. The free access system may include a telephone number that does not require a toll charge, a toll-free telephone number, an internet website, or a mailed notice.

Information about treatment of provisional ballots en masse

Counties must keep track of all provisional ballots cast and whether they were counted. M.C.L.A. 168.829. The counties send these reports to the Secretary of State, after which time they become available for public inspection.

12. What types of regulations apply to third-party organizations and individuals who wish to help register voters?

Michigan has no special rules that apply to people and organizations that help register voters (see Secretary of State’s website under “Is there a way I can help register voters?”). However, general rules prohibiting fraud and abuse apply equally to people registering to vote and those assisting them.

For instance, no one shall aid another in registering where the registrant is not eligible to vote in that precinct. M.C.L.A. 168.519.

Identification

13. What is the last date for the submission of new registration forms, and what ID must be submitted with these forms?

Voter registration forms must be “accepted” on the thirtieth day before the election or on an earlier day. M.C.L.A. 168.497. Voters must provide driver’s license or social security numbers, where available. As an alternative, voters may supply a copy of certain forms of identification.

Any voter who seeks to register must include one of the identification numbers specified by the Help America Vote Act to allow state officials to verify the application. This means such voters must supply their driver’s license numbers or, if they have no driver’s license, their social security numbers. (Michigan’s statute says that the registration application must contain the “driver’s license or state personal identification card number of the elector, if available.”) 42 USC 15483(a)(5) ; M.C.L.A. 168.495. If the voter has neither a driver’s license nor social security number, HAVA requires Michigan to assign a special number used for voter identification purposes. Id. These requirements apply to all voters who seek to register, not just voters who have never before voted in Michigan (HAVA states that registration applications that do not meet this requirement “may not be accepted….”). Nevertheless, the instructions on the registration form state that provision of this information is only required for first time voters (see instructions on form).

As an alternative to writing these numbers on the form, Michigan allows the voter to send a copy of an acceptable form of identification to the county, city or township clerk (see instructions on form). Acceptable forms of identification include valid photo identification, such as a driver license or personal ID card, or a copy of a paycheck stub, utility bill, bank statement, or a government document which lists the applicant’s name and address. To be valid, the address on the identification must be the same as that written on the application. While providing one of these documents may satisfy the state of Michigan, it does not necessarily satisfy the requirements of 42 USC 15483(a)(5), described above.

Provision of this information isn’t strictly required. The form indicates that voters who fail to comply may provide the necessary information on Election Day. The form also exempts those who hand-deliver the registration application, who are disabled, or who are eligible to vote under the Uniformed and Overseas Citizens Absentee Voting Act. First-time voters must vote in-person for their first election unless one of these exceptions apply or the voter is sixty years old or older. M.C.L.A. 168.509t.

14. What ID must be submitted at the polls to cast a regular rather than provisional ballot?

Most voters need not submit any ID at the polls. However, first-time mail-in registrants and voters whose names do not appear on the precinct lists must present ID to cast a regular ballot.

General requirements

Voters who vote at the polls should, but need not, present one of the following forms of ID at the polls to cast a regular ballot:

A voter identification card mailed to the voter under M.C.L.S. 168.499 after successful registration or change of address;
A driver’s license or chauffeur’s license;
An “other generally recognized picture identification card.” M.C.L.A. 168.523.

The statute provides that voters who do not supply one of these forms of identification may still cast a regular ballot as long as their names appear on the rolls and they sign an affidavit stating identification is not available. Id. The statute states that the ballots of such voters are “subject to” challenge (see question 17), but there is some question whether this rule is enforced: In 1997, the Michigan attorney general advised that 168.523’s ID requirement– even with the affidavit option– violated the Michigan constitution. The Michigan Secretary of State’s website states that no ID is required (see here).

In addition to presenting identification, the voter will sign a ballot application and an election official shall compare it to a copy taken from the voter registration card. M.C.L.A. 168.523. The voter may also provide information regarding the voter’s address, date of birth, or other information to allow election officials to compare it to information on file.

First-time mail-in registrants

First-time mail-in registrants must provide identification as required by HAVA. M.C.L.A. 168.509t. HAVA requires (with some exceptions) first-time mail-in registrants to provide at the polls current and valid photo identification, a current utility bill, bank statement, government check, paycheck or other government document that shows the name and address of the voter. 42 U.S.C.A. s 15483(b)(1). The Secretary of State interprets the HAVA scheme to exempt voters from this requirement if they supply their driver’s license or other personal identification numbers on their voter registration forms (see page 4). First-time mail-in registrants who are subject to the HAVA ID requirement and are “unable or unwilling to produce an acceptable form of ID must be issued a ‘provisional’ ballot’” (page 4). They cannot cast a regular ballot.

Voters whose names do not appear on the rolls

Voters whose names do not appear on the rolls may vote a regular ballot if they present a receipt showing acceptance of their registration applications. M.C.L.A. 168.523a; Procedure for Issuing a Ballot If Voter’s Name Does Not Appear on Registration List, page 1. Voters whose names do not appear on the rolls and who cannot present such a receipt may not cast a regular ballot. However, if voters present one of the following types of identification and meet other requirements, they may cast a special form of provisional ballot that is counted on Election Day like an ordinary ballot (it is actually a regular ballot, but processed differently):

1. A Michigan operator’s or chauffeur’s license;

2. a department of state issued personal identification card;

3. an “other government issued photo identification card”;

4. certain student ID cards.

M.C.L.A. 168.523a; Procedure for Issuing a Ballot If Voter’s Name Does Not Appear on Registration List. The statute requires that the ID “contains a current residence address to establish his or her identity and residence address,” but allows the voter to present further proof of residence if the residence identified on the ID is not current.

Voters whose names do not appear on the rolls and who fail to present a registration receipt or proper ID may cast a traditional provisional ballot. Id.

15. What ID is necessary to receive an absentee ballot? What ID must be submitted when casting an absentee ballot in order for it to count?

The procedures for obtaining an absentee ballot do not require presentation of ID (see here). M.C.L.A. 168.759. However, the clerk will attempt to verify the signature on the ballot application with a sample taken from the voter’s registration application. M.C.L.A. 168.761(2).

The same scheme applies to return of the completed envelope. Id.

HAVA would ordinarily require first-time mail-in registrants who vote absentee to present HAVA-approved ID, but Michigan requires these individuals to vote in person. M.C.L.A. 168.509t.

Registration/Voter Eligibility

16. In what circumstances if any are previously convicted felons eligible to vote?

Convicts currently serving sentences in jail or prison are not eligible to register or vote. M.C.L.A. 168.492a ; M.C.L.A. 168.758b. Once released, they may register and vote.

17. In what circumstances, either prior to or on Election Day, may the eligibility of a registered voter be challenged by another voter or by an election officials? If challenged, what opportunity does the registered voter have to defend his or her eligibility, and is the consequence of an unsuccessful defense the obligation to cast a provisional ballot, or the denial of any ballot altogether?

Pre-Election Day challenge

Any registered voter in a municipality may challenge the registration of any other voter in that municipality by submitting a written affidavit to the clerk claiming that that individual is not entitled to vote. MCLS 168.512. The clerk will send notice to the challenged voter’s last known address that will include the grounds for the challenge. The challenged voter has thirty days to appear before the clerk or file an affidavit answering the challenge. If the voter does not answer the challenge or the answer does not satisfy the clerk, the clerk shall cancel the voter’s registration. A person who uses this challenge procedure without good cause commits a misdemeanor.

Challenge at the polls

Election inspectors must challenge a voter at the polls if the inspector knows or has good reason to suspect the voter is not qualified and eligible to vote in this precinct. M.C.L.A. 168.727 ; Bay County Democratic Party v. Land, 347 F.Supp.2d 404, 430 (E.D.Mich., 2004). This includes the situation where the election inspector compares the voter’s signature on the ballot application does not match up with that kept on file. M.C.L.A. 168.523(1) ; Michigan State UAW Community Action Program Council v. Austin, 198 N.W.2d 385, 399 (Supreme Court of Michigan, 1972).

Election inspectors must also challenge voters if a challenge appears in connection with the voters’ names in the rolls (see question 10 for a list of some situations where the rolls may be so marked). This mark will appear when an election clerk previously made a good faith determination that the voter’s registration was obtained fraudulently. M.C.L.A. 168.521.

Election inspectors also may, but need not, challenge voters who requested an absentee ballot but now attempt to vote in person claiming the ballot was lost, destroyed or never received. M.C.L.A. 168.727.

Any registered voter present at the polling place may challenge voters at the polls if the challenger knows or has good reason to suspect the challenged voter is not qualified and eligible to vote in this precinct. M.C.L.A. 168.727. These voters also may challenge voters who requested an absentee ballot but now attempt to vote in person claiming the ballot was lost, destroyed or never received.

Absentee/Early Voting

18. What if any specific need must a voter assert in order to receive an absentee ballot (or to vote early)? What are the earliest and latest dates by which a voter can submit an absentee ballot by mail, or in person?

Voters must assert that they are physically unable to come to the polls, are unable to come to the polls for religious reasons, are working as a poll worker in another precinct, are at least sixty years old, are expecting to be absent during the time polls are open, or are confined awaiting trial on criminal charges. The deadline for submitting an absentee ballot by mail or in person is 8 p.m. on Election Day.

(For official information regarding absentee voting, see here.)

Applying for an absentee ballot

In order to submit an absentee ballot by mail or in person, MCLS § 168.758 requires a voter to be registered to vote in Michigan and meet one or more of the following requirements:

on account of physical disability, the voter cannot without another’s assistance attend the polls on the day of an election;
on account of the tenets of his or her religion, the voter cannot attend the polls on the day of the election;
the voter cannot attend polls on the day of an election in the precinct in which he or she resides because of being an election precinct inspector in another precinct;
the voter is 60 years of age or older;
the voter is absent or expects to be absent from the township or city in which he or she resides during the entire period the polls are open for voting on the day of an election;
the voter cannot attend the polls on election day because of being confined in jail awaiting arraignment or trial.

Voters seeking an absentee ballot must fill out an application stating one of these grounds as the basis for their request. MCLA 168.759. The application may be submitted at any time “during the 75 days before an election, but no later than 2 p.m. of the Saturday before the election” in order to be processed in time for the election. Id.

An exception to this deadline applies for individuals who become disabled or who suffer sickness or death in their families at a time that makes it impossible to meet the ordinary deadline. MCLA 168.759b. These individuals may request an absentee ballot at any time prior to 4 p.m. on Election Day. The voter must state his or her basis for requesting the ballot in the request.

Another exception exists for voters who personally appear at the clerk’s office and request and vote an absentee ballot at that time. MCLA 168.761. These individuals may request and vote their ballots on any day prior to the election except Sunday or a legal holiday. The statutory language and the Secretary of State’s interpretation suggest this procedure may not be used on Election Day itself (see page 5).

Voting an absentee ballot

To count, the ballot must be received by the clerk prior to the close of the polls on Election Day. MCLA 168.764a; 168.764b; Lantz v. Southfield City Clerk, 628 N.W.2d 583, 585 (Mich.App., 2001); also see here. Michigan polls close at 8 p.m. MCLA 168.720. One Michigan appellate court has held that this means the ballot must physically come into the possession of the clerk by 8 p.m.; submitting a ballot postmarked by the deadline is not sufficient. Id.

19. If it were discovered that supporters of the winning candidate had paid (or otherwise improperly induced) voters to cast their absentee ballots for that candidate, and the number of “bought” absentee ballots exceeded that candidate’s margin of victory, would the state judiciary invalidate the election result and rule the runner-up to be the rightful winner?

Yes.

Those seeking to invalidate an election must show that the complained irregularities changed the outcome of the election. Rutter v. Board of Ed. Of Handy No. 1 Fractional School Dist., 102 N.W.2d 192, 195 (Supreme Court of Michigan, 1960); Vorva v. Plymouth-Canton Community School Dist., 584 N.W.2d 743, 746 (Mich.App., 1998). In such a case, the court may usurp the original incumbent from office and replace him or her with the candidate entitled to the office. MCLA 600.4505; MCR 3.306; see generally Gallagher v. Keefe, 591 N.W.2d 297 (Mich.App., 1998). There are no known Michigan cases where a runner-up candidate-plaintiff alleged that an opposing candidate won an election only by “buying” votes. However, if such a plaintiff made this showing, it would certainly satisfy the applicable burden of proof and entitle the plaintiff to the office.

MCLA 600.4545 outlines a separate but similar process for individuals seeking to overturn the result of a vote on a ballot issue. Stokes v. Clerk of Bd. of Canvassers of Monroe County, 184 N.W.2d 746, 748 (Mich.App. 1970).

However, the above rules do not apply to elections for the Michigan Legislature, as the respective Houses, not the courts, have final say on their membership. Attorney General v. Board of Canvassers of Seventh Senatorial Dist., 155 Mich. 44, 46 (1908). The same rule applies to elections to the US House of Representatives. McLeod v. Kelly, 7 N.W.2d 240, 242 (Michigan Supreme Court, 1942).

20. (A) What are the procedures for counting absentee/early ballots, as opposed to regular ballots?

The procedures used differ depending on the size of the counting municipality and the number of precincts within it.

Procedures for municipalities that must use Absentee Voter Counting Boards

Municipalities that use voting machines and have three or more precincts or less than 500,000 residents must count their absentee ballots using absent voter counting boards under MCLA 168.792a. The Board of Election Commissioners must establish these boards and appoint at least three inspectors to them using the process described by MCLA 168.674 (the same process used for appointment of members of Boards of Election Inspectors). When completed absentee ballots are received by the municipal clerk, the clerk will compare the signatures on the submission envelopes to the signatures on file. MCLA 168.792a(6). When the signatures do not match, the clerk will not forward them to the Absent Voter Counting Board but will mark them as rejected and put them in a secure place. This process is distinct from that available to jurisdictions with two or fewer precincts or more than 500,000 residents — in those jurisdictions, the Board of Elections Inspectors, not the municipal clerk, makes the signature comparison (or at least the Board participates in the process). MCLA 168.766(1).

Processing the ballots

When the signatures do match, the clerk will forward them to the Absent Voter Counting Board. The Board will then “process the ballots and returns in as nearly as possible the same manner as ballots are processed in paper ballot precincts.” MCLA 168.792a(9). Processing ballots is a separate procedure from counting them, and precedes counting of the ballots. The Michigan Secretary of State has instructed Absentee Voter Counting Boards to process ballots using the following steps (only steps that affect whether the vote is counted are listed):

Check to see whether the clerk filled in the date the clerk received the ballot. If not, return the ballot to the clerk “for immediate correction.”
Check to ensure the voter signed the return envelope. If there is no signature, return the ballot to the clerk so the clerk can attempt to obtain the signature (voters have until the close of polls — 8 p.m. — to add the signature).
Check to see that the ballot stub number agrees with the number of the ballot the voter was issued, which should be recorded in the poll book. If the number does not agree and there is no satisfactory explanation for this, process the ballot as a challenged ballot. (This means the ballot is marked for record-keeping purposes under 168.645 and 168.646. No special rules concerning how challenged ballots are counted could be found.)

Counting the ballots

No special rules apply for counting ballots in municipalities that use voting machines and have three or more precincts or less than 500,000 residents– the ballots are counted in the ordinary way (see Procedures that need not use Absentee Voter Counting Boards, below). MR 168.786. However, special rules do apply to how counted votes are reflected in the recordkeeping. Specifically, the local Board of Commissioners may choose to record counted votes by casting them on a voting machine just like an in-person voter would do on Election Day. MCLA 168.792a. If the Board of Commissioners chooses to use this procedure, the chair of the Absentee Voter Counting Board or other designee will cast each vote on the machine in full view of the Absentee Voter Counting Board, party challengers, and any other lawfully present persons. The vote will not be cast on the machine until “each member of the absent voter counting board is satisfied that the arrangement of the voting pointers fully carries out the intent of the absent voter as shown by the… marks on the absent voter ballot.” MCLA 168.792a(12). When all the counted votes are recorded in this way, the operating lever of the machine will be sealed and the counted ballots placed in a bag and sealed.

Procedures for municipalities that need not use Absentee Voter Counting Boards

Municipalities that use voting machines and have two or fewer precincts or more than 500,000 residents may use the 168.792a procedures outlined above, or may choose to use procedures outlined by MCLA168.791 and other statutes. Municipalities that do not use voting machines may also choose either set of procedures.

If the Board of Commissioners chooses the ordinary procedures, the clerk shall deliver the completed absent voter ballots to the Board of Election inspectors in the appropriate precinct. MCLA 168.765. The Board will then examine the ballot envelope, including the signature contained on it, together with the Qualified Voter File, the voter registration card, and the absentee ballot application completed by the voter to determine whether the voter “has not voted in person, that he is a registered voter, and that the signature on the statement agrees with the signature on the registration record….” MCLA 168.766. The Board will also examine the statement contained on the absentee ballot envelope to see that it is properly executed.

The ballot will be rejected if the Board finds the signature on the ballot envelope does not match with the one on file, if the Board finds that the voter has died since casting the ballot, or if the Board finds the vote was illegal for any other reason. MCLA 168.767. Secretary of State training materials indicate that the validity of the ballot is determined by majority vote of the Board (see page 10). If the vote is rejected, the reasons for rejection will be marked on the envelope and the chairman of the Board will provide his initials.

On the other hand, if the Board finds that the vote is legal, the Board will open the envelope, remove the ballot stub, place the ballot in the box of votes to be counted and make a record showing that the voter voted absentee. MCLA 168.768.

20. (B) Who, if anyone, can observe the counting of absentee ballots?

The initial canvass conducted by the Board of Election Inspectors is open to the public (see page 7 of training materials). M.C.L.A. 168.801. Challengers may also observe counting of the ballots, regardless of whether the Absent Voter Counting Board or Board of Election Inspectors conducts the count. M.C.L.A. 168.792(a)(10); 168.733.

20. (C) On what grounds may election officials reject an absentee ballot as ineligible for counting?

The ballot will be rejected if the Board finds the signature on the ballot envelope does not match with the one on file (or if no signature is obtained), if the Board finds that the voter has died since casting the ballot, or if the Board finds the vote was illegal for any other reason. MCLA 168.767. If the vote is rejected, the reasons for rejection will be marked on the envelope and the chairman of the Board will provide his initials.

20. (D) What notification, if any, must the election officials provide — either to the voters who cast these ballots or to the public — that these absentee ballots were rejected?

There is no known notification requirement.

21. What pre-certification procedures, if any — in other words, separate from post-certification judicial contest of the outcome of the election itself — exist for disputing the exclusion of absentee ballots?

Challengers may attempt to persuade election inspectors to count an absentee ballot, but have no formal power to see that such a ballot is counted.

There is no way to force inspectors to count an absentee ballot they are determined not to count. However, challengers appointed under MCLA 168.730 may observe all aspects of the counting process and bring any improper handling of a ballot to the attention of an election inspector. MCLA 168.733. Training materials supplied by the Secretary of State also indicate challengers may take notes, although they may not physically touch ballots, poll books, or other materials. Under this scrutiny, counting officials may follow the relevant rules more closely.

22. Under what circumstances if any may a voter who has requested an absentee ballot nonetheless cast a regular or provisional ballot at the polling place on Election Day? (Only when the voter has not received the requested absentee ballot, or for another reason, such as the voter wishes to change a vote from one candidate to another?).

The voter may vote by providing the original unmarked absentee ballot at the polls or signing an affidavit that the voter did not cast the absentee ballot.

A voter who requested an absentee ballot may vote on Election Day so long as the voter has not cast the absentee ballot. M.C.L.A. 168.769. If the voter brings the absentee ballot to the voting place then he or she may vote normally. If the voter did not receive the absentee ballot or for whatever reason did not bring the ballot to the polling place, the voter may still vote a normal ballot, but first must sign an affidavit affirming that the absentee ballot has not been cast. A voter required to sign such an affidavit is subject to challenge under Michigan’s challenge statute, M.C.L.A. 168.727 (see question 17). If the voter fails to supply the unmarked ballot, officials are instructed to contact the clerk’s office to determine whether the voter already cast an absentee vote (see page 2 of training materials).

23. What procedures if any does the state have for preventing double-voting by a voter who has cast both an absentee and an in-person ballot?

Before allowing voters to vote in-person, officials check to see that voters have not already cast an absentee ballot. Also, prior to counting any absentee ballot, officials check to make sure that the voter did not already vote in person.

Blocking in-person votes of those who already voted absentee

Inspectors will not allow voters to cast an in-person ballot if the inspector finds the voter already returned a completed absentee ballot, and the law provides methods for inspectors to identify such voters. For instance, when the municipal clerk supplies a voter with an absentee ballot, the clerk shall record this fact. MCLA 168.760; Korn v. Southfield City Clerk, 2004 WL 1672341 at 3 (Mich.App., 2004)(unreported). It is also clear from statutes that clerks record the receipt of completed absentee ballots, although the details of this system are not clear. MCLA 168.792a(6); see also Korn, supra, at 3. Using this information, election inspectors will require individuals who requested an absentee ballot but now seek to vote in-person to either produce the unmarked absentee ballot or sign an affidavit stating that the ballot has not been voted. MCLA 168.769. If the voter fails to supply the unmarked ballot, officials are instructed to contact the clerk’s office to determine whether the voter already cast an absentee vote (see page 2 of training materials).

Blocking absentee votes of those who already voted in person

Before counting an absentee ballot, election inspectors will determine whether that voter has voted in person (see page 3 and 10 of training materials). M.C.L.A. 168.766. They may do this by reference to the poll book, in which the identities of all those allowed to vote in person should be recorded. The inspectors may use the poll book to help make this determination. MCLA 168.735.

Poll Workers/Polling Procedures

24. Who may observe the voting process at polling places on Election Day?

Anybody.

Challengers

Challengers may observe the voting process and challenge any procedure that is not being performed properly. M.C.L.A. 168.733. They may take notes on what they observe. They may remain for both the casting and canvassing of votes.

A written certificate from the presiding officer of the organization appointing the challenger shall be sufficient to admit the challenger to the polls if it states the challenger’s name and the precinct number. M.C.L.A. 168.732.

Challengers are appointed by political parties, PACs and citizens groups using a process described in M.C.L.A. 168.730-.731.

Public right of access

The Michigan Secretary of State instructs officials that any member of the public may observe the casting of ballots, although the basis for making this statement is unknown (see page 4). M.C.L.A. 168.727 states that any voter may challenge another voter at the polls. However, it does not explicitly state that the challenging voters have a right to be in the polls in the first place, except for the purpose of voting. On the other hand, the Secretary of State claims that members of the public do not have the right to challenge voters as the polls (see page 4).

The public has a right to view ballots as they are counted. M.C.L.A. 168.801.

25. What procedures and protocols, if any, does the state have in place to assure that poll workers and other local election officials follow statewide rules uniformly and do not engage in county-by-county, or even precinct-by-precinct, variation in the administration of rules concerning voter eligibility and the counting of ballots?

M.C.L.A. 168.31 requires the Secretary of State to establish a program of “comprehensive training and accreditation” of all election officials and precinct inspectors. Bay County Democratic Party v. Land, 340 F.Supp.2d 802, 807 (E.D.Mich., 2004). This includes requiring all new officials to attend an initial course of instruction within six months before the date of the election.

A memorandum issued by the Secretary of State regarding the training of election officials may be found here.

Training for precinct inspectors

The local clerk will train precinct inspectors within twenty days of each election. M.C.L.A. 168.683. No precinct inspector will be allowed to serve unless he or she has attended at least one training session within the last two years or passed an examination in the last two years. Any examination developed by local officials must be approved by the Secretary of State.

Training for local clerks

The director of the State Board of Elections will train the local clerks on how to train precinct inspectors. M.C.L.A. 168.33. The local clerks’ training will occur before each general November election and other elections the state Board considers advisable. Where local clerks have not been accredited train precinct inspectors, the director of the state Board will train them.

26. (A) What rules exist determining the number of voting machines?

The number of voting machines depends on the type of election at issue.

In November elections and the primaries preceding them

Precincts with less than 1,000 registered voters must have at least one voting machine for every 500 voters. M.C.L.A. 168.661. Precincts with more than 1,000 voters but less than 3,000 must have at least one voting machine for every 600 voters. Precincts with more than 2,999 voters will be broken down into smaller precincts.

In other elections

In other elections the number of voting machines will be determined at the discretion of the local election commission. Id. In making this determination, the commission will consider the following: the number of choices the voter must make, the percentage of registered voters who voted at the last similar election in the jurisdiction, and the intensity of the interest of the electors in the jurisdiction concerning the candidates and proposals to be voted upon.

26. (B) What rules exist to determine the number of poll workers?

Officials will assign at least three election inspectors to each precinct “as many more as in… [their] opinion is required for the efficient, speedy, and proper conduct of the election.” M.C.L.A. 168.674; pages 2-3 of training materials. The local Board of Election Commissioners will appoint one of these inspectors as chairperson. At least one inspector at each precinct will be from each “major political party” and shall appoint, as nearly as possible, an equal number from each major political party. If before Election Day the Board learns one of the inspectors will not be able to attend, the chairperson of the Board will appoint a replacement.

26.(C) What rules exist to determine the number of provisional ballots?

Unknown. Michigan law does not include any rules that specifically address the number of provisional ballots. The Secretary of State has not issued any publicly available materials regarding this subject. However, there are rules about the number of ballots generally.

Each precinct shall have at least 125% of the number of ballots that were cast in the corresponding primary held four years earlier. M.C.L.A. 168.563; 168.689; Southeastern Michigan Fair Budget Coalition v. Killeen, 395 N.W.2d 325, 329 (Mich.App., 1986). This provision does not explicitly state that it applies to provisional ballots.

26. (D) What additional procedures, if any, are in place to avoid long lines at polling places?

Any person in line at the close of polls will be allowed to vote. M.C.L.A. 168.720. Polls shall be open “until 8 o’clock in the afternoon and no longer.” Id.

The Board of Inspectors may make regulations reasonably limiting the time for voting a ballot. M.C.L.A. 168.742.

26. (E) What contingency plans are in place if poll workers are unable to get voting machines to work according to their instructions? If poll workers do not report for duty on Election Day?

If voting machines fail, officials may use special paper ballots or order a new election. If poll workers do not appear, the voters at the polls may select replacements from among their number.

If voting machines malfunction

If voting machines fail, officials may approve the use of special emergency ballots. M.C.L.A. 168.782b; Southerland v. Fritz, 955 F.Supp. 760, 762 (E.D. Mich., 1996). This procedure will only be used in an emergency. One example of an emergency is when a voting machine becomes disabled, cannot be repaired, and there is no replacement machine.

Also, if voter cannot cast a valid vote due to mechanical malfunction, the voter may petition the Board of Canvassers to invalidate the election and call a special election. M.C.L.A. 168.831; Vorva v. Plymouth-Canton Community School Dist., 584 N.W.2d 743, 745 (Mich.App., 1998). The petition must be filed within ten days of the election. M.C.L.A. 168.832. The Board will hold a meeting regarding the petition within five days of its receipt, and will grant the petition only if both of the following apply: voters could not cast their votes due to a mechanical malfunction; the number of voters who could not cast their votes exceeds the margin of victory. M.C.L.A. 168.835; 168.836. Special elections ordered under this section shall be performed by mail. M.C.L.A. 168.837.

If poll workers do not report on Election Day

There should be three election inspectors at each precinct. M.C.L.A. 168.672. If there are not enough inspectors present, the voters present at the polls may select replacements from among themselves. However, not more than two inspectors present shall be of the same political party.

27. What rules are in place to ensure that disabled voters are able to cast a ballot at their polling places on Election Day?

The legislative body of each jurisdiction shall ensure that all polling places are accessible to the disabled. M.C.L.A. 168.662. The Secretary of State has issued the following checklist to assist local officials in fulfilling this duty.

Disabled voters may obtain help from election inspectors by stating that they cannot mark their ballots. M.C.L.A. 168.751. Blind voters may obtain assistance by a family member or other person of their choice.

In addition, at each precinct there must be at least one polling station designed to accommodate elderly and disabled voters. M.C.L.A. 168.795; page 7 of guidelines issued by the Secretary of State in 2004. The station must provide the same opportunity for access, participation, independence and secrecy that non-disabled voters enjoy. The guidelines also indicate that the precinct should be equipped with a magnifying glass and audio and Braille voting instructions. It is unknown whether the Secretary has issued any contrary or additional guidelines since the issuance of these original guidelines.

28. In the event that problems arise on Election Day, who determines whether to keep polls open later than originally planned and what rules, if any, guide this determination?

Michigan law does not provide any mechanism for keeping polls open late. Rather, it provides that polls shall close at eight o’clock and shall be open “no longer.” M.C.L.A. 168.720. In Southerland v. Fritz, 955 F.Supp. 760 (E.D.Mich., 1996), a federal court ruled that the “no longer” language prevents keeping polls open later than eight o’clock under any circumstances. Id. at 761.

29. (A) What rules if any does the state have to require election officials to notify voters of their correct polling places?

When polling places are changed due to precinct rearrangement, officials will send voters a notice of their new polling places by first class mail. M.C.L.A. 168.660. Officials may also choose to post public notices in two locations in each precinct. No other laws requiring notification of polling places were found.

29. (B) What remedies exist, if any, in the event that officials fail to comply with such rules?

No law specifying a remedy for failure to issue such notice was found. However, failure to give notice might create a basis for an election contest lawsuit (see questions 43-47). In addition, the Michigan Secretary of State has instructed officials to count provisional ballots that are cast in the correct precinct even if the state’s precinct-assignment system initially indicated the precinct was wrong.

If the poll worker or clerk determines that the voter is at the incorrect polling place and is willing to travel to the correct polling place, then the poll worker should give the voter directions to the correct polling place. M.C.L.A. 168.523a. If the voter declines to travel then he or she can vote provisionally but should be informed that his or her ballot will not count if it is confirmed that the voter is in the incorrect polling place.

Although the clerk generally will not count provisional ballots cast in the wrong precinct, the clerk will “make every effort to accurately confirm that the voter did, in fact, vote in the wrong precinct …” before rejecting them. See training materials at 3. This evaluation must include a check of the QVF precinct-assigning system “to verify that the voter was not assigned to the wrong precinct in error.” Id. If a check of the precinct-assigning system indicates the voter actually voted in the proper precinct, the provisional vote will be counted. The materials do not state whether a provisional vote will be counted in the situation where a voter appears at the correct precinct but votes at another precinct at the direction of election officials.

Provisional Voting

30. Who cannot cast a regular ballot at the polls, but may cast a provisional ballot?

First-time mail registrants who fail to present proper ID and voters whose names do not appear on the rolls must cast provisional ballots.

I. First-time mail-in registrants who fail to present appropriate ID

II. Voters whose names do not appear on the rolls

Voters whose names do not appear on the poll lists and who cannot present receipts showing proper registration must cast provisional ballots. M.C.L.A. 168.500d; 168.523a. However, there are two types of provisional ballots: One that is counted on Election Day, and one called an “envelope ballot” that is counted after an examination period like traditional provisional ballots. The type of ballot the voter is allowed to cast depends on whether the voter is able to present proper identification at the polls.

A. Voters whose names do not appear on the rolls, but who pass scrutiny with the municipal clerk and present proper identification with proof of residence

If the election inspector is unable to reach the clerk or the clerk indicates the voter is registered elsewhere, the voter cannot cast the first type of provisional ballot.

Again, this ballot is counted like an ordinary ballot, meaning that it is counted if cast.

B. Voters whose names do not appear on the rolls and who either do not pass scrutiny with the municipal clerk or who fail to present proper identification and proof of residence at the polls

The other type of ballot (sometimes referred to as an “envelope” ballot) is cast when the election inspector cannot contact the election clerk, when the voter appears to be in the wrong precinct, or when the voter fails to present proper ID with current address in the precinct. M.C.L.A. 168.523a(5). Unlike the first type of provisional ballot, this ballot will not necessarily be counted if cast.

31. When will a provisional ballot be counted?

Non-envelope provisional ballots will be counted if cast. Envelope provisional ballots will be counted if the clerk locates a valid voter registration record or the voter establishes proof of identity and residence within six days of voting.

I. Non-envelope provisional ballots

This type of provisional ballot is counted like an ordinary ballot after it is cast (training materials indicate that it is actually a regular ballot, but it packaged for processing like a challenged ballot under M.C.L.A. 168.745 and .746).

II. “Envelope” provisional ballots

A. Envelope ballots issued to voters whose names did not appear on the registration list

B. Envelope ballots issued to first-time mail-in registrants whose names appeared on the registration lists, but who failed to comply with HAVA’s ID requirements

32. If a new voter registration card is rejected because of incomplete information (signature missing, for example), and a provisional ballot is cast by that voter, in what circumstances (if any) will the state count that provisional ballot as a valid vote?

Non-envelope provisional ballots will be counted if cast. Envelope ballots will be counted in one of two situations. First, they will be counted “if a valid voter registration record for the elector is located….” M.C.L.A. 168.813. Second, they will be counted if the voter supplies proof of identity and residence within six days of voting and swears to have submitted a proper registration application (see previous question). M.C.L.A. 168.813; 168.523a. The voter described in the question might end up casting either type of ballot, depending on whether the voter presented proper ID and passed muster with the municipal clerk (see question 30).

33. (A) Who are the state officials that determine whether provisional ballots will count as valid votes? Are these officials elected, appointed, partisan, or non-partisan?

The municipal (city or township) clerk determines whether to count provisional “envelope” ballots. M.C.L.A. 168.813. City clerks are elected, appointed, partisan or non-partisan depending on the charter of each city. M.C.L.A. 168.321. Township clerks are elected. M.C.L.A. 168.341.

33. (B) Is this review of provisional ballots conducted in public or behind closed doors?

No information could be found regarding this topic. The public has a right to view ballots as they are counted in polling places, but provisional ballots are not counted at polling places. M.C.L.A. 168.801; 168.523a. They are forwarded to the municipal clerk.

33. (C) How soon after Election Day must this review of provisional ballots be complete?

The review must be complete within six days of the election. M.C.L.A. 168.523a. The municipal clerk shall forward the final tabulation within seven days. M.C.L.A. 168.813.

33. (D) Is it subject to any form of administrative review or appeal?

No provision could be found creating or prohibiting review of the municipal clerks’ handling of provisional ballots specifically. However, the Secretary of State has created an administrative complaint and hearing process to deal with alleged violations of HAVA’s Title III. HAVA Compliance and Procedures and Processes Memo, page 8. Provisional voting is within the scope of Title III, at least in the case of voters who are issued a provisional ballot because they failed to comply with HAVA’s ID requirements. 42 USCA s 15483(b)(2)(B).

34. If a voter is required to cast a provisional ballot because the voter lacks required ID when going to the polls, how much time (if any) is the voter permitted to provide the necessary ID in order for the provisional ballot to count?

The voter must present the required information within six days of the election. M.C.L.A. 168.523a; 168.813. The voter may present the information in person or by fax or mail. Procedure for Handling “Envelope” Ballots Returned to Clerk’s Office, page 2.

35. If a previously registered voter has moved within the same state, but has not updated the voter’s registration, and if the voter casts a provisional ballot at the correct precinct for the voter’s new address, will the provisional ballot count?

Maybe, but only if the voter moved from one place in the municipality to another place in the municipality. If the voter moved out of his or her original municipality, the vote will not count.

The distinction comes from Bay County Democratic Party v. Land, 347 F.Supp.2d 404 (2004), in which the US District Court for the Eastern District of Michigan determined that, for purposes of granting a preliminary injunction, there was a substantial likelihood that Michigan’s voting statutes together with HAVA and the NVRA require Michigan to count provisional ballots cast by voters in the wrong precinct as long as the votes were cast in the right “jurisdiction” (that is, city, village or township). Id. at 431. Michigan does not appear to have explicitly amended its laws or procedures in response to this opinion, so it is not certain that the vote would count even if the voter moved within the municipality.

Unless this interpretation applies to save the voter, he or she will be treated just like any other unregistered voter attempting to vote (see question 31). Any provisional ballot should not be counted because the municipal clerk will not be able to locate any valid registration under M.C.L.A. 168.813(1) and the voter will not be able to truthfully affirm that he or she submitted a voter registration application in the present jurisdiction on or before the close of registration as required by M.C.L.A. 168.523a (see training materials, page 2). Note that the inability to fill out the affirmation would prevent the voter from being able to cast either type of provisional ballot. However, theoretically speaking, the voter could fill out a false affirmation and cast a provisional ballot that might be counted if officials failed to discover it was false.

It should be noted that there are some other code provisions that address slightly different situations:

M.C.L.A. 507a allows voters who moved outside of their original counties within sixty days of Election Day to vote in their original counties, provided they were registered there and did not update their registrations for the new counties.

M.C.L.A. 507b allows voters who moved within a county to re-register and vote a regular ballot in the new location if he or she moved within sixty days of the election. M.C.L.A. 168.507b. This is true even when the voter waits to re-register until after the close of registration.

36. If a voter casts a provisional ballot at a precinct that is not the correct one for the voter’s current address, will the provisional ballot count?

See previous question.

Recounts/Contests

37. What rules does the state have for protecting the chain of custody of ballots and voting counting equipment, and what remedies exist – including the possibility of ordering a new election – if those chain of custody rules are violated?

Michigan law contains very detailed rules about how ballots and voting equipment should be handled.

Chain of custody rules for ballots

After being printed, ballots will be delivered to the county clerk wrapped twice, secured with a red paper seal, and tied. MCLA 168.713; M.C.L.A. 168.716. The red paper seal should identify the precinct the package is destined for and identify the number and kind of ballots within. M.C.L.A. 168.716. The official who determined the number and type of ballots within will sign the seal. Id. The county clerk will then distribute the ballots to each municipal clerk, and take receipts. M.C.L.A. 168.714. The municipal clerks will not open the ballot packages but shall keep them in a secure place until they are delivered to the precinct officials. M.C.L.A. 168.715. Upon delivering the ballots to the precinct officials, the clerk shall take a receipt from these officials and file it in the clerk’s office. Id. Where electronic voting machines are used, the ballots will be delivered to precinct officials in a transfer case secured with a metal seal setting forth the number of ballots in the transfer case. MI ADC R. 168.779. The seal will also indicate that the ballots were counted and sealed by the clerk or by an authorized assistant. MI ADC R. 168.779.

On Election Day, one of the precinct inspectors in the sight of all other inspectors will open the ballot packages. M.C.L.A. 168.724. Ordinary (non-absentee) ballots shall not be delivered to any voter except by an election inspector working at the polling place. M.C.L.A. 168.726. Before delivering the ballot to the voter, the election inspector shall record the identification number of the ballot next to the voter’s name in the poll book. M.C.L.A. 168.735. If the voter receives multiple ballots, each ballot shall have the same identification number. M.C.L.A. 168.736. After marking the ballot, the voter shall fold it and give it to an inspector designated to receive marked ballots. M.C.L.A. 168.738; 168.797a. The inspector will tear off the perforated corner of the ballot and deposit it into the ballot box. The inspector shall deposit the ballots into different boxes depending on whether they are voted for federal, state, district or county offices. M.C.L.A. 168.739.

After counting ballots at the precinct, officials will tie the ballots together, place the ballots in ballot bags, and seal the bags. M.C.L.A. 168.805; Election News #7, page 2. The bags shall then be placed in ballot containers with metal seals. M.C.L.A. 168.735; Election News #35, page 5. “Programs” (memory cartridges) that were used in optical scan tabulators must also be sealed in these containers (page 5). Officials will record in the poll book the identification number for each seal and sign the poll book after doing so. Then the ballot containers will be delivered to the municipal clerk. M.C.L.A. 168.805. They will stay at the office of the municipal clerk unless requisitioned for a county or state canvass or recount. M.C.L.A. 168.823; 168.883; 168.888; Election News #35, page 5. At the completion of any county or state canvass, the containers will be returned to the municipal clerk. M.C.L.A. 168.823; 168.888. Ten days after certification, the secretary of state may “authorize the release” of all ballots unless a recount petition has been filed or a court has ordered the ballots to be preserved. M.C.L.A. 168.847.

Precinct officials shall return unused and spoiled ballots to the clerk and take a receipt that is filed with the chairman of the Board of Election Inspectors. M.C.L.A. 168.741.

Chain of custody of absentee ballots:

Absentee ballots are kept at the office of the county or municipal clerk. M.C.L.A. 168.715. The clerk shall not open the ballot packages except to fulfill a voter’s request for absentee ballots. Before delivering an absentee ballot to a voter, the clerk shall record the name of the voter and the identification number of the ballot delivered. M.C.L.A. 168.735. The clerk shall make public records of the number of absentee ballots distributed and cast. M.C.L.A. 168.765.

When returned, the clerk shall not open the absentee ballot envelopes but “shall safely keep [the ballots] in his or her office until Election Day.” M.C.L.A. 168.765. On Election Day, the clerk shall deliver the marked absentee ballots to the polls together with the absentee voter applications and lists of absentee voters. Inspectors shall remove the ballot from the envelope, enter the voter’s name in the poll book, and enter the identification number of the ballot. M.C.L.A. 168.735. Election inspectors will verify the signature on the ballot against that on file and determine whether the ballot is legal (illegal ballots will be returned to the clerk). M.C.L.A. 168.766; 168.767; 168.791. Inspectors shall open legal ballots, remove the ballot stub, and deposit the ballot into the ballot box (elsewhere the code instructs inspectors to lock absentee ballots in the housing of the voting machine itself). M.C.L.A. 168.768; 168.791. They shall also record in the poll list that the voter has voted.

The Michigan Administrative Code also includes special chain of custody rules for jurisdictions using electronic voting machines that have elected to use remote absentee ballot counting boards (ABCB’s)(see question 20 for more information about ABCB’s). MI ADC 168.786-168.791.

Chain of custody rules for vote-counting equipment

The municipal clerk shall have “complete control” of voting machines (unless the county clerk owns them, in which case the county clerk shall control them). M.C.L.A. 168.778. The clerk shall arrange the machines at the polling place and test and lock the machines; the local election commissioners shall double-check the clerk’s work. M.C.L.A. 168.778. The commissioners will prepare and file a document stating whether the machines were properly prepared, the number of machines present, whether all the counters were set at zero, and the identification number of the metal seal locking each machine. M.C.L.A. 168.778; MI ADC R. 168.775. The machines shall “at all times be under the supervision of an officer….” Id. The machine must be in plain view and at least three feet from all walls or partitions. M.C.L.A. 168.785. Between twenty-four hours before and one-half hour before the election, the clerk shall deliver the keys to the machines to election inspectors in the appropriate envelope. M.C.L.A. 168.781. Before unlocking the machine, two or more officers shall examine the identification number on the machine seal and the number on the counters to make sure they are identical to the numbers printed on the envelope containing the keys. Id.; Election News #35. If the information does not match, officials must notify the clerk who must fix the problem and certify it has been fixed before officials unlock the machine. The machine will then be unlocked, but must be re-locked whenever a voter has voted and no other voter has yet entered the kiosk to vote. M.C.L.A. 168.788. The elections inspectors will periodically examine the machine to ensure no one has tampered with it. M.C.L.A. 168.790.

When the polls close, inspectors will seal the machine and display the counters. M.C.L.A. 168.791. An inspector shall under the scrutiny of others read off the results of the election, which shall be entered into the statement of returns. Then another inspector will read off the returns again, to ensure they match those read off by the first inspector. Two copies of the statement of returns will be made simultaneously. Any person lawfully present in the polling place shall be given “ample opportunity” to compare the returns with the counters on the machine, after which opportunity the machine will be closed and locked. Id.; Election News #35. Any absentee ballots will be placed in the machine before it is locked. M.C.L.A. 168.791.

At the conclusion of the election, precinct officials shall return the keys to the municipal clerk. M.C.L.A. 168.776. The keys are returned in an envelope that lists the identification number of the machine used, the precinct, and the identification number of any seals present on the machine both before and after the election. The machines shall not be unlocked or unsealed until all recounts and other post-election disputes have passed, unless the machines are needed to conduct another election. M.C.L.A. 168.791.

Chain of custody in context of recount

In a recount, the Board of Canvassers may subpoena ballots, machines and other election materials to examine them. M.C.L.A. 168.870; 168.888. Until that time, the state police shall keep the materials safe at the municipal clerk’s office and the municipal clerk shall hold the keys to any voting machines. MI ADC R. 168.902; 168.903. At the conclusion of the recount, the Board shall return the ballots to their containers, seal the containers, and return them to the municipal clerk. M.C.L.A. 168.875; MI ADC R. 168.929.

Remedies

Violation of many of the rules described above may have no remedy because courts are likely to interpret them as “directive” only—rules used to guide officials, but that cannot be used to attempt to change the result of an election after the fact. There are no cases attempting to obtain a remedy for violation of these rules, so it is impossible to say for sure.

However, fraudulent or illegal voting or tampering with the ballots or ballot boxes—as opposed to mere good faith failure to follow the correct procedures– gives rise to a cause of action in quo warranto, where a party who benefited from wrongdoing may be removed and the rightful candidate installed into office (see question 19). M.C.L.A. 168.861.

Effect on recount

If the chain of custody rules are not followed properly, it may render ballots “unrecountable.” For instance, where ballot bags and boxes are not properly sealed after the precinct canvass, or where the identification numbers of the seals are not properly recorded in the poll book, the Supreme Court of Michigan has held the ballots are not recountable. M.C.L.A. 168.871(c); Ryan v. Montgomery, 240 N.W.2d 236, 238 (1976); see also Poole v. Board of Canvassers of Wayne County, 276 N.W.2d 587 (Mich.App., 1979); M.C.L.A. 168.871, MI ADC R 168.793 and 168.907-168-925a for “recountability” rules generally and with regard to voting machines, specifically.

38. Are losing candidates and their supporters permitted to contest the results of an election on the ground that ineligible ballots were included in certified total, even if it is unknown for which candidate those ineligible ballots were cast?

Yes, but a court might find that this is only possible where the ballots of the allegedly unqualified voters were challenged at the time of voting.

As part of an election contest, a party may ask a court to disqualify voters and their votes by submitting a petition stating the petitioner has good reason to believe certain voters who voted in the contested election were not qualified, that this can be established by competent testimony, and that the ballots of these voters “were received after being challenged.” M.C.L.A. 168.748. The court may conduct a hearing on the qualifications of the voters and make a conclusive judgment as to whether they were entitled to vote.

Due to the language quoted above, a court might strictly interpret the rules to prohibit inquiry into the qualifications of voters of non-challenged ballots. However, no court has yet considered the issue.

Besides this matter of statutory interpretation, the court might also dismiss such a proceeding due to certain difficulties in determining how disputed voters cast their ballots. Specifically, voters cannot be asked how they voted, except where it is first shown that they voted fraudulently. Korn v. Southfield City Clerk, 2004 WL 1672341 at 2 (Mich.App., 2004), citing Belcher v. Mayor of City of Ann Arbor, 262 N.W.2d 1 at 1 (Supreme Court of Michigan, 1978). This rule even protects the secrecy of voters who voted in the wrong jurisdiction in good faith if they did so in good faith. Given these protections, it is not inconceivable that a court might dismiss a “qualifications” challenge upon a determination that the issue is not susceptible of proof.

However, in the case of ballots that were challenged at the time of voting, special rules apply that make it easier for a court to determine how they were cast. Challenged ballots are marked with special numbers matching them to identical numbers placed next to voters’ names in the poll books. M.C.L.A. 168.745; 168.746. Officials conceal the special numbers after making them, but in an election contest the presiding judge may remove the concealing device to determine how the disqualification of a voter might affect the result of the election. M.C.L.A. 168.749. However, the judge may only do this where the individual consents in writing, where the individual is “convicted of falsely swearing in such ballot,” or where the court has already determined the individual was unqualified. M.C.L.A. 168.747.

For information about how voters are challenged, see question 17.

Regular ballots also feature identification numbers matching them to voters’ names in the poll book, giving judges the ability to determine what votes should be disqualified. M.C.L.A. 168.735. However, M.C.L.A. 168.745, 168.746 and 168.747 do not state that a judge may use these features to identify disqualified voters with their ballots, potentially prohibiting such use.

39. How close must the result of a statewide election be in order for an automatic recount to occur?

An automatic recount will occur where a statewide election is determined by a margin of 2,000 or fewer votes. M.C.L.A. 168.880a. No provision could be found addressing automatic recounts for non-statewide offices.

Automatic recounts are conducted following different procedures than ordinary recounts. Id. These procedures are determined by the Board of State Canvassers on what is apparently a case-by-case basis.

40. (A) In what circumstances are losing candidates or their supporters entitled to request a (non-automatic) recount?

A candidate for office who believes he or she is aggrieved on account of fraud or mistake may petition for a recount in any precinct or precincts. MCLA 168.862; 168.879; Manual for Boards of County Canvassers, p. 27. A registered elector who believes there has been fraud or error on a ballot question may petition for a recount. M.C.L.A. 168.863; 168.880; Manual for Boards of County Canvassers, p. 27.

40. (B) How is that done? What is the deadline for doing so?

The rules differ depending on the office or issue at stake. However, there are some commonalities present in all situations. For the Secretary of State’s overview of recounts, see Manual for Boards of County Canvassers, pp. 27-28.

In general, those desiring a recount must file a notarized petition alleging “as near as may be [alleged]” fraud or mistake in the canvass of votes. M.C.L.A. 168.865; 168.879; Election News #35; Manual for Boards of County Canvassers, pp. 27-28. At least where the petitioner has no knowledge of specific mistakes or misconduct, a general allegation of fraud will suffice. Kennedy v. Board of State Canvassers, 339 N.W.2d 477, 479 (Mich.App. 1983). The petitioner must specify the precincts to be recounted and submit $10.00 per precinct with the petition. M.C.L.A. 168.865; 168.867; 168.879; 168.881; Election News #35; Manual for Boards of County Canvassers, pp. 27-28.

Those opposing the recount may file objections to the recount to attempt to prevent it from happening. M.C.L.A. 168.868; 168.882. The deadline for doing so is 4 p.m. on the seventh day after the original recount petition was filed. Officials will schedule a hearing on the objection and issue a ruling within five days.

The rest of the rules differ as follows.

Recounts in elections for president or vice-president of the United States, statewide offices, U.S. Senate, U.S. Representative, Michigan state legislative seats in jurisdictions that cross county lines, Michigan circuit judges, statewide ballot issues, and certain other elections specified in M.C.L.A. 168.879 and 168.841

Those desiring a recount in the above elections must file a petition for recount with the Secretary of State. M.C.L.A. 168.841; 168.879; 168.880; Election News #35. The chairperson of a state political party may also file such a petition provided that the margin of victory falls under a certain number of votes for certain offices. M.C.L.A. 168.879. The state Board of Canvassers, not the local Board of Canvassers, is responsible for recounts under these provisions.

The petition must be filed within forty-eight hours of when the canvass of votes is completed. M.C.L.A. 168.879. The Secretary of State has interpreted this to mean within forty-eight hours of when the results of the election are certified. Election News #35. Officials must notify opponents of the petition within forty-eight hours, and the opponents may counter-petition to add additional precincts to the recount at any time before 4 p.m. on the seventh day after the original recount petition was filed. M.C.L.A. 168.882.

The procedures used to physically recount the ballots should be the same as procedures used for other offices and local ballot issues, insofar as is possible (see “Recount procedures,” below). M.C.L.A. 168.891.

Recounts for other offices and non-statewide ballot issues

Candidates for other offices must submit a recount petition to the county clerk within six days of when the “the original canvass has been completed by the… board of canvassers.” M.C.L.A. 168.866; Election News #35, page 10. The Michigan Secretary of State has interpreted this to mean that the petition must be filed within six days of when the Board of County Canvassers actually certifies the results of the canvass. Election News #35, page 10. The county Board of Canvassers, not the state Board of Canvassers, will conduct recounts for these types of offices and issues.

Officials must notify opponents of the petitioner within twenty-four hours, and the opponents may “counter petition” for a recount of additional precincts within forty-eight hours of the filing of the original petition. M.C.L.A. 168.868; Election News #35. Under certain circumstances, county and local recounts may not be conducted until the State Bureau of Elections gives clearance. Id; Manual for Boards of County Canvassers, pp. 27-28.

Recount procedures

Officials will recount ballots in all the requested precincts, with two exceptions. M.C.L.A. 168.874. First, ballots from a given precinct will not be recounted if the number of ballots cast in that precinct does not match up with the number of ballots issued to that precinct on Election Day as shown on the poll list. M.C.L.A. 168.874; Election News #7. Second, ballots in a given precinct will not be counted where certain chain of custody rules in that precinct were not followed (see question 37). Id.

The procedures used for the physical recount differ depending on whether the jurisdiction uses voting machines or paper ballots. The Michigan Secretary of State requires that all jurisdictions use optical scan machines, but that does not rule out the possibility that regular paper ballots might be used in emergency or provisional voting situations. Where paper ballots are used, the recount procedure consists of officials placing the ballots face up on a table and reading aloud the votes for each candidate or issue. M.C.L.A. 168.874; MI ADC R. 168.922. Two tally clerks record the votes called out in this way. Additional procedures for paper ballot elections may be found in MI ADC R. 168.917 et seq.

Where electronic voting machines are used, the recount may occur using special software or the software used to perform the original count. M.C.L.A. 168.874. Additional recount procedures for voting machines may be found in MI ADC R. 168.907 et seq.

Candidates, supporters of ballot questions and their counsel may observe the recounting process and may object. M.C.L.A. 168.874; MI ADC R. 168.912, 168.925. Whenever they do object, the Board will identify the disputed ballots with exhibit numbers before they are counted or rejected. The county Board of Canvassers shall decide such challenges after a hearing. MI ADC R. 168.914; 168.925. The decision may be appealed to representatives of the state Board of Canvassers, and then to the full state Board itself.

Members of the public may observe recounts, but may not come within the “actual working area” where the recount is conducted. M.C.L.A. 168.889; MI ADC R. 168.927.

Additional information about how votes are physically recounted may be found in Election News #35.

Consequences of recount

The result obtained in the recount shall be the official result of the election, regardless of the count obtained in the original canvass. M.C.L.A. 168.876; 168.892; MI ADC R. 168.925b. However, there are two exceptions. First, there is an exception if the petition for the recount is withdrawn before the recount is completed, in which case the original count will stand. M.C.L.A. 168.876; 168.893; MI ADC R. 168.925b. Second, recounts do not determine candidates for U.S. Congress, city counsel, or state legislature, as these bodies determine their own members. M.C.L.A. Const. Art. 4, s 16; City of Grand Rapids v. Harper, 32 Mich.App. 324, 327 (Mich. App., 1971), citing Belknap v. Board of Canvassers of Ionia County, 54 N.W. 376 (Supreme Court of Michigan, 1893). However, recounts for these offices will be conducted upon proper petition and the results forwarded to the appropriate bodies to assist them in determining their memberships. M.C.L.A. 168.879.

Presidential primary elections and elections to U.S. Senate

The above rules do not apply to presidential primary elections. M.C.L.A. 168.879a.

40. (C) When should the recount be completed?

Michigan law does not provide a recount deadline for many types of offices, but does provide a deadline for some local offices.

Deadline for recounts in elections for president or vice-president of the United States, U.S. Senate, U.S. Representative, Michigan state legislative seats in jurisdictions that cross county lines, Michigan circuit judges, statewide ballot issues, and certain other elections specified in M.C.L.A. 168.879 and 168.841

No provision could be found stating a deadline for recounts for these types of offices and issues.

For other offices

In a primary election for other offices, any recount shall be completed not later than the twentieth day “following the last day for filing counter petitions or the first day that recounts may lawfully begin.” M.C.L.A. 168.875; Gracey v. Grosse Pointe Farms Clerk, 452 N.W.2d 471, 477 (Mich. App., 1989). In any other election, recounts shall be completed not later than the thirtieth day after this day.

40. (D) Who pays for the recount?

The petitioner shall deposit $10.00 per precinct to be recounted. MCLA 168.867; 168.881. The petitioner’s money will be refunded if the recount successfully changes the result of the election.

41. In the event of a recount of votes cast on a DRE machine, is the record to be recounted electronic or paper?

Michigan does not use DRE machines. It uses optical scan machines. See this chart prepared by electionline.org and Secretary of State’s press release.

42. Who are the state officials who conduct recounts?

The answer depends on the type of office or question at issue.

Recounts in elections for president or vice-president of the United States, U.S. Senate, U.S. Representative, Michigan state legislative seats in jurisdictions that cross county lines, Michigan circuit judges, statewide ballot issues, and certain other elections specified in M.C.L.A. 168.879 and 168.841

The state Board of Canvassers, not the local Board, is responsible for recounts concerning the above offices. M.C.L.A. 168.890; Election News #39, p. 2. However, the state Board need not personally oversee every recount, but may designate a single member of the state Board, “a state officer, state employee or member of the board of county canvassers” to oversee the recount in each affected precinct. Id.

The state Board consists of four members appointed by the governor with the advice and consent of the state Senate. M.C.L.A. 168.22. The membership shall be split evenly between “each major political party….” Id. Nominees are submitted by the central committees of each major political party. M.C.L.A. 168.22a.

Recounts in other elections

Recounts in other elections are conducted by the county Boards of Canvassers. M.C.L.A. 168.862; Election News #39, p. 2. These Boards each consist of four appointed members, no more than two of which can be from the same political party. M.C.L.A. 168.24a; 168.24c; Manual for Boards of County Canvassers, p. 4.

43. In an election contest lawsuit, what is the contestant’s burden of proof?

The contestant must only present enough evidence to allow the fact-finder to conclude the complained irregularities changed the result of the election.

It is not necessary to show that but for the alleged fraud or mistake the outcome would have been different; it is sufficient to show “that a serious error or fraud occurred and that it may have affected the outcome of the election.” Smith v. Scio Tp., 433 N.W.2d 855, 859 (Mich.App., 1988), citing St. Joseph Twp. V. City of St. Joseph, 127 N.W.2d 858 (Supreme Court of Michigan, 1964). In St. Joseph Twp., the court stated that the contestant’s “proofs must be sufficient to support a fact finding that enough votes were tainted by the alleged fraud to affect the outcome.” St. Joseph Twp. at 6.

44. In an election contest lawsuit, will the court permit discovery, including depositions?

The court may permit requests for production, and probably depositions.

Parties may cause ballot boxes, ballots and poll books to be produced in court. M.C.L.A. 168.747. However, the ballots may not be examined unless the voters consent, the voters are convicted of “falsely swearing” on the ballots, or it is established that they were not qualified to vote.

No law addressing whether the court may permit depositions could be found. However, except where otherwise noted, election contest proceedings follow the same procedural rules found in ordinary civil trials. M.C.R. 3.301. Because there is no specific rule prohibiting depositions in election contests, this tends to indicate depositions are allowed.

At trial, voters cannot be asked how they voted, except where it is first shown that the voter voted fraudulently. Korn v. Southfield City Clerk, 2004 WL 1672341 at 2 (Mich.App., 2004), citing Belcher v. Mayor of City of Ann Arbor, 262 N.W.2d 1 at 1 (Supreme Court of Michigan, 1978). This rule even protects the secrecy of voters who voted in the wrong jurisdiction, provided they did so in good faith.

45. In an election contest lawsuit, how much evidence of wrongdoing must a contestant have to survive a motion to dismiss?

Naturally, the answer to this question depends on the basis for the motion to dismiss. Generally, cases may be dismissed for insufficient service, lack of jurisdiction, res judicata, et cetera. M.C.R. 2.116. Only limited case law exists addressing what is necessary in an election contest lawsuit to survive a motion to dismiss.

Motion to dismiss when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law

An election contest may be dismissed when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. M.C.R. 2.116; Lantz v. Southfield City Clerk, 328 N.W.2d 583 (Mich.App., 2001). No court has explicitly stated what is necessary to survive such a motion to dismiss in an election contest lawsuit. However, it is evident from the Lantz opinion that at least the following items must be present. First, to survive such a motion to dismiss, the plaintiff in an election contest lawsuit must allege that some kind of irregularity occurred in the election. Second, the alleged irregularity must have been sufficient to call the result of the election into doubt. Finally, beyond mere allegations, at least some evidence must exist to support the conclusion that the complained irregularities affected the result.

In Lantz, the court dismissed a candidate’s election contest when the candidate failed to allege the complained irregularity affected the outcome of the election. The candidate alleged that the city clerk in violation of M.C.L.A. 168.765 had failed to timely “call for and receive” absentee ballots from the post office so that they could be counted before the relevant deadline. Id. at 584. However, the candidate did not allege that the post office actually possessed any absentee ballots that could have changed the result of the election and, indeed, did not argue with evidence presented that there were no ballots at the post office. Id. The court dismissed the candidate’s claim because, although the candidate alleged an irregularity (the clerk failed to call the post office to obtain any absentee ballots), the irregularity could not have affected the result of the election since there were no ballots to obtain. Id. at 587.

The Lantz court also implied that more than just bare factual allegations of irregularities affecting the result must be present; a party faced with the type of motion to dismiss present in Lantz cannot “’rest upon the mere allegations or denials in the pleadings.’” Id. at 586, citing Michigan State AFL-CIO v. Civil Service Comm., 478 N.W.2d 722 (1991). Rather, the party opposing the motion must “demonstrate a genuine factual dispute justifying a trial.” Id.

Motion to dismiss for failure to state a claim

While no election contest case could be found addressing the standard of review for a motion to dismiss for failure to state a claim, generally a nonmoving party faced with such a motion needs no evidence to survive it, only allegations. The allegations contained in the non-moving party’s pleadings are assumed to be true and construed in that party’s favor. Hoffman-Laroche, Inc., v. Department of Treasury, 2005 WL 544165 at 1 (Mich.App., 2005). Dismissal is appropriate only where the claim when viewed in this light is “so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery….” Id. This is a very difficult standard to meet.

46. In an election contest lawsuit, what specific deadlines and timetable does state law provide for a trial?

The question depends on whether the election at stake is for a ballot question or candidate.

Generally, the same rules apply to election contest proceedings as apply to other types of civil proceedings. M.C.R. 3.301. This means that a court may expedite election contest proceedings at its discretion. M.C.R. 2.501. Nevertheless, trial may not be held until twenty-eight days after notice of the trial date is given, except where the court directs otherwise for good cause. Id.

Election contest on a ballot question

An election contest on a ballot issue must be filed in the circuit court within thirty days of the election. M.C.L.A. 600.4545. The thirty-day countdown begins when election results are certified. Wills v. Iron County Bd. of Canvassers, 455 N.W.2d 405, 408 (Mich.App., 1990).

Election contest for an office

There is no exact deadline by which those contesting a candidate election must file their claims. Gallagher v. Keefe, 591 N.W.2d 297 (Mich.App., 1998). Rather, the question is whether the plaintiff filed the action “within a reasonable time, taking into account the excuse for delay, the probable harm to the defendant, and the detriment to the public.” Id. at 300, citing Stokes v. Clerk of Monroe Co. Bd. of Canvassers, 184 N.W.2d 746 (1970).

47. Are the judges in the state themselves elected or appointed?

Michigan judges are elected.

Michigan trial court judges (known as circuit court, district court, or municipal court judges) are elected. M.C.L.A. 168.416; 168.467f; 168.426a. Appellate judges are elected as well. M.C.L.A. 168.409e. Finally, Michigan Supreme Court justices are elected. M.C.L.A. 168.396.

Other

48. What specific problems arose in connection with the voting process in this state during 2004? What remedies, if any, did the state adopt in response to those problems?

Michigan experienced confusion over how to count provisional ballots and other problems.

Confusion over whether to count provisional ballots cast in wrong precinct

The largest problem dealt with tabulation of provisional ballots. In Bay County Democratic Party v. Land, 374 F. Supp 2d 404, voters’ rights groups claimed that election officials violated the Help America Vote Act (HAVA) and Michigan law by instructing poll workers to count only those provisional ballots cast in the correct precinct. HAVA and the NVRA require officials to count all provisional ballots cast by voters qualified and registered “in the jurisdiction,” they argued; therefore, because for purposes of HAVA, the NVRA and Michigan election law a jurisdiction is not a precinct but the larger municipality in which that precinct is found, officials must count all provisional ballots cast in the correct municipality regardless of whether they were cast in the correct precinct. Id. at 428. Based on a lengthy review of the statutes, the trial court agreed and enjoined election officials from discounting ballots cast in the wrong precinct provided they were cast in the correct “jurisdiction.” Id. at 430, 438-439.

There is no indication that election officials have done anything to see that poll workers act consistently with this ruling in the 2006 elections. In fact, the Secretary of State has once again instructed workers to discount ballots cast in the wrong precinct. Procedure for Handling “Envelope” Ballots Returned to Clerk’s Office, page 3.

Other problems

Voters attempting to vote in some majority minority precincts alleged that Republican poll challengers harassed them, and, in turn, the Michigan Republican Party sued the City of Detroit alleging officials were preventing them from doing their jobs. “Ballot Watch: Eyes on the Election,” ABC News, November 3, 2004. The suit also requested that workers from MoveOn.org be ordered to stop campaigning in Detroit polling places.

There were also allegations that voters were given misinformation about where to mail their absentee ballots. The New York Times reported that voters in the Ann Arbor area received calls telling them to mail the ballots to the wrong addresses. K. Zernike and W. Yardley, “Charges of Dirty Tricks, Fraud and Voter Suppression Already Flying in Several States,” New York Times, November 1, 2004, A16. The Secretary of State had to put out a statement with the correct address.

49. What pending litigation exists in the state concerning the voting process?

The only major election administration case pending as of October 31, 2006, is In Re Request for Advisory Opinion Regarding the Constitutionality of 2005 PA 71. In this case, the Michigan House of Representatives has asked, and the Michigan Supreme Court has agreed to answer, the question of whether new photo identification requirements of M.C.L.A. 168.523 effective in 2007 violate the Michigan or United States constitutions. In 1997, the Michigan attorney general advised that similar requirements in the current form of the law violated the Michigan constitution. Currently, the requirements of that law still stand but are not enforced (see here).

50. What voting machines are used in this particular state? What security measures are in place to prevent tampering with the voting machines? Insofar as DRE machines are used, is there a requirement that they produce a voter-verifiable paper trail?

The Secretary of State prescribes a uniform voting system for the entire state. M.C.L.A. 168.37. The Secretary of State has determined that all precincts will use optical scan voting machines (see here). Because of this, VVPAT is not an issue. The Secretary has produced this tool to show the specific model of voting machine used in each precinct.

For procedures to prevent tampering, see “Chain of custody rules for vote-counting equipment,” under question 37.