By Patrice Johnson | October 9, 2024 Revised Oct. 9, 2024
Two courts and two judges in Michigan have sided with the Republican National Committee (RNC) leading to legal victories in relation to the handling of mail ballots. One lawsuit may have come too late, however, depending on whether clerks implement the changes in time for this November’s election, less than four weeks away.
During the Aug. 6 primary election, Chesterfield Township Clerk Cindy Berry and volunteers in watchdog organizations found that many ballots were approved and counted despite discrepancies. Some absentee ballots were missing serial numbers or their numbers were mismatched. Other mail ballots lacked verification of voter signatures. These findings raised concerns about the accuracy of the voting process, especially in regard to potential voter fraud.
The RNC filed two lawsuits against Michigan's Secretary of State, Jocelyn Benson, and the judges' gavels came down in favor of the RNC.
First, the Hon. James Robert Redford in the Court of Claims ruled Benson’s instructions to clerks were unlawful because the Secretary failed to require election clerks to verify absentee ballot signatures. Benson changed her guidance, so the judge dismissed the case.
In the second case, Judge Brock Swartzle, also with the Court of Claims, ruled that Benson’s guidance was illegal for failing to ensure clerks checked ballot serial numbers against envelopes, a safeguard meant to prevent voter fraud. However, Judge Swartzle didn’t order immediate enforcement of the ruling due to time constraints ahead of the November election.
“While the court declined to reach a decision on whether ballots must be rejected for nonmatching numbers this close to the November election, the case will continue and the RNC will continue to fight for mail ballot safeguards.”
– Christina Norton, RNC Executive Director of Election Integrity Operations”
When a registrant requests an absentee ballot, the clerk records its serial number in the state’s qualified voter file (QVF) before issuing the ballot to the voter. When the absentee ballot comes back, the clerk is supposed to double check the serial number on the returned envelope and be sure it matches the serial number of the ballot given to the voter. This simple but important step safeguards a voter’s sacred right to vote. It protects voters from having their ballots stolen by ballot harvesters and stops fake ballots from pouring into the ballot stream, canceling legitimate votes.
“Ballot number matching requirements are a simple way to protect the integrity of our elections, and Michiganders deserve that peace of mind,” Pete Hoekstra, MRP Chairman, stated in an RNC release, dated Oct. 7.
Michigan Law is clear:
If the elector’s signature and/or identification match the information on file, the application to receive a ballot should be approved, and the information of the elector should be added to the precinct’s poll list along with the identification number of the ballot the elector has received. (MCL 168.523) [Emphasis added.]
The ballot of a challenged elector shall be marked by the election inspector with the number placed after the elector’s name on the poll list. This number should then be covered by a slip of paper affixed over it to the ballot, so as to obscure this number, which shall only be removed if the challenge is successful, to prevent the counting of the ballot.” (MCL 168.745) and (MCL 168.746) as cited by (MCL 168.727) and paraphrased.
On Sept. 18, 2024, the RNC, MRP, and Clerk Cindy Berry sued defendants, arguing that “Michigan Election Law in toto makes clear that a mismatched absent-voter ballot or an absent-voter ballot with a missing stub must be rejected and the affected voters—the absent voter to whom the ballot was issued and the absent voter to whom the return envelope was issued—must be given an opportunity to cure.”
The court held that Secretary Benson’s guidance must be corrected, and Judge Swartzle noted that ballots with mismatched serial numbers had the potential to link to voter fraud, a point the Secretary of State’s office conceded during the hearing.
The court’s ruling forced Benson to update her guidance. It now requires proper verification of absentee ballot signatures before the ballots will be counted.
Chapter 8 of the election manual and the Election Inspectors’ Procedure Manual (flip chart) have been updated. However, Michigan.gov/Vote reads as follows:
The Plaintiff in that case also sought an order that absent voter ballots with an unexplained mismatch in the ballot stub number be rejected, rather than marked as challenged, for the November 2024 election. The Court denied that relief, and such ballots will continue to be processed as challenged for the November election, as provided in the manual and flip chart.
Translated, this means they will be put through the tabulators and counted.
Election Training Still a Concern
So, clerks are being told not to implement the law and the court's ruling. Despite the SOS's own Bureau of Elections stating in its September 2024 Guidance, “If a voter’s registration has been challenged, that voter shall not be issued a ballot until the challenge has been resolved, in the voter’s favor.” (Guidance from the Michigan Secretary of State, Bureau of Elections, September, 2024 as referenced in Michigan Election Law Summary & FAQs, Oct. 2024.)
A volunteer with the Pure Integrity Michigan Elections (PIME) and who wishes to remain anonymous attended Absentee Vote Counting Board (AVCB) training in Detroit, and she noted that the outdated methods were still being used.
“Ballots with missing stubs were processed,” she warned. “Please alert all poll challengers and election inspectors that ballots cannot be processed without stubs, as they have in the past.” The hard-working, experienced volunteer emphasized the need for immediate action to correct the training and avoid confusion during the upcoming election.
In previous years, challenged ballots in Detroit’s AVCB were tabulated. Poll workers were instructed to mark the serial number on the back of the ballot, cover it with tape, and then feed the ballot through the tabulator, thereby counting it. These challenged ballots have been—and could continue to be—counted and poured into the ballot stream, never to be examined again. The only way to extract these challenged ballots after the fact would be to reference the serial number with the support of a lawsuit, and then find the challenged ballots, pull them out, and examine them for legitimacy.
Failure to follow the law is likely to lead to questions and subsequent lawsuits.
These cases highlight the ongoing battle between the two political parties over election rules. The RNC is pushing for more stringent measures to prevent voter fraud, whereas their opponents continue to loosen rules and claiming election rules make it hard for eligible voters to have their ballots counted.
As the November election approaches, both sides are gearing up for what promises to be another contentious battle over election integrity and mail-in voting.
What you can do:
Please join MFE and PIME in calling for election officials to adjust their procedures and modify their training to comply with the law and court’s ruling. Challenged ballots should not be counted until they are cured and the ballot's authenticity and registrant eligibility are verified.
Urge all who are involved in elections to follow the law.
Read more HERE.
Tally of election integrity lawsuits in which judges have ruled against Secretary of State Jocelyn Benson:
RNC v Benson. Case No. 24-000148-MZ, Court of Claims, Oct. 10, 2024.
Judge Brock Swartzle ruled to ensure mail ballots are cast and counted properly. Requires ballot serial number matching.
RNC v Benson, Case No. 24-000143-MX, Court of Claims, Sep. 27, 2024
Registrant signature on absentee ballot envelope must match signature on file.
RNC v Benson, Case No.24- 000041 Court of Claims. On July 30, 2024, Judge Christopher Yates of the Court of Claims ruled, “The ‘initial presumption”’ of validity in signature verification of absentee-ballot applications and envelopes mandated by the December 2023 guidance manual issued by Defendants is incompatible with the Constitution and laws of the state of Michigan, and (b) the catch line referring to an ‘initial presumption of validity’ in R 168.22 of the Michigan Administrative Code is incompatible with the Constitution and laws fo the state of Michigan.”
Genetski v Benson. Case No. 20-000216-MM;
"The guidance issued by the Secretary of State on October 6, 2020, with respect to signature matching standards was issued in violation of the Administrative Standards Act," per Judge Christopher Murray, Court of Claims, Mar. 9, 2021.
Davis v Benson. Case No. 20-000207-MZ October 27, 2020, Judge Christopher Murray issued an injunction against the SOS's directive to ban the open carry of firearms in polling places.
Carra v Benson. Case No. 20-000211-MZ; Judge Cynthia Stephens issued a preliminary injunction against Benson and Brater’s legally unauthorized poll challenger directives.
Johnson v Benson. Civil Action No. 1:20-cv-948; On October 19, 2020, United States District Judge Paul Maloney ordered Benson to revise her guidance to comply with statute regarding the time and manner of election processes.
O’Halloran v Benson. Case No. 22-000162-MZ. On October 20, 2022, Court of Claims Judge Brock Swartzle ordered Benson to revise her poll challenger guidelines to comply with Michigan Election Law.
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