Senate Bill 367 came up for vote on June 28 after the identical bill passed the House. "The rule-making process is now at the whim of the Secretary of State,” said a frustrated Senator Ruth Johnson. Note: This image shows Minority Leader Aric Nesbitt as voting Yes. He inadvertently voted in favor and then realized his mistake and corrected his vote to No. SB 367 passed 22 to 15. .
July 1, 2023
by Elizabeth Ayoub and Patrice Johnson
Michigan Democrats are leveraging a recent constitutional amendment as a pretext for passing legislation that undermines the state's election security. Following an influx of out-of-state money during last November's election, voters in the Great Lakes State approved Proposal 2, a citizen-initiated amendment to alter the Constitution's voting policies. They also made Michigan a trifecta state with Democrats taking majority control of the legislative, executive, and judicial branches of government. Over the past few weeks, the legislature’s new leadership has used deceptive and unorthodox practices to deny public dissent and push egregious legislation into immediate effect.
“Voter integrity is on the chopping block. Our transparency and checks and balances for honest and fair elections in Michigan are systematically being taken away,” said the normally diplomatic state Senator Ruth Johnson (R).
The former chair of the Senate Elections and Ethics Committee served two terms overseeing elections as Michigan Secretary of State.
Egregious legislation
Proposal 2 established a plethora of drop boxes, required photo identification or a signed legal document, authorized nine days of early voting, and provided for absentee voting for every election. However, significant portions of the recently adopted bills go beyond Proposal 2 and will harm the integrity of Michigan elections.
“They are add-ons that I believe most people would not vote for,” Senator Johnson said.
As an example, when voters approved Proposal 2, they were led to believe it would extend early voting to nine days. However, Senate Bill 367 and its identical House version HB 4695 both allow for up to 29 days of early voting.
(5) Additional days of early voting as described in this subsection must take place on or after the twenty-ninth day before an election. (SB367 sections 720d(5), 720f(8)) and 720g(9))
SB367 also strips out language from a time-honored law requiring the secretary of state to have pre-approval from the House and Senate’s Joint Committee on Administrative Rules (JCAR) before changing the rules for administering elections. This deleted language, among pages of deletions from SB367, eliminates from current law is this language:
(9) Not later than March 1, 2021, and not later than March 1 every 2 years thereafter, the secretary of state shall provide a written report to the house and senate committees dealing with elections…
--SB367(Sec. 765(9))
The bill eliminates requirements for the Secretary of State to hold public hearings or provide public notice on new policies.
Beginning January 1, 2023, after receiving the written notice from a city or township clerk under this subsection, but not later than 7 business days after receiving the notice, the secretary of state shall make the notice publicly available by posting the notice on the department of state website.
—SB367 (Sec. 765(6))
Further, SB 367 allows for ‘print on demand’ ballots. No mention of any of these changes was made in Prop 2. Regardless, the House passed HB 4695 and then the Senate brought SB 367 to the floor for a vote on June 28.
Senator Ruth Johnson delivered an impassioned plea for her peers to vote the legislation down.
“Early voting is one of the biggest changes in elections in Michigan that we’ve seen probably in at least 50 years,” she argued. “These bills strip out important protections that are usually there for developing early voting procedures.”
A roll call vote was taken, and SB 367 passed. Now, the bill is headed to the governor’s desk where Gretchen Whitmer (D) is expected to sign it into law.
“The rule-making process is now at the whim of the Secretary of State,” Sen. Johnson said during an interview for this article.
“No more public notice. No more input from legislators through JCAR. All new rules can be done immediately without the public’s knowledge.”
“I think our current secretary of state has a history of doing things that weaken election integrity,” Sen. Johnson told Michael Patrick Shiels in a June 21 radio interview. She said the secretary has a “history of trying to get-around this process.” A court ruling supports the senator’s claim as Secretary Jocelyn Benson was found in violation of the Administrative Procedures Act in 2021.
A bright spot
House Bill 4210, which seeks to allow overseas voters to vote by email, was pulled from the Senate agenda due to bipartisan lack of support. But slowing the bill’s march toward enactment into law required Herculean efforts.
Citizen groups including Pure Integrity Michigan Elections (PIME), Michigan Fair Elections (MFE), Stand Up Michigan, and the Association of Mature American Citizens (AMAC) rallied supporters to contact legislators. World-renown Alex Halderman, Ph.D. testified before the House Elections Committee on May 9 that electronic voting cannot be made secure. Despite public and expert opposition, the committee approved HB 4210 and sent it to the House floor for a vote.
Thankfully, HB 4210 drew bipartisan opposition and was withdrawn from consideration.
“It could still come for a vote,” Freshman Representative Rachelle Smit warned.
Representatives Smit and Jay DeBoyer serve as the two Republicans on the House’s eight-member Elections Committee. Because Democrats are in the majority, they chair all the committees, and the 6-2 ratio renders the conservative minority all but powerless.
Smit and DeBoyer, frame their concerns through the lens of their combined 21 years’ clerk experience.
“As a clerk, I wasn’t biased,” DeBoyer explained. “My job was to run a fair, accurate, and secure election. I’m not coming at this issue on a partisan basis. I’m coming at it as an American. Why would anyone want to loosen election security?”
Other legislative overreach beyond Proposal 2
The table beow compares what was approved in Proposal 2 to what legislators actually passed.
Rushed proceedings and unorthodox legislative actions
Over the course of one week, Democrat senators and house members introduced eight pairs of elections’ bills. Last-minute substitute versions replaced five of the eight bills under consideration, further muddying transparency.
Republican Representatives Smit and DeBoyer received substitute bills just 75 minutes before their committee meeting, leaving them insufficient time to review and analyze the proposed changes before the majority members of the committee voted to approve the substitutes.
DeBoyer said he received substitutes for HB 4755 and HB 4756 at the beginning of the committee hearing on June 21. He had no opportunity to review the substitute bills before the committee approved them.
Come to find out, HB4755 removes the felony penalty for disclosing an election result or how a ballot voted. HB4756 limits the number of challengers allowed at polling locations and removes the ability of challengers to observe all of the election processes as outlined in prior-established rules.
Neither bill is related to Proposal 2.
Denial of public comment
Perhaps the most troubling outcome of the rushed procedures is their chilling effect on public comment. The pop-up substitute bills provided zero opportunity for public comment. These rapidly created bills were voted on and moved to the floor of their chambers with scant opportunity for public review. This exclusion of public engagement undermines democratic principles and raises serious concerns about the transparency of the legislative process.
“Handpicked sponsors wrote the bills, and then they testified in favor of them,” Bill Richardson, vice chair of Pure Integrity Michigan Elections (PIME), said.,
“We provided written statements and our volunteers registered to speak at the hearings. We were told, ‘Sorry, we’ve run out of time.’ Sometimes they just didn’t let our people speak at all, even though they were present and filled out the card to speak about bills on the agenda. This is not transparent or responsible governance.”
Richardson also questioned the sense of urgency. “They used the excuse of having to hurry to pass legislation in order to meet a September deadline. They chose to manufacture a crisis instead of dealing with the deadline through a rational process.”
All they needed to do, he said, was call a special session or two and put their summer recess on hold for a week or so. “Give each bill its due consideration. Get this thing done properly.”
Instead, as of Friday, June 30, the House and Senate had gone into recess.
Unorthodox procedures
Typically, bills go to committee for review and approval before heading to the floor of the House or Senate for vote. This week, however, bills appeared on the Senate agenda accompanied by unusual bullet points:
· Amendments/subs[titutions]: None.
· Committee did not recommend.
Of six bills marked Committee did not recommend, four were adopted by both chambers and will soon bear the weight of the governor’s pen.
· HB 4362 and HB 4363 provide for an opt-in option on the individual income tax for individuals to participate in organ donor registry and anatomical gifts when filing taxes. These bills “require Treasury to share donor registrants with the Secretary of State’s office,” and “this information would not be subject to FOIA, and disclosure is further limited to only entities allowed access for the purpose of administering the registry.”
· HB 4364 allows disclosure of certain information related to the donor registry program.
· HB 4202 repeals criminal procedures to criminal sexual conduct charges and removes mental incapacitation of a spouse as an exemption for rape.
As standard practice, the internal Legislative Service Bureau drafts legislation upon legislator request. The speed at which these bills were produced, however, suggests they originated outside the LSB. Spokespersons from outside organizations have publicly thanked committee chairs for inviting them to speak on behalf of the bills. The question arises: Who is behind these bills?
Outside money, ‘spent deceiving people’
Sen. Johnson feels the public was misled into voting for Proposal 2. “I don’t blame voters. Lots of it sounded really good,” she said. “There was a lot of money spent deceiving people.”
“Proponents ran ads that kept saying this ‘enshrines voter ID into our Constitution,’” she said. “But the ads didn’t mention that it also enshrined the ability to use no ID!”
The money trail supports the senator’s assertions. Of $31.7 million spent on the Proposal 2 campaign, 74%, or $23.6 million, was expended in support.
Ballotpedia (https://ballotpedia.org/Michigan_Proposal_2,_Voting_Policies_in_Constitution_Amendment_(2022)
Funding in support of Proposal 2 came primarily from deep pockets outside the state of Michigan.
Of the $23.6 million that Promote the Vote raised in support, about half ($11.26 million) came from the Washington D.C,-based Sixteen Thirty Fund. The New York-based George Soros’ Open Society Foundation accounted for $1.2 million. The Sixteen Thirty Fund is a 501(c)(4) nonprofit organization that describes itself as using “a fiscal sponsorship model to maximize our impact and create lasting change." The Open Society Foundation is a 501(C)3 nonprofit.
Source: Ballotpedia. https://ballotpedia.org/Michigan_Proposal_2,_Voting_Policies_in_Constitution_Amendment_(2022)
To conclude, the rejection of amendments proposed by experienced former clerks like Representatives Jay DeBoyer and Rachelle Smit and the testimony of a world-renowned cybersecurity expert like Alex Halderman, Ph.D., coupled with the absence of clerk experience among Democratic committee members raise thought-provoking and reasonable questions about the legislature's purported commitment to upholding election integrity.
The inconsistency in evaluating and accepting amendments casts doubt on the legislature's willingness to consider diverse perspectives and insights from individuals with direct knowledge of the electoral process. The selective approval of amendments without proper examination suggests a lack of thorough scrutiny and calls into question the fairness and impartiality of the legislative process.
Evidence points to the Michigan legislature using Proposal 2 as an excuse to push through provisions that erode election integrity and advance a wish list of processes that were not part of Proposal 2. Rushed proceedings, shirking of orthodox procedures, denial of public comment, and contradictory treatment of amendments highlight the need for transparency and fairness in the legislative process. Citizens and advocacy groups should closely monitor these developments and advocate for safeguards to protect the democratic processes so essential to preserving the nation as a constitutional republic.
As Rep. DeBoyer said,
The things that are going on with Proposal 2 are stripping out common sense measures that we’ve had in place for decades in Michigan. When 70% of the population is concerned about election security, a person wonders what the motivation is of people who wish to loosen security. You have to wonder if there is willful intent.
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About the authors:
Elizabeth Ayoub, Communications Director for Michigan Fair Elections, started her career working for an international company, transitioned into teaching French and Latin while her children were young, and then became a Michigan attorney. She resides in St. Johns.
Patrice Johnson, chairs MFE and PIME. The former teacher and business executive has founded five successful companies and served as senior executive with a Fortune 100 technology company. Patrice authored the Fall and Rise of Tyler Johnson, the basis of a documentary film that aired nationwide on PBS in 2022.
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