Election Reform


Analysis of State Senate Republican Election Reform Plan
by Adam de Angeli      Posted March 25, 2021

 
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State Legislation
On March 24, Michigan Senate Republicans introduced a package of 39 bills aimed at reforming Michigan's election law. It is their opening bid.

The Rescue Michigan Coalition announced our Public Draft plan two days earlier. That was our opening bid.

At this stage in the legislative process, all bills are essentially public drafts.

But these may move quickly. The Michigan Republican Party issued a news release on the plan the day it came out.

This suggests a distinct likelihood that this plan is "good to go."

Let us begin by saying, first and foremost, there's a lot of good in this plan. And the good certainly outweighs the bad.

But there is room for improvement, and the best thing that informed advocates for clean elections can do, right now, is to help make a good proposal better.

The most encouraging aspect of these bills is that they seem to be written with intent to become a citizen-initiated law. This is a serious set of major changes, including some that the governor is certain to oppose. Almost all of the bills amend the election law and could be rolled into one.

The best bills in the package include:

•ID requirement for absentee ballots;
•Uniform signature verification policy;
•Prohibiting private funding of public elections;
•Allowing video recording of proceedings.

However, other bills in the proposal are problematic.

Most notably, Senate Bill 300 would create and mandate an "early election day" where polls would be open from 8am to 5pm on the Saturday ten days before election day.

Under the bill, every city or township in Michigan would be required to have at least one polling place where voters could cast their ballots in person, with all of the requirements for poll workers, poll challengers, poll lists, notices, and security as a regular election day.

This would effectively create an "early election day." The cost would be substantial to taxpayers as well as to campaigns.

The bill also appears to anticipate that leaking of early results would be a problem, as the bill creates a felony for disclosing or in any way characterizing "how any ballot was voted on the second Saturday before election day."

Here is a description and our comment on each of the bills, with our comment in italic:

SB 273 Adds additional regulations for absentee ballot drop boxes, including that the secretary of state and county board of canvassers approve them. However, all ballot drop boxes used in the November 2020 election are required to be approved by them. Drop boxes would be required to be kept under video surveillance at all times. Only clerks and staff would be permitted to collect the ballots and would be required to immediately return the ballots to the clerk. A chain of custody log would be required.

It would be simpler to just do away with drop boxes, which are an additional point of failure in the chain of custody. Michigan's absentee period is extremely long, six weeks, and it makes no sense to create a major hazard for a minor convenience for some voters.

SB 274 provides that an individual would be permitted to pre-register to vote at age 16. The pre-registered voter would not appear on the voter file until age 17 1/2 (as they are currently).

It is not clear why there is any need for voters to pre-register more than six months before being eligible to vote.

SB 275 provides that members of the political parties may observe and video-record election audit proceedings. Individuals who disrupt the audit would be subject to removal, but video-recording alone would not constitute a disruption. Additionally, clerks would be permitted to broadcast video coverage "of the custody of all ballots while the ballots are present in the tabulation room of a precinct, absent voter counting board, or combined absent voter counting board."

SB 276 authorizes poll workers, poll challengers, and poll watchers to video-record locations where ballots are tabulated, except to record a voter.

Rescue Michigan included similar video-recording provisions in our proposal and we support them as an important means of documenting the record of events.

SB 277 increases the frequency that clerks forward death records and remove deceased voter from the rolls, from once a month to once every two weeks, and once a week in the 6 weeks before an election.

This is a minor improvement.

SB 278 makes minor updates to conform to SB 273 on chain-of-custody reports for absentee ballot drop boxes.

As mentioned above, it would be simpler to do away with ballot drop boxes entirely.

SB 279 increases the number of poll challengers that may be assigned to an absentee voter counting board, if the number of absentee ballots to be processed by the board is 3,000 ballots or more. Under current law, parties may have 2 challengers. Under the bill, they would get an additional challenger for each additional 3,000 ballots (i.e. 3 challengers for 3,000 ballots or more, 4 challengers for 6,000 ballots or more, etc.)

Additionally, if counting boards continue to work after the polls close on election day, challengers may be replaced with other challengers.

This would close a loophole on limiting poll challengers by combining many precincts under one counting board. Rescue Michigan supports this policy.

SB 280 would require ballot initiatives be filed with the secretary of state 200 days before the election, not 160 under current law, and require the board of state canvassers to certify the petition within 100 days of the filing date.

This is a needed policy to ensure the secretary of state processes petitions in a timely manner, which Jocelyn Benson failed to do with respect to the Unlock Michigan signatures.

SB 281 would require the secretary of state, before March 1 of each year, request information from each multistate program or service that the secretary of state is participating to verify the current residence and registration status of voters, require the secretary of state follow statutory procedures for at least 95% of the voters affected by the information, and require the secretary of state provide a report of compliance to the house and senate election committees, and post on the department's website the number of voters who received a notice, who have moved, who have died, and how many were duplicate registrations.

This is a sensible proposal to require the secretary of state use information available to remove expired voters and provide transparency.

SB 282 would prohibit anyone except the secretary of state, a designated voter registration agency (not a private entity), and local clerks from accessing the qualified voter file (QVF)

This intends to prevent private organizations from accessing the QVF for real-time voter registration. However, clarification may be needed to ensure this does not prohibit voter registration information and vote history from being available under the Freedom of Information Act.

SB 283 makes indefinite a temporary law for the November 2020 election regarding absentee ballot envelope containers (ie for absentee ballots received that haven't yet had signatures compared and been removed from their envelopes). Under current law, only before the November 2020 election may clerks acquire absentee ballot containers and county canvassers shall examine the absentee ballot envelope containers for the November 3, 2020 election and local clerks could purchase. This bill makes the provisions of MCL 168.24k ongoing. It also moves the deadline fore canvassers to examine absentee ballot envelope containers up from October 15 to mid-July.

This would be helpful in ensuring absentee ballot envelope containers are examined.

SB 284 requires the secretary of state to make an reports to the legislature detailing each contract the office has entered with an entity for an election-related activity or service, and prohibits all government entities from receiving contributions from private entities for election-related activity and equipment.

This is similar to Rescue Michigan's language to prohibit private entities from funding public elections and we support it.

SB 285 requires voters submit identification to obtain absentee ballots. They may sign an affidavit instead if they don't have ID, but in those cases voters would be given a provisional ballot, not a regular ballot. (Provisional ballots are not counted on election day and are only counted after review if there are enough of them to affect the result of any given race.)

This is an excellent proposal that was included in Rescue Michigan's plan as well.

SB 286 would prohibit absentee ballot drop boxes from being used after 5pm on election day. The drop boxes would have to all be locked at 5pm on election day to prevent voters from using them.

Again, it would would be simpler to just do away with drop boxes.

SB 287 would prohibit cities and townships from providing prepaid postage on absentee ballot return envelopes, and the secretary of state from funding or reimbursing them for prepaid postage.

This is a reasonable protection of taxpayer money.

SB 288 would require that cities and township appoint election 2 election inspectors, one Democrat and one Republican, for each random audit conducted under current law, allow the 2 parties to designate 2 observers, and require the secretary of state provide live video streaming of the audit.

This is a sensible transparency measure and we support it.

SB 289 would require that all election-related funding from the federal government be approved by a budget act of the legislature.

This is a smart proposal to prevent the federal government being a "work-around" to enable private entities to fund public elections.

SB 290 would prohibit private political organizations from appointing poll challengers, and require poll challengers wear visible identification badges identifying themselves, the party or candidate that appointed them, and the precinct(s) where the challenger is designated to serve.

It may be problematic to prohibit private organizations from designating poll challengers. We understand the intention is to prevent private entities from essentially going around the limitation on the number of poll challengers representing either party, but there may be unintended consequences in limiting the ability of the public to become poll challengers.

SB 291 would remove language in the Code of Criminal Procedure making it a two-year felony for a person to file a poll challenger statement on behalf of an organization that is not authorized to appoint challengers, and for a clerk to knowingly fail to perform the duties required in designating poll challengers.

This is presumably a companion to SB 290.

SB 292 would require the secretary of state to establish a comprehensive training curriculum for the 2 major parties seeking to designate challengers at an election, regarding the powers, rights, and duties of challengers, prohibits private entities from designating election challengers, and require poll challengers to complete the training.

The intention of this bill is consistent with Rescue Michigan's proposal to prohibit financial compensation of poll challengers: it intends to prevent poll challengers from being "hired heavies." However, there may be unintended consequences to this bill as written. It effectively creates licensure of poll challengers, subject to a curriculum created by the secretary of state. This may create an undue burden on poll challengers.

SB 293 appears to be an exact duplicate of SB 291.

SB 294 requires local election boards not appoint more than 2 poll workers from 1 major party for every one from the other. Current law (which this would add to, not replace) requires they "shall appoint an equal number, as nearly as possible" of poll workers from each party. Also, the bill requires that if a local election board is unable to appoint an equal number of poll workers from either party, the clerk must submit a report to the secretary of state detailing all of the efforts made to try.

This is a common-sense enhancement to existing law to protect the adversarial process by ensuring both parties are represented in hiring. However, because Michigan does not have voters register by party, there is an issue of how an individual is determined to be a member of a party that is not addressed in the bill.

SB 295 requires poll worker training include training on "conducting regular balancing checks at least once every hour in each precinct on election day to confirm that the total number of ballots issued at a precinct matches the total number of ballots tabulated by the precinct tabulator at that precinct.

This is not harmful but unlikely to make any difference. Poll workers typically do this anyway, and there is no punishment if they don't.

SB 296 enlarges county boards of canvassers for large counties. Under current law, all Michigan county boards of canvassers consist of 4 members: two chosen by the Republicans, two chosen by the Democrats. SB 296 would require counties with a population of 750,000 or more (Wayne, Oakland Macomb) have 8-member boards and those with a population of 200,000-750,000 (Kent, Genesee, Washtenaw, Ottawa, Ingham, Kalamazoo) have 6-member boards.

This may be helpful to prevent what happened in Wayne County in November 2020, in which county canvassers were bullied into voting to certify the election under duress. However, we prefer our own proposal, which would allow canvassers to rescind certification if made under duress.

SB 297 would require at least 1 Democrat and Republican county canvasser be present during the entire canvassing of returns. The bill requires the board of county canvassers approve the clerk hiring assistants to perform the duties of the board.

This is a common-sense reform we support.

SB 298 extends the county canvassing period from two weeks to three.

This would ease the time pressure of certification and is a welcome improvement.

SB 299 requires boards of election inspectors deliver the sealed envelope of election returns to the clerk "not later than 12 noon on the day following the election."

This is unobjectionable, but whether it would be meaningfully enforced is an open question.

SB 300 creates an "early voting" election day on the second Saturday before election day, from 8am to 5pm. It also strikes language saying the polls shall be open at 7am and open until 8pm on election day "and no longer" -- removing "and no longer."

This is highly problematic. It essentially creates an "early election day," with all of the attendant costs, complexities, and risks. We fail to see any reason this bill is part of an election reform plan.

SB 301 adds sentencing in the Code of Criminal Procedure for tampering with an early voting ballot container and disclosing an election result or characterizing how a ballot was voted before the close of polls on election day. Both would be 5-year felonies.


This appears to be a companion to SB 300, and illustrates that lawmakers are already anticipating the hazards of an "early election day." So why create one in the first place?

SB 302 would require a voter registration application include a statement that the voter does not claim voting residence or the right to vote in another state or territory.

This is a very minor change that is unlikely to have any impact.

SB 303 modifies the voter ID requirement that voters without ID sign an affidavit and instead are simply issued a provisional ballot.

This is a smart improvement to the voter ID requirement. Instead of ballots issued to voters without ID be irrevocably cast, provisional ballots require the voter to subsequently verify his or her registration with the clerk before it is counted.

SB 304 requires the notice provided to voters that do not show ID explain that their provisional ballot will only be tabulated if within 6 days of the election the voter verifies his or her registration record with the clerk.

This is important notice to provide as a companion to SB 303.

SB 305 prohibits public election communications from featuring public officials' names and likenesses. So, for example, lawmakers couldn't include voter registration information on their mailings.

This is a funny one. The intention is obviously to prevent politicians from using public funds to essentially promote themselves in election-related "informational" communications. However, the bill is written so broadly that it would likely prohibit lawmakers from even replying to a constituent who requests instructions on how to register to vote.

SB 306 would require the secretary of state make a report to the legislature and a public web page to shame all local clerks that are not current on their training requirements.

This is an unusual way to enforce a policy, but it is enforcement.

SB 307 would require that the full text of a ballot proposal is provided to every voter.

This would improve voter understanding of ballot proposals, which are often more complex than the 100-word summaries that usually appear.

SB 308 would require the secretary of state establish a uniform signature verification policy and that it cannot include a presumption regarding the validity of any signature that is to be verified, and to require signature verification training for all clerks and poll workers.

This is an important provision similar to that in the Rescue Michigan plan and we fully support it.

SB 309 would codify various rights of poll challengers, including the right to stand or sit behind the processing table at a polling place, the right to perform their duties (overruling "social distancing" requirements), the right to view results tapes, the right to demand and be provided a written explanation from the board of election inspectors if expelled from a polling place or counting board, and the right to use a cell phone or computer as long as it does not hinder or impede a voter's right to vote.

This bill spells out what is already law to prevent abuses and we support this clarification.

SB 310 would prohibit the secretary of state from sending absentee voter applications unless requested by the voter, and this would include providing a link to an absentee voter application on the department of state website.

This would prevent taxpayer dollars from being spent on bulk mailing of unrequested absentee ballot applications and we support it.

SB 311 would allow for electronic submission of ballots from members of the uniformed services that are outside of the U.S.

We fully support the right of members of the uniformed services to vote, but creating a process for electronic submission of ballots for any individual may open the door for electronic submission of all ballots in the future.

Voters expect paper ballots because they are a common-sense way to protect against electronic ballot fraud. Overseas members of the military and other uniformed services are entitled to that same protection. We do not support this bill.



Conclusion

As an opening proposal, the Senate has clearly put some time and consideration into improving Michigan's election law. While some of these bills are problematic, we expect we will be able to resolve these issues, and many of the bills implement important protections that are worth supporting.

There are some measures that Rescue Michigan has proposed which are not included in these bills, such as security features for ballots, meaningful enforcement of two-party representation in poll workers, and extending the retention requirement for election-related records.

However, this plan is, for the most part, an encouraging start.




Comments

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1
Thanks for Posting this Adam, I wholeheartedly Agree with your Recommendations!!!!! I am letting everyone know about Coalition to Rescuer Michigan!
Paul Difflipp
Big Rapids, MI

[Reply]

paul-d
03/28/21 8:48 AM



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