By David McLoone
Michigan State Court of Claims Chief Judge Christopher Murray has ruled that guidelines issued by Michigan Secretary of State Jocelyn Benson on ballot signature verification during the 2020 presidential election cycle were a violation of state law, rendering the guidelines invalid.
In October 2020, Benson had created a guidance document entitled “Absent Voter Ballot Processing: Signature Verification and Voter Notification Standards” for Michigan clerks, instructing them to presume the authenticity of signatures on absentee ballots. According to Murray, Benson did not follow due process in accordance with state and federal law, contravening the Administrative Procedures Act (APA) and making the guidance non-binding on clerks.
Benson’s guidelines instructed clerks to “perform their signature verification duties with the presumption that the voter’s application or envelope signature is his or her genuine signature,” and that signatures “should be considered questionable” only if varying “in multiple, significant and obvious respects from the signature on file,” The Epoch Times reported.
Murray commented, “The presumption (of validity) is found nowhere in state law,” adding that the “mandatory presumption goes beyond the realm of mere advice and direction, and instead is a substantive directive that adds to the pertinent signature-matching standards.”
“The standards issued by defendant Benson on October 6, 2020, with respect to signature-matching requirements amounted to a ‘rule’ that should have been promulgated in accordance with the APA … And absent compliance with the APA, the ‘rule’ is invalid,” Murray declared in the court order.
Murray noted specifically that the rule stipulated only signatures with “multiple significant and obvious” discrepancies ought to have their authenticity doubted, arguing that “An agency must utilize formal rulemaking procedures when establishing policies that ‘do not merely interpret or explain the statute or rules from which the agency derives its authority,’ but rather ‘establish the substantive standards implementing the program.’”
The “rulemaking procedures” stipulated by the APA are lengthy, requiring state agencies to follow strict procedures for filing requests, public comment, public hearings, and impact analyses before obtaining approval from the state legislature’s bipartisan Joint Committee on Administrative Rules. The committee has a limited timeframe in which it must decide on the rules before they are filed with the Secretary of State.
Murray explained that “Nowhere in this state’s election law has the legislature indicated that signatures are to be presumed valid, nor did the legislature require that signatures are to be accepted so long as there are any redeeming qualities in the application or return envelope signature as compared with the signature on file.”
“Policy determinations like the one at issue — which places a thumb on the scale in favor of a signature’s validity — should be made pursuant to properly promulgated rules under the APA or by the legislature.”
The Michigan Republican Party, which was one of the parties that filed the legal complaint against Benson and Jonathan Brater, director of the Michigan Bureau of Elections, expressed disappointment that the decision came too late to affect the outcome of the presidential election.
“It was clear from the outset that the Secretary of State had violated Election Law by unilaterally directing local clerks to ignore their statutory obligation to compare absentee ballot signatures,” said Ted Goodman, communications director for the state Republicans.
Republican state Rep. Matt Hall of Marshall issued a statement after Murray’s decision, praising the court for ruling against Benson: “I’m glad the court sees Secretary of State Benson’s attempts at lawmaking for what they are – clear violations of her authority … She issued a mandatory directive requiring local election officials to apply a presumption of validity to all signatures on absent voter ballots, but there is nothing within state law allowing for that type of power from her position. As a result, this directive was found to be not in accordance with our laws and not valid.”
Continuing, Hall added that “If (Benson) wants to make changes like these, she needs to work with the legislature or properly promulgate them through the laws we have on the books – in this case the Administrative Procedures Act.”