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Election Law @ Moritz

Election Law @ Moritz


2008 Key Questions for Key States

Michigan

The complete research by Election Law @ Moritz for Michigan can be found below.

Institutional Arrangements

State Chief Election Authorities

Elected individual (R)

Chief election authority: Secretary of State. M.C.L.A. 168.21.

Method of selection: Elected. M.C.L.A. 168.76.

Current officer: Terri Lynn Land (R). State Police will move headquarters to Lansing despite opposition, AP Alert – Political, August 7, 2007. (Last updated 1/1/08)

State High Court Composition

R heavy/elected

Method of selection: Election. M.C.L.A. 168.396.

Justices: Clifford W. Taylor (R), Michael F. Cavanagh (D), Elizabeth A. Weaver (R), Marilyn Kelly (D), Maura D. Corrigan (R), Robert P. Young, Jr. (R), Stephen J. Markman (R) (Last updated 12/22/07)

Sources:

  • Wartergate redux, Michigan Lawyers Weekly, September 3, 2007.
  • Haste makes waste in Minnesota’s judicial budget, Michigan Lawyers Weekly, September 10, 2007.

Local Administrator Training

Periodic pre-election training/voluntary

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

Who tallies precinct results?

County canvassing board - partisanship unconstrained

The county board of canvassers totals the precinct results for the county.  MCLA 168.822.  The county board of canvassers consists of the chief judge of probate of the county or district, the county clerk, and the county treasurer. MCLA 168.23.

Who counts provisional ballots?

Local election authority - partisanship unconstrained

The municipal clerk determines whether to count provisional ballots. MCLA 168.813. Municipal clerks may be elected or appointed.

Who performs state canvass?

Special canvassing commission - appointed/bipartisan

The state board of canvassers canvasses municipal returns.  MCLA 168.842.  The state board of canvassers consists of 4 members appointed by the governor with the advice and consent of the senate. MCLA 168.22. The board consists of 2 members from each major political party.

Local Administrator

Municipal office - elected or appointed

Local Administrators' Party Affiliation

Unknown affiliation/elected

County Population Administrator/Affiliation Selection Voting technology
Detroit 900,198 Janice Winfrey (?) Elected PCOS – ES&S M100
Grand Rapids 195,115 Lauri Parks (?) Appointed PCOS – ES&S M100
Warren 136,118 Paul Wojno (?) Elected PCOS – Diebold Accuvote
Sterling Heights 127,476 Walter Blessed (?) Appointed PCOS – Diebold Accuvote
Flint 119,716 Inez Brown (?) Appointed PCOS – ES&S M100
Lansing 116,941 Chris Swope (?) Elected PCOS – Sequoia Optech
Ann Arbor 113,567 Jacquelin Beaudry (?) Appointed PCOS – Diebold Accuvote
Livonia 98,936 Linda Grimsby (?) Elected PCOS - ES&S M100
Dearborn 95,470 Kathleen Buda (?) Elected PCOS – ES&S M100
Westland 86,316 Eileen DeHart (?) Elected PCOS – ES&S M100

Voter Registration

Registration Deadline

30 days before election

Registration applications must be received on or prior to the thirtieth day before the election. MCLA 168.497.

Notice of Registration Error

Yes

Voters will receive notification if their application is rejected. MCLA 168.500d.

Opportunity to Correct after Registration Deadline

Unclear under state law

Michigan statutes guarantee the right to vote only to those who completed applications before the registration deadline. MCLA 168.500d. However, note that the Brennan Center put out a report in 2006 that says the applicant may correct right up to the time of voting. The source for this statement is not known.

HAVA matching standards

Hybrid standard

There are two Michigan matching processes, one for voters who submit driver's license numbers (or state ID numbers) on their voter registration applications, and one for applicants who submit social security numbers on their applications. The driver's license process does not require an exact match, but will identify both exact and close matches (our source said that, for instance, an applicant's driver's license being slightly off would be considered a close match). Exact matches are considered verified, while close matches are put into an "error reconciliation file" that is manually examined by the Secretary to determine whether the match is close enough to be considered verified. If the registration cannot be verified, the Secretary will contact the voter to obtain more info.

The social security process requires an exact match of social security number, date of birth, and first and last names. If the search does not obtain a match, the Secretary contacts the voter to obtain more info.

Note that approximately 90% of newly registered voters in Michigan register while obtaining their driver's licenses at DMV locations. This avoids most issues related to matching, because matching is not required by HAVA of those who register in person. The 90% figure is higher than in most states, because Michigan pioneered motor voter and has been promoting it since the 1970's.

Source: Phone conversation, Michigan Secretary of State's office, August 7, 2008.

Will the inability to verify social security number or driver's license number prevent registration?

Voter may cast an ordinary ballot after showing ID at polls

If the Secretary of State is unable to obtain a match, officials contact the voter for more information. If the voter does not submit corrected information, the only consequence is that the voter must present either their driver's license or their social security number at the time of voting. The voter still gets to cast a regular ballot. If the voter cannot provide either of the required numbers, the voter must cast a provisional ballot and return later with ID.

Source: Phone conversation, Michigan Secretary of State's office, August 7, 2008.

 

Challenges

Pre-election challenges

Challenges decided by local election official

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. MCLA 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 30 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.

Election day challenges

Successfully challenged voter must cast a provisional ballot

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. MCLA 168.727 ; Bay County Democratic Party v. Land, 347 F.Supp.2d 404, 430 (E.D.Mich., 2004). This includes the situation where the voter's signature on the ballot application does not match up with that kept on file. MCLA 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 (for instance, if postcards sent to the voters address by local election officials are returned undeliverable). This mark will appear when an election clerk previously made a good faith determination that the voter's registration was obtained fraudulently. MCLA 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. MCLA 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. MCLA 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.

Provisional Ballots

Provisional ballot - name not in poll book

Ballot will count if voter submits ID and affirmation or officials locate valid registration record

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 ….” MCLA 168.813. 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. Ordinarily voters should be able to cast a regular ballot by signing a similar affirmation but, in the event that for whatever reason they do not, they can always come back later and make their provisional ballot count.

Provisional ballot - voter cast ballot in wrong precinct

Ballot will not be counted

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 here 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.

Provisional Ballot Casting Rate - 2006

0-.25 percent of ballots cast at polls

0.06%

Provisional Ballot Counting Rate - 2006

10-20 percent of ballots counted

19.1%

Early and Absentee Voting

Convenience Voting

Neither early voting nor "no excuse" absentee voting

Michigan does not have early voting.

Absentee voting is permitted in Michigan only with an excuse.  MCLA 168.758.  Ballot requests must be received between the 75th day before the election and the Saturday prior to the election.  MCLA 168.759.  To count, completed absentee ballots must be received by 8 p.m. on election day.  MCLA 168764a, 168.759b.

Voting Technology

Voting Technology

Predominately or 100% OS

County Population Administrator/Affiliation Selection Voting technology
Detroit 900,198 Janice Winfrey (?) Elected PCOS – ES&S M100
Grand Rapids 195,115 Lauri Parks (?) Appointed PCOS – ES&S M100
Warren 136,118 Paul Wojno (?) Elected PCOS – Diebold Accuvote
Sterling Heights 127,476 Walter Blessed (?) Appointed PCOS – Diebold Accuvote
Flint 119,716 Inez Brown (?) Appointed PCOS – ES&S M100
Lansing 116,941 Chris Swope (?) Elected PCOS – Sequoia Optech
Ann Arbor 113,567 Jacquelin Beaudry (?) Appointed PCOS – Diebold Accuvote
Livonia 98,936 Linda Grimsby (?) Elected PCOS - ES&S M100
Dearborn 95,470 Kathleen Buda (?) Elected PCOS – ES&S M100
Westland 86,316 Eileen DeHart (?) Elected PCOS – ES&S M100

Does state law require a VVPAT?

No

Michigan uses all optical-scan voting systems by executive order (see here).

Polling Place Operations

Who are poll workers?

Appointed by local administrator/some minority party representation

The local board of election commissioners will appoint at least three poll workers to each precinct. MCLA 168.674. At least one poll worker will be from each major political party and the board shall appoint, as nearly as possible, an equal number of the remaining inspectors from those two parties.

The board of election commissioners consists of the municipal clerk, the municipal attorney and the municipal assessor. MCLA 168.25. In townships, it consists of the supervisor, the clerk and the township treasurer. MCLA 168.26.

Poll worker training

Prior to each election

County officials must put on a training school before each election for city and county poll workers to attend. MCLA 168.683. It is the duty of the poll workers to attend such training but clerks may excuse them for good cause. However, at a minimum, poll workers must have completed training in the previous two years or passed a test to serve at the polls. The Secretary of State must establish a program of "comprehensive training and accreditation" of all poll workers. MCLA 168.31.

Polling hours extension

Extensions probably not permitted

Neither courts nor election administrators have the authority to extend polling hours in response to an emergency. Southerland v. Fritz, 955 F.Supp. 760, 762 (E.D.Mich., 1996). It is not clear whether this is an authoritative decision, coming as it does from a federal court.

Voting hours are 7 a.m. to 8 p.m. MCLA 168.720.

Voters in line at the close of polls will be allowed to vote. MCLA 168.720.

Polling place closing times - local times

8:00 PM local time

Polling place closing times - by Eastern time zone

8:00 PM Eastern time

Ballot Security

Voter ID requirements

Photo ID required

Michigan requires voters to show an official state identification card, an operator’s or chauffeur’s license, or other “generally recognized picture identification card.” MCLA 168.523. The elector must also execute an application showing his or her signature and address of residence in the presence of an election official.

A document on the Secretary of State’s website lists the following as generally accepted forms of ID for voters who do not possess either a Michigan driver’s license or a Michigan personal identification card: 1) driver’s license or personal identification card issued by another state; 2) federal or state government-issued photo identification; 3) US passport; 4) military identification card with photo; 5) student identification with photo from a high school or an accredited institution of higher education; 6) tribal identification card with photo (see here).

Consequences of failure to present ID

Voter may cast an ordinary ballot after signing affidavit

Michigan voters who cannot present ID may sign an affidavit stating that they do not have any of the required forms of identification. MCLA 168.523. They may then cast an ordinary ballot.

Consequences of failure to present ID

Voter may cast an ordinary ballot after signing affidavit

Michigan voters who cannot present ID may sign an affidavit stating that they do not have any of the required forms of identification. MCLA 168.523. They may then cast an ordinary ballot.

Follow-up required of voter

N/A

Voters without ID can vote a regular ballot by signing an affidavit stating that they have no ID.  The ballot will be counted just like any other ballot, and no follow-up is required.

Emergency Preparedness

Natural Disasters or Emergencies

No election-specific emergency provision

Michigan does have a general provision about emergencies allowing the governor to suspend regulatory provisions but it is unclear whether or to what extent this applies to elections.  MCLA 30.405.

No emergency procedures could be found in procedures or training manuals that were available online.

Ballot Shortages

Unclear under state law

Substitute ballots may be printed in the event of a ballot shortage. MCLA 168.705. The law does not state whether it is local administrators or poll workers, or both, who are authorized to create these extra ballots. However, training materials issued by the Secretary of State suggest that only local election officials are authorized to do this. The secretary of state, however, publishes a newsletter for local election officials and, in a January 2008 issue, she instructed local clerks to photocopy an "adequate supply" of any ballot style that runs low on election day and to hand-number them.  Michigan Secretary of State, News You Can Use, Issue 346, Jan. 14, 2008.

Michigan photocopied ballots in November, 2006 and had to hand count them because the tabulating machine could not read the duplicated bar codes on the copies. Election workers to receive overtime for wee-hours work, Saginaw News, Dec. 5, 2006.

What if touchscreens break down?

N/A

Michigan uses optical scan paper ballots exclusively and does not have to deal with the issue of malfunctioning touchscreens. Nevertheless, it does have a provision on the books that provides fthat officials will provide emergency ballots to precincts when a voting machine is disabled and cannot be repaired. MCLS 168.782b.

Post-Election Processes

State certification deadline

Second week of December

The board meets at the office of the secretary of state on or before the 20th day after an election. MCLA 168.842.  The board must complete its canvass by 40 days after the election. Upon completion of the canvass, the board delivers a certificate of determination to the secretary of state. MCLA 168.841.

Election contest deadline

Other

There is no exact deadline by which those contesting a candidate election (including a presidential 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).

 

Local count deadline

Between 8 and 14 days after the election

The county board of canvassers meets at the office of the county clerk at 1:00 p.m. on the day after the election or primary. MCLA 168.821. The board must conclude its canvass within 14 days of the election. MCLA 168.822. Certified statements are filed with the county clerk. MCLA 168.825. The county clerk then transmits a copy of the certificate to the secretary of state. MCLA 168.827.

Audit type

None

Michigan election law does not provide for audits. 

Audit scope

No audits authorized

No authorization for audits of voting machine accuracy was found.

Candidate-requested recounts

Upon request

A candidate who believes he or she is aggrieved on account of fraud or mistake may petition for a recount. MCLA 168.862; 168.879. For federal and statewide offices, the deadline for the petition is 48 hours after the results are certified. MCLA 168.879.

Administrative Recounts

Local officials may order

When the county board of canvassers determines there has been an error, it may summon poll workers and cause them to recount the ballots. MCLA 168.823.

Automatic Recounts

Other

Triggered at 2,000 votes.

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

Defintion of a vote

Concrete standard

Michigan law stipulates that a cross or a check mark before a candidate’s name is required to constitute a vote for that candidate. MCLA 168.737. This definition is completed by a short list of types of crosses or check marks that do or do not count. MCLA 168.803

Election Contest Scenario #1: Unverified Ballots

Random withdrawal

After the close of polls, election judges shall compare the number of ballots with the number of voters recorded in the poll list. M.C.L.A. 168.802; Groesbeck v. Board of State Canvassers, 232 N.W. 387, 390 (Mi., 1930). If the number of ballots exceeds the number of voters, the judges will randomly withdraw ballots until the numbers match. Id. The withdrawn ballots are destroyed. Id.

However, sometimes election judges in the precincts fail to withdraw the excess. In this case, the general rule is that the state or local Board of Canvassers should do it upon recount. Groesbeck at 309. The Board of State Canvassers prescribes the procedures to be followed in this case. Ryan v. Montgomery, 240 N.W.2d 236, 239 (Mich., 1976). The presiding Board of Canvassers will start by eliminating blank ballots and ballots that contain undervotes for the disputed office. MI ADC R. 168.921. If that is not enough to make the numbers match, the Board will shuffle the ballots and randomly withdraw sufficient of them to make the numbers match. Id.

If both precinct officials and recount officials fail to withdraw the excess, different rules may apply. Michigan courts have only been confronted with this issue once, and the justices in that case could not agree on how to handle it. In People ex rel. Williams v. Cicott, 1868 WL 3266 (Mich., 1868)(overruled on other grounds), the court ordered a new trial, but first noted that the original trial determined that sixteen unverified votes - more than the margin of victory - had made their way into the pile and could not be separated. Id. at 13. Justice Campbell stated that where the unverified ballots could not have turned the election, the election should be upheld, but where as in this case the number of unverified ballots exceeded the margin of victory “the election must be deemed to have miscarried….” Id. Justice Christiancy would have apportioned the votes “among the respective parties and candidates substantially according to their respective numbers of votes.” Id. at 18. Justice Cooley would have followed a procedure that paralleled the canvassing statute and randomly withdrawn the excess (“The statute makes the best disposition of the case which the wisdom of the legislature has been able to devise.”). Id. at 22. Without any further interpretation from the courts, it is unclear what to make of Cicott.

Election Contest Scenario #2: Provisional Ballots with Technical Mistakes

Unclear

Local election officials must use their judgment. Michigan law does not specify whether inadvertent errors by a voter while applying for a provisional ballot will invalidate those ballots. Michigan law states only that provisional ballots will be counted (1) when a valid voter registration record is located that reflects that the voter registered prior to the registration deadline preceding the election or (2) when the identity and residence of the voter is established with a combination of proper ID and/or documents presented by the voter within six days of the election. M.C.L.A. 168.813(1). The statute does not spell out what exactly is necessary for the identity and residence of the voter to be “established.”

Individuals voting provisional ballots must first execute a sworn statement affirming that the individual is eligible and submitted a voter registration application before the close of registration. M.C.L.A. 168.523a. The individual must also state the approximate date of registration and whether the application was submitted to a department of state office, to a designated voter registration agency, to the office of the local clerk, or by mail. Insofar as this information is, in the judgment of the election officials counting the ballots, necessary to locate a prior registration record or verify the identity and residence of the voter, omissions may lead to uncounted ballots. But that lies within the judgment of officials, not in black letter law.

What Court Would Hear a Presidential Contest?

Intermediate appellate court

Michigan election contests are governed by M.C.L.A. 600.4505. Stokes v. Clerk of Bd. of Canvassers of Monroe County, 29 Mich.App. 80, 85 (Mich.App., 1970). These contests are brought in the court of appeals, which are intermediate appellate courts. 4 MICRP TEXT R. 3.306. Court of appeals judges are elected. M.C.L.A. 168.409e.  

Who Performs Presidential recounts?

Bipartisan

The state Board of Canvassers performs recounts in Presidential races. MCLA 168.890; Election News # 39, p. 2. However the state Board need not personally oversee the counting of every ballot, but may designate a single member of the 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. MCLA 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. MCLA 168.22a.