Examples of Election Manual Guidelines in Conflict with Michigan Election Law

by PIME supporter Louis Avallone

Prepared Nov 8, 2021, and submitted to Secretary of State Jocelyn Benson

PART 1. THREE KEY VIOLATIONS OF STATE LAW NEED IMMEDIATE REMEDY 

The Secretary of State’s statewide election manuals provide guidance in conflict with Michigan statute language and promote unlawful actions. These flawed guidelines likely resulted in acceptance of countless invalid ballots by otherwise diligent election officials, unfamiliar with statute text. Comprehensive auditing of all election documents, including ballots, ballot envelopes, ballot applications, and poll book records may be crucial to fully assess the magnitude of this effect at past elections for which those records still exist. As importantly, errors and illegal claims in the training materials need to be corrected before the next election. Otherwise, the state of Michigan will continue to perpetuate unrecognized violations of election laws and jeopardize fair and honest elections. 

Of the discrepancies found in the training materials, the most glaring and disturbing occur in the following areas:

1. Signature matching guidelines
2. Acceptance of absentee ballots with incorrect stubs
3. Omission of key requirements for appointing election inspectors

Every violation of election law by any election official is punishable as a misdemeanor, or worse. If strict statutory requirements no longer serve the public interest, the Legislature has the authority and responsibility to make appropriate amendments. Such amendments should always honor the constitutional directive to preserve voters’ rights – including the Article II Section 4(2) mandate to “guard against abuses of the elective franchise” (i.e., voting fraud).

The material in this document should not be construed as a complete list of unlawful election manual instructions. Condensed arguments for some of the most obvious instances are presented in the ‘SUMMARY’ paragraphs that follow. More complete citations and additional discussions that further highlight the unlawful instructions are presented in the ‘DETAILS’ section of this document.

1. DISCREPANCIES IN SIGNATURE MATCHING GUIDELINES 

Election manuals explicitly state an absentee ballot return envelope signature may be validated using the signature from the corresponding absentee ballot application. Below is an excerpt from ELECTION OFFICIALS’ MANUAL, Michigan Bureau of Elections, Chapter 6, October 2020 “Chapter 6 Michigan’s Absentee Voting Process” (VI_Michigans_Absentee_Voting_Process_265992_7.pdf), Page 11:

 “Upon the receipt of a returned absentee ballot, the signature appearing in the above certificate [absentee ballot return envelope] must be checked against the signature on the applicant’s application or QVF to verify the applicant’s identity”

The highlighted text above is contrary to statutory language that mandate the signature image from the QVF, or the ‘registration master card’ to be used as the reference source for all signature comparisons.

MCL 168.761(2):

 “The qualified voter file must be used to determine the genuineness of a signature on an application for an absent voter ballot. Signature comparisons must be made with the digitized signature in the qualified voter file. If the qualified voter file does not contain a digitized signature of an elector, or is not accessible to the clerk, the city or township clerk shall compare the signature appearing on the application for an absent voter ballot to the signature contained on the master card….”

MCL 168.766(2):

 “The qualified voter file must be used to determine the genuineness of a signature on an envelope containing an absent voter ballot. Signature comparisons must be made with the digitized signature in the qualified voter file….”

It may seem reasonable that if the signature on an absentee ballot application is first verified using the QVF, then this ‘verified’ signature from the absentee ballot application can be used as a reference to verify the signature on the absentee ballot return envelope. At first glance, one is tempted to think that few negative outcomes spawn from this unlawful practice as outlined in election manuals. However, an unrecognized ‘flawed’ or ‘fraudulent’ signature on an absentee ballot application could subsequently result in acceptance of a similarly ‘flawed’ or ‘fraudulent’ signature on an absentee ballot envelope. This possibility is greatly diminished when election law is observed, and the QVF signature image, exclusively, is used as the reference signature.

2. ACCEPTANCE OF ABSENTEE BALLOTS WITH INCORRECT STUBS

Serialized ballot stubs are capable of preventing fraudulent ballots from being introduced into the voting pool. They provide one of the few existing ballot security mechanisms by which election officials can verify that the specific ballot, as supplied to a voter, is the same exact legal document that was returned by the voter. Unfortunately, current election manuals completely bypass instructions regarding the legal protections on absentee ballots as provided by serialized ballot stubs.

One can imagine that fraudsters with sufficient resources and commitment will always find a way to perpetrate their crime of choice. In relation to election security, the Legislature should aim to make this a difficult and expensive exercise, enshrining in statute all reasonable steps to prevent it. With a little creativity, one can imagine scenarios in which a voter’s absentee ballot return envelope may be ‘intercepted,’ steamed open, and the ballot replaced with another that no longer represents the will of the qualified voter. In fact, one does not have to imagine it at all, it is a fully documented and confessed scenario from a NY POST report prior to the 03Nov2020 election (https://nypost.com/2020/08/29/political-insider-explains-voter-fraud-with-mail-in-ballots/). 

Until all reasonable ballot security measures are evaluated, the ones already implemented must be properly utilized, or they become false assurances of voting system integrity. They are the last line of defense to protect the will of a single qualified voter from being hijacked via ballot ‘substitution.’ Plus, they are the last line of defense to protect or the collective will of all qualified voters from being diluted by invalid ballots. 

Election manuals for in-person precincts are ‘partially correct’ in that they dictate ballots with missing stubs are to be rejected, and the voter is not allowed access to another ballot. However, when similar (potentially fraudulent) absentee ballots with incorrectly numbered stubs are encountered (in-precinct or at a counting board), they are to be prepared as “challenged ballots” – which means they are marked for future review, but still tabulated with all of the normal ballots. These instructions violate statutory requirements. At in-person precincts, statutes mandate the rejection of all ballots that are presented with incorrect or missing stubs. Other statutes extend the same requirements to absent voter counting boards.

From the election training material for precinct voters, MANAGING YOUR PRECINCT ON ELECTION DAY ELECTION INSPECTORS’ PROCEDURE MANUAL ED-124 (1/29/2020) (ManagingYourPrecinctonElectionDay.pdf), Page 16-17:

 “If a ballot stub is missing and cannot be accounted for, reject the ballot. Enter a notation in the Remarks section of the ePollbook and contact the clerk for further instruction.”

From the same election training material for absentee ballots, Page 37-38:

 “If the ballot numbers do not agree or the ballot stub is missing and no explanation for the discrepancy can be found (i.e., voters voting in the same household switched their ballots), the ballot must be prepared as a challenged ballot.”

MCL 168.797a:

 “…(2)…An election inspector shall ascertain, by comparing the number appearing on the ballot stub with the number recorded on the poll list, that the ballot delivered by the voter is the same ballot that was issued to the elector. If the numbers do not agree, the ballot shall be marked as “rejected”, and the elector shall not be allowed to vote…. 

 …(3) A ballot from which the stub is detached shall not be accepted by the election inspector in charge of the ballot box or other approved ballot container. …

 …(5) Except as otherwise provided in this act, an election inspector shall not allow any portion of a ballot, including a ballot stub, to be removed by any person other than an election inspector from the polling place….”

MCL 168.765a(8):

 “… The absent voter counting boards and combined absent voter counting boards shall process the ballots and returns in as nearly as possible the same manner as ballots are processed in paper ballot precincts. …”

Recommendations

Election law statutes cannot be interpreted as allowing ‘discretionary’ differences in ballot processing between precincts and counting boards. Additionally, there exists no statutory assertion or suggestion that any ballot with incorrect or missing stubs may be prepared as a “challenged ballot.” The only statutory disposition of such ballots is “rejection.”

If rejection of ballots submitted with incorrect stubs seems harsh (although it is the law), there are immediate measures the secretary of state has the authority to implement, or the Legislature could mandate, to eliminate the potential rejection of ballots due to clerical errors. In keeping with PIME’s mission to make it “Easy to vote, and hard to cheat,” we offer the following remedy: 

  1. Clearly mark on each ballot and each stub with the following statements: “Do Not Remove Stub. If Stub Is Removed Accidentally, Contact Clerk For A Replacement Ballot. Ballot Will Not Be Accepted If Stub Is Removed.” As a supporting measure, clearly mark on each ballot the following additional statements: 

Verify the number of the stub attached to this ballot matches the number on the return envelope (or ballot application). ballot will not be accepted if stub number is incorrect. If stub numbers do not match, contact clerk for a replacement ballot.

  • Additionally, provide voters with like instructions, and make the electorate more aware of how numbered ballot stubs play an important role in securing the will of each individual voter. Finally, to give absentee voters 100% confidence that their ballot has not been altered or ‘substituted’ since leaving their control, implement envelope security measures, including . tamper proof or tamper evident seals, that are immediately available, and provide clear evidence when a ballot may have been compromised. 
3. OMISSION OF KEY REQUIREMENTS FOR ASSIGNING ELECTION INSPECTORS

Election inspectors are the essential frontline workers needed to keep the elections free and fair. It is natural to expect that an election worker’s preferred election outcome might unconsciously be expressed when not in-check. Election law recognizes this reality and provides the perfect mechanism to keep polling places neutral. It requires equal numbers of partisan election inspectors to self-police one another. It is important to remember that election inspectors need not live in the precinct in order to work in the precinct. 

Therefore, the wording in this statute needs to be reinforced—or legally enforced—to explicitly require equal numbers of partisan election inspectors, subject to the two major political parties supplying applications of qualified candidates by a specified deadline for the clerk to interview and select for hiring.

MCL 168.674(2):

 “…The board of election commissioners shall appoint at least 1 election inspector from each major political party and shall appoint an equal number, as nearly as possible, of election inspectors in each election precinct from each major political party…”

 “…Not later than 2 business days following the appointment of election inspectors under subsection (1) for elections in which a federal or state office appears, the board of election commissioners shall notify by certified mail, personal service, or electronic transmission capable of determining date of receipt the county chair of each major political party of the names and political party affiliations of appointed election inspectors and the precincts to which those inspectors were appointed…”

MCL 168.675(6):

 “…Election inspectors may be appointed by the board of election commissioners under this subsection before written notice is provided to the secretary of state under this subsection. Sections 673a and 674 apply to the appointment of election inspectors under this subsection. All requirements for election inspectors appointed to an absent voter counting board under section 765a apply to election inspectors appointed under this subsection. At all times, at least 1 election inspector from each major political party must be present at the location…”

Election manuals (in partial correctness) emphasize some of the critical statute language for in-person voting precincts. Disappointingly, the statute language is softened from the requirement of “an equal number, as near as possible” to the much more ambiguous “politically balance each precinct board.” The citation below is from Election Officials Manual, Michigan Bureau of Elections, Chapter 13, Update February 2019, (XIII_Appointing_and_Training_Election_Inspectors_266018_7.pdf), Page 1:

 “…The election commission is required to appoint “at least 1 election inspector from each major

political party.” In addition, the election commission is required to politically balance each precinct board “as nearly as possible.” A “major political party” is defined as “each of the 2 political parties whose candidates for the office of secretary of state received the highest and second highest number of votes at the immediately preceding general election in which a secretary of state was elected….”

However, the election manuals specific to absent voter counting boards only make arbitrary and passing reference to statutory requirements for equal representation of the major political parties. The references are not appropriately quoted to clearly outline the statutory requirements – or the companion election manual chapters that might contain the appropriate details. 

The only statute text emphasized is that which states one election inspector from each major political party must always remain present. This is an additional requirement, not a substitute for the requirement that appointments be made in “an equal number, as nearly as possible”. From Election Official’s Manual, Michigan Bureau of Elections, Chapter 8, Update October 2020, (VIII_Absent_Voter_County_Boards_265998_7.pdf), Page 9:

 “Subsection 2 addresses the appointment of election inspectors. It states that: “the board of electioncommissioners shall appoint the election inspectors to those absent voter counting boards not less than 21 days or more than 40 days before the election at which they are to be used. Sections 673a and 674 apply to the appointment of election inspectors to absent voter counting boards under this section.” MCL168.765a(2).”

Page 10:

 “…Each shift should have the statutorily required balance of election inspectors from both parties….”

Page 11:

 “…Election inspectors must be appointed to pre-processing locations under the same procedures used to appoint election inspectors to absent voter counting boards, including the requirement that at all times, at least 1 election inspector from each major political party be present at the location….”

The ambiguity in the election manual guidelines leads to disparity in political party representation that thwarts the ‘self-policing’ mechanism required by election law. The election inspector appointment manifest for the TCF Center at the 03Nov2020 election indicated there were 1,641 assigned election inspectors. Of these, only 48 were identified as Republicans (i.e. ~3%), and 863 were identified as Democrats (i.e., ~53%). Put another way, there was only 1 Republican for every 18 Democrats. There is no way to justify this disparity as anything close to “an equal number, as nearly as possible, of election inspectors in each election precinct from each major political party.”

PART II: SUPPORTIVE INFORMATION AND DOCUMENTATION

SIGNATURE MATCHING GUIDELINES DISCREPANCIES

Sworn testimony to the MI Senate Oversight Committee from Chris Thomas, in his capacity as an advisor to the Detroit clerk and a 40-year election expert, confirmed it is common practice for the signature of an absentee ballot application to be used to validate the signature of an absentee ballot return envelope. Although violating the statute in this manner likely does not create negative consequence in many instances, it removes process safe-guards that can lead to the acceptance of fraudulent absentee ballots. 

An established reference image from the QVF must be used in all cases so that unrecognized signature errors on an absentee ballot application do not cascade into acceptance of an invalid signature on an absentee ballot return envelope. 

The Secretary of State should consider approaching electronic signature verification from an engineering process perspective as recommended by Dr. Shiva Ayyadurai. Pattern Recognition Classification of Early Voting Ballot (EVB) Return Envelope Images for Signature Presence Detection: An Engineering Systems Approach to Identify Anomalies to Advance the Integrity of U.S. Election Processes by Dr. Shiva Ayyadurai, MIT PhD: https://c692f527-da75-4c86-b5d1-8b3d5d4d5b43.filesusr.com/ugd/2f3470_05deb65815ab4d4b83938d71bc53459b.pdf

Signature verification is subject to partisan oversight in many other states. Although the vast majority of clerks likely execute the signature verification task with the expected neutrality, one bad actor in a thousand can seriously compromise an election. Objective computer-imagingbased signature matching technologies should be evaluated as a means to both ensure impartiality and reduce clerk workload burden as more voters opt to cast absentee ballots. 

Despite extensive claims by election officials, a simple process flow diagram can easily prove that handling and tabulating absentee ballots is less time consuming than handling and tabulating in-person ballots. For one reason, during absentee ballot processing, the ‘voter identity confirmation’ step is completely transferred from the election inspectors to the clerk. An electronic signature verification system, by design, would always use the statute-specified reference- signature image for signature verification. This technology would apply unbiased, consistent, and uniform scrutiny to all signatures. Adoption of this type of strategy remains an unfulfilled promise from Secretary Benson who publicly announced her intention to institute this change on Frank Beckman’s radio show:https://www.senatorruthjohnson.com/senate-elections-committee-hears-from-local-clerks-frustrated-with-secretary-of-states-office/.

At best, this announcement appears to have been a head fake to convince Michigan voters that the secretary of state recognized the importance of ballot security. Soon after making the public statements, she executed an illegal 180-degree U-turn and instituted her ‘anything goes’ signature verification rules.

Below is an excerpt from ELECTION OFFICIALS’ MANUAL, Michigan Bureau of Elections, Chapter 6, October 2020 “Chapter 6 Michigan’s Absentee Voting Process” (VI_Michigans_Absentee_Voting_Process_265992_7.pdf)Page 11 asserts that a voter’s absentee ballot application signature can be used to verify the authenticity of the signature on the absentee ballot return envelope. 

MCL 168.761(1), MCL 168.761(2), MCL 168.765a(6), MCL 168.766(1), MCL 168.766(2), and MCL 168.767 define requirements for absentee ballot application and absentee ballot return envelope signature verification. In all cases, the signature from the ‘master registration card’ or its digitized image saved in the QVF must be used to verify the validity of the signature on an absentee ballot application, or the signature on an absentee ballot return envelope.

MCL 168.761(1):

 “If the clerk of a city or township receives an application for an absent voter ballot from a person registered to vote in that city or township and if the signature on the application agrees with the signature for the person contained in the qualified voter file or on the registration card as required in subsection (2)….”

MCL 168.761(2):

 “The qualified voter file must be used to determine the genuineness of a signature on an application for an absent voter ballot. Signature comparisons must be made with the digitized signature in the qualified voter file. If the qualified voter file does not contain a digitized signature of an elector, or is not accessible to the clerk, the city or township clerk shall compare the signature appearing on the application for an absent voter ballot to the signature contained on the master card….”

MCL 168.765a(6):

 “Written or stamped on each of the return envelopes must be the time and the date that the envelope was received by the clerk and a statement by the clerk that the signatures of the absent voters on the envelopes have been checked and found to agree with the signatures of the voters on the registration cards or the digitized signatures of voters contained in the qualified voter file as provided under section 766….”

MCL 168.766(1):

 “Upon receipt from the city or township clerk of any envelope containing the marked ballot or ballots of an absent voter, the board of inspectors of election shall verify the legality of the vote by doing both of the following: Examining the digitized signature for the absent voter included in the qualified voter file under section 509q or the registration record as provided in subsection (2) to see that the person has not voted in person, that he or she is a registered voter, and that the signature on the statement agrees with the signature on the registration record….”

MCL 168.766(2):

 “The qualified voter file must be used to determine the genuineness of a signature on an envelope containing an absent voter ballot. Signature comparisons must be made with the digitized signature in the qualified voter file. If the qualified voter file does not contain a digitized signature of an elector, or is not accessible to the clerk, the city or township clerk shall compare the signature appearing on an envelope containing an absent voter ballot to the signature contained on the master card….”

MCL 168.767:

 “If upon an examination of the envelope containing an absent voter’s ballot or ballots, it is determined that the signature on the envelope does not agree sufficiently with the signature on the registration card or the digitized signature contained in the qualified voter file as provided under section 766 so as to identify the voter or if the board shall have knowledge that the person voting the ballot or ballots has died, or if it is determined by a majority of the board that such vote is illegal for any other reason, then such vote shall be rejected….”

MCL 168.501 provides a definition of the “master registration cards,” and citations in MCL 168.761(1) make it clear that an ‘absentee ballot application’ is not the same thing as a ‘registration card’.

MCL 168.501:

 “The master registration cards must be filed alphabetically and must be termed the “master file.” The master file must contain the signature of each elector registered in the city or township, unless the clerk of the jurisdiction has access to the qualified voter file and the elector has a digitized signature in the qualified voter file. If an elector is unable to write or sign his or her name because of a physical disability, the master file must contain the mark or signature stamp used by that elector when a signature is required….”

All election law statutes dealing with signature verification require the absentee ballot application or absentee ballot return envelope signature to be compared explicitly to the signature on the ‘registration master card’ or its equivalent digitized image stored in the QVF. Some statutes reference the ‘master registration card’ as the ‘master card,’ and others reference the ‘registration card’ or ‘registration record.’ These references are all to the same document – which is the physical record containing the clerk-obtained ‘master’ signature of the voter. 

MCL 168.761(2) makes it absolutely clear that the ‘absentee ballot application’ is not the same document as the ‘registration card.’ This statute instructs that the signatures on these two distinct documents are to be compared to validate the signature on the ‘absentee ballot application’. 

However, several election manuals, as well as high-ranking election official and assistant in their public testimony, have assert that it is proper and legal for the signature on the ‘absentee ballot application’ to be used to validate the signature on the ‘absentee ballot return envelope.’ It is unknown when such instructions were first incorporated into the election manuals. As a result, this unlawful guidance may have given rise to more violations of election law statutes than are possible to count. Under election law, each infraction is punishable as a misdemeanor. 

Recommendation: The election manuals should be immediately corrected to provide only lawful instructions, as election officials that convey unlawful instructions are themselves presumed guilty of a misdemeanor. 

ACCEPTANCE OF ABSENTEE BALLOTS WITH INCORRECT STUBS

A Bureau of Elections online training video instructs that absentee ballots without correct stubs are to be prepared as ‘challenged ballots’ and then tabulated. The screenshot below comes from MI SoS YouTube training found at: https://www.youtube.com/watch?v=2EhUddpcDns (9:41/17:20). 

Similarly, SoS training manuals instruct that absentee ballots without correct stubs are to be prepared as ‘challenged ballots’ and then tabulated. Below are excerpts from MANAGING YOUR PRECINCT ON ELECTION DAY ELECTION INSPECTORS’ PROCEDURE MANUAL ED-124 (1/29/2020) (ManagingYourPrecinctonElectionDay.pdf).

Page 37-38 screen shot – absentee ballots without stubs to be prepared as ‘challenged ballots’

Page 22-23 screen shot – instructions for preparing ‘challenged ballots’


Pages 16-17 of the same election manual instructs that in-person precinct ballots returned without the correct stub are to be rejected and the clerk is to be consulted.

In contrast to election manuals’ guidance to accept absentee ballots with incorrect stubs, the statutory instructions explicitly reject (any) ballots received with incorrect stubs.

First, several statutes define the conduct for in-precinct voting. They make it clear that ballots with missing or incorrect stubs , and stubs that were not removed by the election inspector, are to be rejected.

MCL 168.797a:

 “…(2)…An election inspector shall ascertain, by comparing the number appearing on the ballot stub with the number recorded on the poll list, that the ballot delivered by the voter is the same ballot that was issued to the elector. If the numbers do not agree, the ballot shall be marked as “rejected”, and the elector shall not be allowed to vote….”

 “…(3) A ballot from which the stub is detached shall not be accepted by the election inspector in charge of the ballot box or other approved ballot container. …”

 “…(5) Except as otherwise provided in this act, an election inspector shall not allow any portion of a ballot, including a ballot stub, to be removed by any person other than an election inspector from the polling place….”

Second, other statutes include passages that require ballot processing at absent voter counting boards to be the same as that of paper (i.e. in-person) precincts, and that verifying the correctness of ballot stub numbers is mandatory for absentee ballot processing. The included verbiage “as nearly as possible the same manner” cannot possibly grant completely discretionary authority to apply a completely different set of rules. Rather, seems to allow for minor deviations only when they are critically necessary. It is simply an acknowledgment that procedural steps such as those specifically required for interactions with voters at in-person precincts have no meaning at counting boards where there are no voters present.

MCL 168.765a(8): 

 “… The absent voter counting boards and combined absent voter counting boards shall process the ballots and returns in as nearly as possible the same manner as ballots are processed in paper ballot precincts. …”

MCL168.765(6):

 “…a city or township clerk, or his or her authorized designee, on the day before election day is only authorized to perform standard processing activities up to and including the opening of absent voter ballot return envelopes and the removal of absent voter ballot secrecy envelopes containing absent voter ballots and to verify that the ballot number on the ballot stub agrees with the ballot number on the absent voter ballot return envelope label…”

Lastly, the only election manual instructions cited above that are fully consistent with statute text is in the description of how challenged ballots are to be prepared – although such instructions have no bearing on absentee ballot processing.

MCL 168.745 provides guidance on how to process challenged ballots

 “…said inspectors shall cause to be plainly endorsed on said ballot, with pencil, before depositing the same in the ballot box, the number corresponding to the number placed after such voter’s name on the poll lists…”

A “challenged ballot” is prepared only when a person’s qualification to vote is questioned. In such cases, the ballots are discretely marked so that if an election is contested, all ‘challenged voters’ who are later deemed ineligible to vote can have their specific ballots removed from the voting pool. When a ballot is returned with an incorrect stub, the (presumed) voter’s qualification to vote is not being question, the explicit validity of the ballot is suspect. It is no longer certain whether this ballot was the unique one provided to the voter, or one that may have been (illegally) substituted in the return envelope after leaving the custody of the voter. With hundreds of thousands of absentee ballots widely distributed to the public and never returned by the specific assignee, ‘substituted’ ballots can simply be genuine ballots originally distributed ‘legally,’ but later intercepted and returned unlawfully. 

In this case, accepting the ballot is akin to allowing voter fraud, and explicitly violating the law. The statutory requirements are clear even for in-precinct voting in which a voter’s qualifications are more positively confirmed with a photo ID. In this case, it is arguably almost impossible for a voter to try and submit a ballot that was not given to them. However, if current law is to be respected, when such a voter submits a ballot with a stub number that was not issued to that voter, that ballot is to be rejected, and they are not allowed access to another ballot.

Although it is possible that the presence of an incorrect (or missing) stub on an absentee ballot is the result of clerical errors, it is at least equally likely the result of fraud. The mere fact that thousands of such instances are openly acknowledged by both Republican election challenger affidavits and in senior Democratic election official’s sworn testimony for just the Detroit TCF Center operations, should be immediate cause for concern. 

Even if every single instance is the result of clerical error, how could the presence of so many of them be considered normal and acceptable? The scale of the problem is worthy of detailed review and scrutiny (i.e., auditing). Even if every last instance turns out to be an ‘innocent’ mistake – when all are combined, such a large number is an admission of a fatally flawed process, or gross incompetence and misfeasance. 

Additionally, if this many clerical errors are present for just one step in the process, how many thousands of other clerical errors or poor adherence to election manuals (and laws) go unrecognized and unaddressed?

OMISSION OF KEY REQUIREMENTS FOR ASSIGNING ELECTION INSPECTORS

Instead of taking the issue seriously, Secretary Benson mocks those who rightfully expose clerks who fail to properly appoint election inspectors with equal representation from both major political parties. In a flimsy justification of the practice, Secretary Benson asserts the following at the state website: 

 “Although it can be difficult to recruit Republican challengers in Detroit – just as it is difficult to recruit Democratic challengers elsewhere in the state – there were always challengers from both parties in Detroit’s absentee ballot counting board.” https://www.michigan.gov/sos/0,4670,7-127-1633_100423_102534_102535—,00.html

Her mockery amounts to an attempt to parse words and mislead on several fronts. First, she uses the word ‘challengers,’ probably because she knows that election challengers are exclusively voluntary positions and not required for an election to be valid. She fails to use the more accurate term, ‘election inspectors’, perhaps because they are required participants in an election, and the law stipulates they are to be appointed with equal numbers of representatives from both major political parties. 

Additionally, Benson seems to mislead by using the qualifier “in Detroit.” The suggestion here is that Democrat dominated Detroit has so few Republicans that it is impossible to find roughly one thousand of this endangered species to work as election inspectors. She knows, or should know, that election inspectors that serve in Detroit can come from any other community in the county or state. She makes excuses for violations of law from senior election officials instead of investigating credible claims (that she acknowledges), and fails to provide evidence of wrongdoing to law enforcement and prosecutors.

Clerks are required to provide lists of election inspector assignments to the county chairs of each major political party. Although this does not relieve the clerk from adherence to other provisions of law, it gives the political parties the option to assist the clerk. It is unclear if the Detroit clerk (or others) fulfilled this reporting requirement. This information was subpoenaed by the Legislature following the 03Nov2020 election but was not specifically mentioned in the related Senate Oversight Committee Report.

The key statutory requirements for assignment of election inspectors are ‘watered down’ as presented in election manuals. Election laws are instituted so that the electorate has confidence that an election legitimately represents the aggregated will of the people. Ideally, elections would be staffed by purely non-political officers who faithfully follow all laws. On its face, this lofty strategy would not work for the simple reason that citizens do not need to forfeit their rights of political affiliation to participate in election operations. The current law provides a much better solution. It recognizes conflicting party goals, if unconstrained, may lead to violation of election laws to favor a particular outcome, either intentionally or otherwise. Mandated equal representation of both major political parties in the ranks of election officials provides the balance necessary to give the best chance for election law violations to be recognized and immediately corrected, and if not corrected, then reported.

Statutes specify that equal numbers of election inspectors are required to participate in the conduct of election, while still allowing other political affiliations and non-affiliated individuals to participate. The clause “as nearly as possible” in the critical phrase “shall appoint an equal number, as nearly as possible, of election inspectors in each election precinct from each major political party” does not provide license to ignore the “equal number” requirement. The clause “as nearly as possible” is required in acknowledgment that some precincts will have odd numbers of election inspectors, for which it is physically impossible to have equal whole number participants. There is no acceptable excuse for any experienced clerk to violate these mandatory instructions.

Recommendations: PIME suggestions strengthening the statutes so that they are less likely to be diluted or misconstrued. We recommend passing a simple, self-standing bill, that changes one word from may to shall in the MICHIGAN ELECTION LAW (EXCERPT), Act 116 of 1954, 168.674. Precinct election inspector; appointment; chairperson; political party membership; challenge; vacancies.

MCL 168.674(2a):

 “…The board of election commissioners shall appoint at least 1 election inspector from each major political party and shall appoint an equal number, as nearly as possible, of election inspectors in each election precinct from each major political party…”

and

AMEND MCL 168.674: Election officials will report regarding the appointment of an equal number of election inspectors and challengers as selected from lists provided in a timely manner by each major political party and as hired by the clerks.

 “…Not later than 2 business days following the appointment of election inspectors under subsection (1) for elections in which a federal or state office appears, the board of election commissioners shall notify by certified mail, personal service, or electronic transmission capable of determining date of receipt the county chair of each major political party of the names and political party affiliations of appointed election inspectors and the precincts to which those inspectors were appointed…”

This additional statute applies to counting board pre-processing requirements. It states that at any ballot processing locations, one election inspector from each major political party must always be present. This is an additional requirement, not a replacement for the equal number of representation from political parties in the assignment of election inspectors.

MCL 168.675(6):

 “…Election inspectors may be appointed by the board of election commissioners under this subsection before written notice is provided to the secretary of state under this subsection. Sections 673a and 674 apply to the appointment of election inspectors under this subsection. All requirements for election inspectors appointed to an absent voter counting board under section 765a apply to election inspectors appointed under this subsection. At all times, at least 1 election inspector from each major political party must be present at the location…”

The statutory requirements are incompletely stated in the election manual guidelines for in-person precincts election inspector assignments. The statute language is softened from the requirement of “an equal number, as near as possible” to the much more ambiguous “politically balance each precinct board.” The net result is that those who understand and wish to dutifully follow the intent and letter of the law will do so. In contrast, those who seek to bend the rules and abuse loose verbiage in the election manual for nefarious purposes will do so too. The screenshot below comes from the Election Official’s Manual, Bureau of Elections, Chapter 13, Update February 2019, (XIII_Appointing_and_Training_Election_Inspectors_266018_7.PDF), page 1:

Some clerks transparently reference the statutory requirements in their applications for election inspectors, and others do not. The screenshots below are available at the following websites for Northville City and Detroit City:

https://p1cdn4static.civiclive.com/UserFiles/Servers/Server_11895878/File/Services/CityClerk/Elections/Election%20Inspector%20Information%20Sheet%20-%20website%20version.pdf

https://detroitmi.gov/sites/detroitmi.localhost/files/forms/2020-09/%281%29%20POLL%20WORKER%20APPLICATION-2020.pdf

Unfortunately, the election manuals for absent voter counting boards only make passing or more arbitrary references to critical statutes with specific requirements. To add to the risk of misinterpretation, the only statutory requirement emphasized is that which states one election inspector from each major political party must always remain present in the counting board location. This is an additional requirement, not a substitute for the requirement that appointments be made in “an equal number, as near as possible”. These screenshots are from Election Official’s Manual, Michigan Bureau of Elections, Chapter 8, Update October 2020, (VIII_Absent_Voter_County_Boards_265998_7.pdf), Page 9:

Page 10:

Page 11:

When the numbers of appointed election inspectors from each major political party are grossly unequal, as they were in Detroit, one has to be at least a little curious that some part of elections results might have been tainted. The law seems to provide flexibility to avoid prosecution of clerks for misfeasance or malfeasance due to common circumstances (i.e., slightly unequal party representation due to sicknesses – especially in a pandemic). However, gross disregard for statutory safeguards should not be shrugged off – especially when common arguments include: It has been this way for years, or when senior election officials repeatedly and confidently assert that all legal requirements were observed. As previously explained, of the 1641 election inspectors at the Detroit TCF Center, only 48 appointees were Republican, and 863 appointees were Democrat affiliated. To make matters worse, there were 298 additional staff positions (i.e. team leaders, supervisors, coordinators, medical personnel), of which only 1 was listed as a Republican. (Statistics calculated from the Detroit TCF Center election worker manifest reportedly obtained by a FOIA request at: https://letsfixstufforg-my.sharepoint.com/personal/patrick_letsfixstuff_org/_layouts/15/onedrive.aspx?id=%2Fpersonal%2Fpatrick%5Fletsfixstuff%5Forg%2FDocuments%2FFiles%2F2020%20Election%2FEvidence%2FE%2D3%20Detroit%20Poll%20Worker%20Party%20Affiliations%2Epdf&parent=%2Fpersonal%2Fpatrick%5Fletsfixstuff%5Forg%2FDocuments%2FFiles%2F2020%20Election%2FEvidence.

Election inspectors are the front line of defense against election fraud. How can one reasonably expect adherence to all laws when nearly every ‘guard’ is on the same political ‘team,’ and a small fraction are enticed to ‘bend the rules’ due to lax statute language, inaccurate training manuals, blatant bias, and near-absent enforcement of law? In this environment, if there are never any consequences, more rules will be bent or completely ignored with each passing year. There is a reason why a game for a team sport is considered fair and proper only when there are equal numbers from each team on the field and when impartial referees enforce the rules under the close scrutiny of fans.

THIS IS NOT A COMPLETE LIST. CONSIDER RESPONSIBILITIES OF ELECTION INSPECTORS

There are numerous other examples in which instructions in election manuals can be shown to be incorrect, ambiguous, or incomplete when compared to statute language. The cases outlined above represent, perhaps, the most egregious discrepancies to written statute that could have, and probably did, affect election outcomes. The law, as written, must be faithfully observed and enforced. 

One additional example bears note as it sheds light on the importance of a ‘net neutral’ political presence at all ballot polling and processing locations.

Election manuals outline several crimes that may be committed in the conduct of elections. These are related to infractions that are specifically outlined across many statutes. Some are felonies; many others are misdemeanors. Related to these crimes, the statutory responsibilities of law enforcement and prosecutors are (correctly) referenced. The following is an excerpt from the election manual “Election Law Crimes” dated October 19, 2020 (Actionable_Election_Day_Offenses_472371_7.pdf) at https://www.michigan.gov/documents/sos/Actionable_Election_Day_Offenses_472371_7.pdf, Page 1-2:

More infractions are listed in the following pages, including violations of relevant federal election law statutes. However, there is no mention of the related statutory responsibilities of election inspectors who have knowledge of any election law violations. Below is the oath taken by all election officials, followed by critical statutes outlining the scope of their responsibilities:

MCL 168.680 Outlines the oath taken by election inspectors

“…Each precinct election inspector shall, before entering upon the discharge of his duties, take and subscribe the following constitutional oath of office, which oath any of the inspectors may administer: “I do solemnly swear (or affirm) that I will support the constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of inspector of elections according to the bestof my ability.”…”

MCL 168.939 instructs election inspectors to report ‘punishable’ offenses of the election laws:

“…It shall be the duty of every inspector of election, knowing, or having reason to believe, that an offense punishable under the provisions of this act has been committed, to give information thereof to the prosecuting attorney without delay, and such prosecuting attorney shall adopt effective measures for the prosecution of all persons believed to be guilty of such offense…”

MCL 168.940 instructs prosecuting attorneys to pursue offenses suggested by credible information:

“…It is hereby made the duty of every prosecuting attorney, whenever he shall receive credible information that any such offense has been committed, to cause the same to be prosecuted…”

MCL 168.941 instructs law enforcement aware of any election law violations to pursue criminal proceedings:

“…It is hereby made the duty of any police, sheriff or other peace officer, present and having knowledge of any violation of any of the provisions of this act, to forthwith institute criminal proceedings for the punishment of such offender…”

MCL 168.942 outlines that violation of election laws may be prosecuted for 3 years after the offense(s):

“…An offense under this act shall not be prosecuted unless the prosecution is commenced within 3 years after the time the offense is discovered. The complaining witness or any other person who is called to testify in behalf of the people in a proceeding under this section shall not be liable to criminal prosecution under this act for an offense in respect to which he or she is examined or to which his or her testimony relates, except to prosecution for perjury committed in the testimony…”

The key point is that election inspectors have the responsibility to report any violations of election law they have “reason to believe” occurred. The statute does not stipulate that the election inspector must directly witness a violation, but it must be a “punishable” offense of election laws. For a while, my ignorance led me to believe that ‘punishable’ implied ‘felony’, or at the very least required a specific mention in statute. However, further review of the election laws revealed there is a much more broad definition, per statute:

MCL 168.931(2) states all violations of election laws with unspecified penalties are in face misdemeanors:

 “A person who violates a provision of this act for which a penalty is not otherwise specifically provided in this act, is guilty of a misdemeanor….”

MCL 168.934 establishes misdemeanor election law violations as punishable offenses:

 “Any person who shall be found guilty of a misdemeanor under the provisions of this act shall, unless herein otherwise provided, be punished by a fine of not exceeding $500.00, or by imprisonment in the county jail for a term not exceeding 90 days, or both such fine and imprisonment in the discretion of the court….”

Election inspectors take an oath, and this oath obligates them to report all election law violations that they have “reason to believe” were committed. Of course, if one is not aware of this obligation or of the full set of possible election law violations, there is no abrogation of duty. 

Recommendation: The full extent of election worker obligations should be emphasized as part of their training.

Furthermore, it is a violation of election law to provide election conduct and training materials that are contrary to statutory requirements.

MCL 168.31(1) outlines authorities and responsibilities of the secretary of state:

 “The secretary of state shall do all of the following: 

(a) Subject to subsection (2), issue instructions and promulgate rules pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, for the conduct of elections and registrations in accordance with the laws of this state.

(b) Advise and direct local election officials as to the proper methods of conducting elections.

(c) Publish and furnish for the use in each election precinct before each state primary and election a manual of instructions that includes specific instructions on assisting voters in casting their ballots, directions on the location of voting stations in polling places, procedures and forms for processing challenges, and procedures on prohibiting campaigning in the polling places as prescribed in this act….” 

“(h) Investigate, or cause to be investigated by local authorities, the administration of election laws, and report violations of the election laws and regulations to the attorney general or prosecuting attorney, or both, for prosecution….”

MCL 168.765a(13) specifies that instructions for counting boards must be lawful:

 “The secretary of state shall develop instructions consistent with this act for the conduct of absent voter counting boards or combined absent voter counting boards. The secretary of state shall distribute the instructions developed under this subsection to county, city, and township clerks….”

MCL 168.931(1) makes it clear willful violation of election law by an election official is a misdemeanor:

 “A person who violates 1 or more of the following subdivisions is guilty of a misdemeanor:

…(h) A person shall not willfully fail to perform a duty imposed upon that person by this act, or disobey a lawful instruction or order of the secretary of state as chief state election officer or of a board of county election commissioners, board of city election commissioners, or board of inspectors of election. …”

It is unfortunate that Senator McBroom was not an ‘oathed’ election inspector for the 03Nov2020 election. The report covering his committee’s investigation into the election fully acknowledges that election law infractions were committed. If he were an election inspector, and particularly because of his familiarity with election law, his oath would require his action to detail such instances to prosecutors. Below is a quote from “Report on the November 2020 Election in Michigan”(SMPO_2020ElectionReport_2.pdf) at https://misenategopcdn.s3.us-east-1.amazonaws.com/99/doccuments/20210623/SMPO_2020ElectionReport_2.pdf

Page 35:

Recommendation: Even if the unlawful guidance and related adherence have been common practice for many years—even if these errors are perceived in general as harmless—each violation must be reported and resolved. It is dangerous to perpetuate inappropriate instructions as they are prone to grow exponentially. Plus, unlawful guidance exposes diligent election officials to unknowingly commit punishable violations of election law.

Earlier this year, much of this information was provided to several legislators, including Senator McBroom, in perhaps less developed arguments. It is possible the information never made it to the addressees’ eyes. Had the reported alerts been received and acted upon, perhaps a preventive and comprehensive audit of election materials might have averted what is now perceived as a pressing need for reform and 2020 forensic audit. 

Recommendation: Given the deeply concerning risk of inclusion of invalid ballots in the ballot pool, one cannot conclude with certainty that the 2020 election results truly represent the legitimate will of legitimate voters. PIME recommends a 2020 forensic audit and independent forensic audits after each future election. 

If the Legislature were to conduct a properly targeted audit and find the number of potentially fraudulent ballots were inconsequential for all impacted races, then we could simply move forward with a good account of how many ballots were tainted by unlawful means. This would conclusively put a number on how important it is to observe and enforce election laws. If, however, the numbers indicate error margins material in one or more races, next steps might be considerably more consequential.

Directing my concerns to elected representatives only satisfies my (Article 1 Section 3) constitutional duty as a citizen to “instruct their representatives.” I have more recently come to realize that as an ‘oathed’ election inspector, I am further obligated to formally report this information to prosecutors. I am preparing documents to fulfill my oath. With my current understanding of the election laws, I realize it is somewhat hypocritical of me to complain about others violating their oath of office, while I may not be in full compliance with my own.

Respectfully,

Louis Avallone

Milford, Michigan

Published by pureintegrityformichiganelections

Dedicated to restoring election integrity in Michigan.

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