In the aftermath of the 2020 election, former President Donald Trump and many of his Republican supporters raised allegations of widespread ballot fraud and voting irregularities, a big part of which were last-minute changes to state election rules made by executive branch officials instead of state legislatures.
While Trump’s legal challenges were essentially dismissed or ignored, he has now seemingly been vindicated by a Michigan judge who decided that a late rule change regarding absentee ballot signature matches made by the secretary of state was “invalid,” according to the Washington Examiner.
Presumption of validity
At issue in the lawsuit filed jointly by a county clerk and the Michigan Republican Party was “guidance” issued in October 2020 by Michigan Secretary of State Jocelyn Benson that instructed all county clerks to automatically presume the validity of signatures on an absentee ballot application or absentee ballot return envelope during the signature matching process.
That presumption of validity was made mandatory by Benson even when there were “slight differences” between the absentee ballot signatures when compared with an on-file signature in the voter rolls — ballots were to be accepted if there were any “redeeming qualities” between signatures — and ballots were to only be further scrutinized and potentially rejected if there were “multiple, significant, and obvious” discrepancies, Michigan’s MLive reported.
However, while Benson claimed that her mandatory instructions were mere “guidance” for clerks to follow, the plaintiffs argued that it actually constituted a formal “rule” change, an argument with which the judge agreed — and since Benson hadn’t followed the proper procedures for changing the rules, that change was deemed to be invalid and unlawful.
“The ‘rule’ is invalid”
In a 16-page ruling, Republican-appointed Court of Claims Judge Christopher Murray ruled that “the challenged signature-matching standards were issued in violation of the Administrative Procedures Act.”
“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,” Judge Murray wrote.
“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,” he added.
“In sum, 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,” Murray concluded. “And absent compliance with the APA, the ‘rule’ is invalid.”
Benson skipped the process
The Detroit News reported that in order for the new “rule” to be compliant with Michigan’s APA, Benson would have needed to engage in a lengthy, months-long process that includes providing public notice, submitting drafts, analyzing the rule’s impact, receiving public comments, and holding public hearings. After all of that, the new rule would still need to be submitted to the legislature’s Joint Committee on Administrative Rules for final approval.
Obviously, that didn’t happen, and while this judge’s ruling is far too late to be retroactively applied to the 2020 election, state Republicans are pleased that it will no longer be an issue going forward in future elections.
Ted Goodman, communications director for the Michigan GOP, told The Detroit News: “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.”