Judge rules Benson's ballot signature verification guidance 'invalid'

State Court of Claims Judge Christopher Murray has ruled invalid Secretary of State Jocelyn Benson's guidance issued to Michigan clerks in early October that instructed them to presume the accuracy of absentee ballot signatures.

Because Benson did not go through the proper rule-making process when issuing the guidance, clerks do not need to comply with it for future elections, Murray ruled last week.

"The presumption is found nowhere in state law," wrote Murray, an appointee of Republican former Gov. John Engler. "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."

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The office of Benson, a Detroit Democrat, declined comment on the decision.

The Michigan Republican Party, one of the plaintiffs in the suit, celebrated the decision but noted it came too late to make a difference in the November 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 GOP. 

Michigan law requires clerks to match required signatures on absentee ballot applications and absentee ballot envelopes with the voter signature on file to ensure the person submitting the ballot is the same one registered to vote in Michigan. 

But state law doesn't define what it means for signatures to "agree sufficiently."

Benson on Oct. 6 instructed clerks who were matching signatures that they "must perform" their duties under the "presumption" that the signature is valid and uphold the signature's validity if there were "more matching features than nonmatching features." Whenever possible, clerks and election officials were instructed to resolve slight differences "in favor of finding that the voter's signature was valid," Murray wrote.

Allegan County Clerk Robert Genetski and the Michigan Republican Party filed a complaint the same day and amended it Dec. 30 to argue the directive was unlawful. But Genetski did not allege that Benson's directive "caused him to accept a signature that he believed was invalid," according to Murray's decision.

The judge didn't rule on whether Benson's directive violated state election law, but did say the directive violated the Administrative Procedures Act, the process that must be followed when an agency creates new rules. 

"....Nowhere in the 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," 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 wrote.

The Administrative Procedures Act requires state agencies that are developing a rule to better implement state law to go through months of public notices, drafts, impact analyses, public comment and public hearings. 

When a final version of the rule is complete, it is submitted to the Legislature's bipartisan Joint Committee on Administrative Rules. The committee has 15 session days to take action on the rules before they are finalized and filed with the secretary of state. 

Murray rejected a request for additional audits to look at the effect the directive had on the November election.

The Michigan Constitution only speaks to "election results," not to the process by which signatures are matched, and the Constitution leaves the manner by which an audit is conducted to the secretary of state.

"There is no support in the statute for plaintiffs to demand that an audit cover the subject of their choosing or to dictate the manner in which an audit is conducted," Murray wrote. 

Rep. Matt Hall, R-Marshall, praised the court's decision, calling Benson's directives "clear violations of her authority."

"If she 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," Hall said. 

eleblanc@detroitnews.com