MI Judge Shuts Down Lax Ballot Signature Guidance For Good

A Michigan Court of Claims judge ruled Secretary of State Jocelyn Benson’s guidance on absentee ballot signature verification violated the state’s constitution and ordered it removed in a final order signed on Tuesday. 

In the ruling, Judge Christopher P. Yates, an appointee of Gov. Gretchen Whitmer, reiterated that Benson’s “’initial presumption’ of validity in signature verification of absentee-ballot applications and envelopes mandated by the December 2023 guidance manual issued by defendants is incompatible with the Constitution and laws of the State of Michigan.” 

Benson, the defendant in the case, issued a December 2023 manual instructing clerks in more than a thousand municipal and township jurisdictions that “[v]oter signatures are entitled to an initial presumption of validity.”

Benson’s lawyers tried to argue the validity presumption was not prescribed, just a more modest “initial” presumption.

Yates didn’t buy it. In his June 12 ruling granting declaratory relief, he wrote: “With apologies to Gertrude Stein, however, a presumption is a presumption is a presumption. Whether the guidance manual includes a gentle nudge instead of a hip check, it’s still a foul under Michigan law.” 

Sufficiently chastised, the secretary of state’s office took steps to comply, so that by the time of the hearing on the final and official order, the offending language had already been removed from the clerks’ guidance manual. 

But damage from Benson’s guidance had already been done. The initial presumption guidance was in place for the February 2024 presidential primary where Michigan clerks had to verify signatures on 1.4 million absentee ballot applications and at least 934,000 return ballot envelopes. 

The Republican National Committee and the Michigan Republican Party filed suit against Secretary of State Benson and Jonathan Brater, Michigan’s Director of Elections, in April. 

At Monday’s hearing, RNC attorney Robert L. Avers verified that the “initial presumption of validity” language had been removed from the guidance manual. But he questioned whether clerks had been notified. He pointed out what is at stake, telling Judge Yates, “The presumption [of signature validity] was applied during the presidential primary in February, and so this is a change and it’s an important one. … Time is of the essence here, right? And that goes to the communication too. I mean, there’s clerks reviewing signatures right now.” 

Assistant Attorney General Erik Grill claimed a notice to clerks about the change had been sent the prior week, but he could not provide the date of the communication. 

“Can you send that to Mr. Avers and me?” Yates said, finally adding, “I just need to see it.” 

I obtained a copy of a memo from a Michigan township clerk that could be the communication to which Grill alluded. 

Addressed to “Clerks and Election Directors,” the memo alluded to a variety of changes to the manual; then, three paragraphs in, it told election officials:

 Additionally, an updated signature matching guidelines document has been posted in the eLearning Center. The document has been updated to remove the language in the guidance describing the signature review process as beginning with an initial assumption of validity. The specific language removed is below:

Voter signatures are entitled to an initial presumption of validity. An initial presumption of validity does not mean that all signatures are “presumed valid” without further review.

This language has been removed under the court’s opinion in Republican Nat’l Comm v Benson, opinion and order issued June 12, 2024.

In a statement, RNC Election Integrity Communications Director Claire Zunk confirmed all clerks have been notified. 

She went on to explain the lawsuit’s significance: “Signature verification is a critical mail ballot safeguard to ensure ballots are cast and counted properly. Secretary Benson issued unlawful instructions — twice — while claiming Michigan’s elections are transparent and secure. The RNC’s legal efforts have secured this final ruling in a major victory in Michigan to protect election integrity.”

With only six days remaining until the primary, this important matter is finally resolved. On July 10, the state of Michigan reported it had received 1.5 million applications for an absentee ballot. It is impossible to know how many of those application signatures were waved through under Benson’s unconstitutional “guidance.” 

Kristine Christlieb is a senior correspondent for Michigan Fair Elections.