The litigation over the 2020 election seem to be continuing with a ruling this week from Michigan Court of Claims Chief Judge Christopher Murray that Secretary of State Jocelyn Benson (D) broke state law in issuing new rules on absentee balloting before the 2020 election. The orders concerned instructions on what constitutes a “match” for verification signatures — a core issue raised by the Trump campaign in its election challenges. There is no evidence that the violation of state law altered the outcome of the election in the state and the court declined to order a new audit. However, the court found that Murray should not have issued the orders and, in doing so, violated the state’s Administrative Procedures Act.
Benson ordered that clerks follow a highly deferential standard in favor of the voter and verification. The court explained:
The stated purpose of the at-issue document was to “provide[ ] standards” for reviewing signatures, verifying signatures, and curing missing or mismatched signatures. Under a heading entitled “Procedures for Signature Verification,” the document stated that signature review “begins with the presumption that” the signature on an absent voter ballot application or envelope is valid. Further, the form instructs clerks to, if there are “any redeeming qualities in the [absent voter]application or return envelope signature as compared to the signature on file, treat the signature as valid.” (Emphasis in original). “Redeeming qualities” are described as including, but not being limited to, “similar distinctive flourishes,” and “more matching features than nonmatching features.” Signatures “should be considered questionable” the guidance explained, only if they differ “in multiple, significant and obvious respects from the signature on file.” (Emphasis in original). “[W]henever possible,” election officials were to resolve “[s]light dissimilarities” in favor of finding that the voter’s signature was valid.
The section on signature-verification procedures goes on to repeat the notion that “clerks should presume that a voter’s [absent voter] application or envelope signature is his or her genuine signature, as there are several acceptable reasons that may cause an apparent mismatch.”
The court found that the orders on the signature-matching requirements amounted to a “rule” and thus should have followed the requirements under the APA.
Murray states that “The presumption is found nowhere in state law. 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.”
Trump campaign lawyers argued that state officials were usurping legislative authority in issuing such guidelines or rule changes before the election. This is a ruling supporting those objections. However, the problem has been the nexus between such irregularities or unlawful orders and any determinative impact on the outcome. The court noted that Genetski did not allege that Benson’s directive “caused him to accept a signature that he believed was invalid.”
While celebrating the finding of unlawfulness, Trump supporters are frustrated with the failure to order additional discovery to establish such impacts. However, Murray noted that
“while the statute allows for an audit that includes ‘reviewing the documents, ballots, and procedures’ used in the election, the statute plainly leaves it to the Secretary of State to ‘prescribe the procedures for election audits’ and mandates that the Secretary of State shall conduct audits ‘as set forth in the prescribed procedures.’ In other words, 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.”
That will not sit well with many since it was the Secretary of State who violated the state law in the first place. This would mean that she could violate the law and then dictate how that violation is investigated.
Allegan County Clerk Robert Genetski and the Michigan Republican Party filed a complaint the same day that the order was issued, but the delay prevented the ruling from being cited in the ongoing challenges before the certification.
The result is a victory but not in the form of substantive relief of an audit on how these matching rules were applied.
Here is the opinion: Genetski v. Benson, No. 20-216-MM in the Court of Claims for the State of Michigan