A Michigan judge went a long way to validating one of the key claims made by the Trump campaign’s post-election legal challenges when he ruled last week that a state official broke the law by unilaterally changing regulations regarding mail-in voting.
According to Breitbart, Michigan Court of Claims Chief Judge Christopher Murray ruled Democrat Michigan Secretary of State Jocelyn Benson broke the state’s Administrative Procedures Act when she issued “guidance” regarding how absentee ballots were to be evaluated “because the guidance issued by the Secretary of State on October 6, 2020, with respect to signature matching standards was issued in violation of the Administrative Procedures Act (APA).”
As the Detroit News noted, “[t]he 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.” Benson did none of this, of course.
Breitbart reported that Benson’s “guidance” said “slight similarities” between the signatures on the absentee ballot were enough for a vote counter to rule “in favor of finding that the voter’s signature was valid.”
The examples cited in the ruling were a bit more eyebrow-raising than that, however, and make Benson’s “guidance” more of an order mandating virtually all ballots be counted — regardless of their actual signature qualifications.
For instance, Benson’s guidance said that signature review “begins with the presumption that” the signatures are valid, either in regards to the application or the ballot envelope.
“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. (Underlining in the original.),” Murray wrote.
“’Redeeming qualities’ are described as including, but not being limited to, ‘similar distinctive flourishes,’ and ‘more matching features than nonmatching features,’” Murray noted.
“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 presumption is found nowhere in state law,” Murray wrote in his decision.
“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.”
Murray also said this was an issue for the legislature, not for a single government official or department.
In the ruling, he found that “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 as compared with the signature on file. Policy determinations like the one at issue — which places the thumb on the scale in favor of a signature’s validity — should be made pursuant to properly promulgated rules under the [Administrative Procedures Act] or by the Legislature.”
The suit was initially filed by Allegan County Clerk Bob Genetski, who argued, according to Breitbart, that Benson’s “guidance” on mail-in ballots was little more than a “mandatory directive requiring local election officials to apply a presumption of validity to all signatures on absent voter ballots.”
According to the Detroit News, the Michigan GOP hailed the ruling while noting it came far too late to make any substantive difference.
“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, Michigan GOP communications director, the newspaper reported.
Benson’s October guidance came after she used $4.5 million in COVID-19 stimulus money to mail absentee ballot applications to every registered Michigan voter, starting in May, according to Breitbart.
“By mailing applications, we have ensured that no Michigander has to choose between their health and their right to vote,” Benson said in a statement at the time, according to CBS News.
As The New York Times reported, while the Democratic primary in the state was largely meaningless given Joe Biden’s lead at the time over Bernie Sanders — both in terms of delegates and polls in the states — a key seat on the state Supreme Court was on the ballot and “[l]ong lines were seen in cities like Milwaukee, which had only five polling places open.”
In August, according to Just the News, Dr. Anthony Fauci, the country’s foremost authority on pandemic practics, also said in-person voting could be done safely.
“I think, if carefully done, according to the guidelines, there’s no reason that I can see why that not be the case,” he said.
This may sound like a digression, but it’s not. Relatively early in the process, conservatives in general and the Trump campaign specifically argued that mass mail-in voting was unnecessary and open to irregularities — problems that were exacerbated by states ignoring their own laws, purportedly in the name of the exigencies of COVID-19.
That basic set of facts got obscured in the wake of the election for reasons that don’t need recapitulating, else we’ll be here all morning and end with migraines. Suffice it to say, however, that the left took the opportunity to delegitimize every qualm about how the 2020 election was conducted.
Meanwhile, in almost the same breath, liberals pronounced the rules of the 2020 vote — which were only supposed to be in place as a stopgap procedure because of the pandemic — worked so superbly we should really do this every election: “This is great!” every Democrat seemed to say. “Maybe we can even loosen the rules a bit? Unless, of course, you want to be undemocratic.”
It’ll take more than one bucket of cold water to put an end to this kind of thinking, but Murray’s ruling was some pretty frigid water indeed.
First, it proved one of the Trump team’s key contentions: States violated their own laws so that election rules were more to their liking. Furthermore, you could, almost without fail, guess the party affiliation of the state official or officials who treated black-letter laws as merely suggestions.
Second, Benson’s guidance — which set as low of a bar as you can get in terms of signature-matching — is an augury of what mail-in voting will look like, particularly when politicized.
Do you think rulings like this will help protect future elections?
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I don’t think I need to underline the potential issues with clerks who are told that if there are “any redeeming qualities in the [absent voter] application or return envelope signature as compared to the signature on file, [to] treat the signature as valid.”
The Michigan GOP is right. Murray’s ruling arrived too late to make any difference in the 2020 election. And by itself, it would likely not have affected the outcome of the election. The official count in Michigan gave victory to the Biden campaign by 150,000 votes.
However, it should, one hopes, make a difference in future elections. As much as the Democrats want to pretend otherwise, 2020 was a slapdash (and, in some cases, illegal) process of upending the entire election system in which voting rules were politicized under the pretext of COVID-19.
At least in this case, Judge Murray’s ruling made that all too clear.
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