Michigan Attorney General Dana Nessel last Friday declared the Michigan Constitution does not authorize the Office of Auditor General (OAG) to conduct a post-election audit of Michigan’s county clerks. Opinion #7316 determines that while OAG may subject the Michigan Bureau of Elections (BOE) to a performance audit concerning the Bureau’s procedures for conducting post-election audits, that authority does not extend beyond the Bureau to local jurisdictions’ election processes.
Last month, Secretary of State Jocelyn Benson made a formal request for an Attorney General Opinion noting that while BOE “has no objection to OAG reviewing the Bureau’s own procedures, including post-election auditing procedures, the OAG’s apparent intent to re-conduct actual precinct procedural audits carried out by county and local election officials, appears to conflict with federal retention requirements following federal elections and poses additional legal and logistical questions under state law.”
Benson’s request focused on two questions based on OAG’s notified intent of a post-election audit:
1. Does OAG physically handling records while conducting the audit violate federal record retention laws by removing ultimate management authority and physical retention of the records from election officials?
2. Does OAG have authority to request and review local records outside of the issuance of a subpoena or other request for records?
Nessel’s opinion finds, in part, that “while the Auditor General is a constitutional officer and member of the legislative branch of government, Const 1963, art 4, § 53, he is not a state or local election official or an ‘officer of election’ as that term is defined in 52 USC 20706. The federal statute speaks only of the U.S. Attorney General as being able to demand access to protected election records. 52 USC 20703. And as discussed in OAG No. 6970 and OAG No. 7158, the Auditor General is not entitled to access or demand local government records through the state agency being audited, here the Bureau. Thus, the Auditor General has no right or authority to access local election records for purposes of conducting an audit of a state agency in a manner that would be inconsistent with or potentially violate federal law, thereby placing himself, his staff, or local election officials at risk of prosecution or other action.”
“While I respect the governmental function of the Michigan Office of Auditor General, its authority simply does not extend beyond performance audits and post audits of financial transactions and accounts related to state entities,” Nessel said. “OAG does not have a constitutional right to demand or compel access to local government records, including election ballots and voting equipment. As the chief law enforcement officer of this state, it is my duty to protect our free and fair elections and that includes protecting the machinery and documents that keep our democracy running.”
The opinion also points out that Benson, as the state’s chief elections officer, may exercise supervisory authority over local elections officials in two ways in response to requests from OAG:
1. By issuing directions for the review of such records in order to protect the physical integrity and security of the records consistent with state and federal law.
2. By issuing directions that access to voting equipment should not be permitted in order to protect the physical integrity and security of the equipment consistent with state and federal law.
The full opinion from Nessel can be read on the department’s website at www.michigan.gov/ag.
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