By Ben Solis
Gongwer News Service
A Court of Claims judge last Friday ordered Michigan Secretary of State Jocelyn Benson to amend one sentence in the 2024 election guidance after the Republican National Committee and the Michigan Republican Party alleged the document conflicted with state statute.
Court of Claims Chief Judge Brock Swartzle in an opinion for RNC v. Benson (COC Docket No. 24-000148) ordered the secretary of state to revise a sentence of the manual distributed to clerks and election workers. The order was not final and did not close the case.
Swartzle’s order also split the difference for the parties in the case, denying many of Benson’s motions for summary disposition but granting in part a motion for summary disposition related to her objection of the case continuing on an affirmative defense of laches. Swartzle mostly granted in part various motions for summary disposition filed by the plaintiffs.
The lawsuit alleged that the state wasn’t doing enough to enforce an absent voter ballot number matching requirement. It further claimed Benson’s election guidance to clerks instructs them and election inspectors to process and tabulate absent voter ballots where the stub is missing or the number does not match the number in the pollbook, or on the ballot return envelope. The RNC contends that the instructions tell them to mark those ballots as “challenged” rather than rejected, as required by Michigan law.
The case was admittedly wonky, and the opening paragraphs of Swartzle’s opinion were no less technical, reading like an algebraic word problem. He also quoted William Shakespeare and the Book of Genesis.
“As sure ‘as the night the day,’ when there is an instance of X, there will be an instance of not X. Thus, as a matter of course, when one reads a statement in the form of if X, then Y, one expects that the statement immediately following will be in the form of if not X, then __,” Swartzle wrote. “When the latter statement goes missing, however, one might read the omission as implying the answer (i.e., if not X, then logically not Y); as an oversight by the author permitting someone else to provide the answer (i.e., I declare: if not X, then Z); or as an invitation to the reader to look elsewhere to infer the answer (i.e., based on everything related, it seems clear: if not X, then J).”
He did so to illustrate recent amendments to Election Law where Swartzle said the Legislature “defied the reader’s expectation by adding the if X, then Y statement, but then omitting the related if not X, then __ statement.”
“Specifically, our Legislature amended MCL 168.768 in February of this year to state that, if the number printed on an absent voter’s ballot stub agrees with the number printed on the return envelope, then the ballot must be tabulated,” Swartzle wrote. “As to what happens when the numbers do not agree – when there is a ‘mismatch’ of the numbers or a missing stub – our Legislature was silent.”
Referencing the case at hand, Swartzle said the RNC argued the Legislature’s silence on the matter was “deafening” but that state statute “makes clear that a mismatched absent-voter ballot or an absent-voter ballot with a missing stub must be rejected and the affected voters – the absent voter to whom the ballot was issued and the absent voter to whom the return envelope was issued – must be given an opportunity to cure.”
Benson and Elections Director Jonathan Brater responded by arguing the Legislature’s silence should be understood as an oversight or statutory gap and that Benson had clear legal authority to provide a definitive answer.
Swartzle last Friday ruled that “whether one side is fully right, or whether each side partially hits and partially misses the mark, is not immediately clear on this nascent record, the case being precisely two weeks old.”
What was clear, Swartzle wrote, was that the plaintiffs have standing; the plaintiffs have satisfied the one-year notice requirement under the Court of Claims Act; the plaintiffs were entitled to partial declaratory and injunctive relief; there remains complex questions of law and fact on whether to treat absent-voter ballots that are mismatched or missing a stub as rejected, challenged, or something else; and that the defendants were entitled to partial relief under the affirmative defense of laches.
Of the changes he ordered to the election manual, Swartzle said a sentence on Page 7 of the text – “Without exposing any votes, the election inspector should verify that the number on the ballot stub agrees with the ballot recorded for the voter in the QVF Absent Voter list” – should be revised as follows: “Without exposing any votes, the election inspector must verify that the number on the ballot stub agrees with the ballot number on the face of the absent voter return envelope.”
Swartzle also wrote that, for the sake of clarity, Benson and Brater can continue, as an additional step, with “the current practice that the ballot stub number should be compared with the ballot number recorded in the QVF Absent Voter List, but, at a minimum, the manual must be revised to reflect the statutory requirement that the ballot stub number must be compared to the number on the return envelope.”
The defendants were ordered to promptly post and distribute the updated manual to the appropriate offices prior to the tabulation of any absentee voter ballots for the November 5 general election.
MDOS spokesperson Angela Benander told Gongwer News Service that the department was pleased that the court rejected the RNC’s “11th hour request to disenfranchise absentee voters.”
“Since at least 1996, under both Democratic and Republican Secretaries of state, election workers have followed the same practice for absentee ballots where the voter’s signature has been verified, but there is a mismatch in the ballot stub number to the ballot number on file, which can be because of an administrative error,” Benander said. “These ballots are marked as challenged so the voter is allowed to have their ballot counted but the ballot can be retrieved in the event of a legal challenge. The RNC wanted these voters disenfranchised, and the court denied their request.”
On the court’s call for the Bureau of Elections to update its guidance documents, which Benander said were for reasons unrelated to the RNC’s lawsuit, the department said the bureau was “happy to make this change.”
Swartzle also left it up to the department’s discretion on whether to revise and reprint a flipchart challenged in the lawsuit in accordance with his order, or instead, give officials instructions on to manually correct the flipchart as explained in the ordered revisions.
Gongwer News Service
A Court of Claims judge last Friday ordered Michigan Secretary of State Jocelyn Benson to amend one sentence in the 2024 election guidance after the Republican National Committee and the Michigan Republican Party alleged the document conflicted with state statute.
Court of Claims Chief Judge Brock Swartzle in an opinion for RNC v. Benson (COC Docket No. 24-000148) ordered the secretary of state to revise a sentence of the manual distributed to clerks and election workers. The order was not final and did not close the case.
Swartzle’s order also split the difference for the parties in the case, denying many of Benson’s motions for summary disposition but granting in part a motion for summary disposition related to her objection of the case continuing on an affirmative defense of laches. Swartzle mostly granted in part various motions for summary disposition filed by the plaintiffs.
The lawsuit alleged that the state wasn’t doing enough to enforce an absent voter ballot number matching requirement. It further claimed Benson’s election guidance to clerks instructs them and election inspectors to process and tabulate absent voter ballots where the stub is missing or the number does not match the number in the pollbook, or on the ballot return envelope. The RNC contends that the instructions tell them to mark those ballots as “challenged” rather than rejected, as required by Michigan law.
The case was admittedly wonky, and the opening paragraphs of Swartzle’s opinion were no less technical, reading like an algebraic word problem. He also quoted William Shakespeare and the Book of Genesis.
“As sure ‘as the night the day,’ when there is an instance of X, there will be an instance of not X. Thus, as a matter of course, when one reads a statement in the form of if X, then Y, one expects that the statement immediately following will be in the form of if not X, then __,” Swartzle wrote. “When the latter statement goes missing, however, one might read the omission as implying the answer (i.e., if not X, then logically not Y); as an oversight by the author permitting someone else to provide the answer (i.e., I declare: if not X, then Z); or as an invitation to the reader to look elsewhere to infer the answer (i.e., based on everything related, it seems clear: if not X, then J).”
He did so to illustrate recent amendments to Election Law where Swartzle said the Legislature “defied the reader’s expectation by adding the if X, then Y statement, but then omitting the related if not X, then __ statement.”
“Specifically, our Legislature amended MCL 168.768 in February of this year to state that, if the number printed on an absent voter’s ballot stub agrees with the number printed on the return envelope, then the ballot must be tabulated,” Swartzle wrote. “As to what happens when the numbers do not agree – when there is a ‘mismatch’ of the numbers or a missing stub – our Legislature was silent.”
Referencing the case at hand, Swartzle said the RNC argued the Legislature’s silence on the matter was “deafening” but that state statute “makes clear that a mismatched absent-voter ballot or an absent-voter ballot with a missing stub must be rejected and the affected voters – the absent voter to whom the ballot was issued and the absent voter to whom the return envelope was issued – must be given an opportunity to cure.”
Benson and Elections Director Jonathan Brater responded by arguing the Legislature’s silence should be understood as an oversight or statutory gap and that Benson had clear legal authority to provide a definitive answer.
Swartzle last Friday ruled that “whether one side is fully right, or whether each side partially hits and partially misses the mark, is not immediately clear on this nascent record, the case being precisely two weeks old.”
What was clear, Swartzle wrote, was that the plaintiffs have standing; the plaintiffs have satisfied the one-year notice requirement under the Court of Claims Act; the plaintiffs were entitled to partial declaratory and injunctive relief; there remains complex questions of law and fact on whether to treat absent-voter ballots that are mismatched or missing a stub as rejected, challenged, or something else; and that the defendants were entitled to partial relief under the affirmative defense of laches.
Of the changes he ordered to the election manual, Swartzle said a sentence on Page 7 of the text – “Without exposing any votes, the election inspector should verify that the number on the ballot stub agrees with the ballot recorded for the voter in the QVF Absent Voter list” – should be revised as follows: “Without exposing any votes, the election inspector must verify that the number on the ballot stub agrees with the ballot number on the face of the absent voter return envelope.”
Swartzle also wrote that, for the sake of clarity, Benson and Brater can continue, as an additional step, with “the current practice that the ballot stub number should be compared with the ballot number recorded in the QVF Absent Voter List, but, at a minimum, the manual must be revised to reflect the statutory requirement that the ballot stub number must be compared to the number on the return envelope.”
The defendants were ordered to promptly post and distribute the updated manual to the appropriate offices prior to the tabulation of any absentee voter ballots for the November 5 general election.
MDOS spokesperson Angela Benander told Gongwer News Service that the department was pleased that the court rejected the RNC’s “11th hour request to disenfranchise absentee voters.”
“Since at least 1996, under both Democratic and Republican Secretaries of state, election workers have followed the same practice for absentee ballots where the voter’s signature has been verified, but there is a mismatch in the ballot stub number to the ballot number on file, which can be because of an administrative error,” Benander said. “These ballots are marked as challenged so the voter is allowed to have their ballot counted but the ballot can be retrieved in the event of a legal challenge. The RNC wanted these voters disenfranchised, and the court denied their request.”
On the court’s call for the Bureau of Elections to update its guidance documents, which Benander said were for reasons unrelated to the RNC’s lawsuit, the department said the bureau was “happy to make this change.”
Swartzle also left it up to the department’s discretion on whether to revise and reprint a flipchart challenged in the lawsuit in accordance with his order, or instead, give officials instructions on to manually correct the flipchart as explained in the ordered revisions.
