By Liz Nass
Gongwer News Service
In opposition to the Department of State’s rules on deletion of election poll book software, the Michigan Court of Claims is ordering every local clerk to keep their Nov. 3 poll book information.
The court ordered the expansion of a temporary restraining order on the state’s administrative code to delete poll book information seven days after election certification. While the restraining order was meant to instruct one local clerk who questioned the code, the Republican National Committee and Michigan Republican Party intervened to challenge the administrative code as unenforceable for the entire state.
Poll books are used by poll workers to confirm voter registration and contain information from the Qualified Voter File.
The question of keeping election material has been litigated in the past few months against Secretary of State Jocelyn Benson and the Bureau of Elections.
Michelle McQueer, a local clerk from Bridgewater Township, sued Benson, Director of Elections Jonathan Brater and the department in August to receive a directive on if she should follow the administrative rule of seven days or federal law, which requires keeping election records for 22 months.
The court ordered that McQueer could follow the federal law in regard to her records from the primary election instead, which states that when federal offices are on the ballot, those records could be kept until 2028.
According to McQueer’s complaint, she asked before the election how she would obey both precedents and was met with no response. Her complaints asked for preservation of the records.
The state replied to the order arguing the rule does not conflict with federal law, and that “all electronic information that could be considered a record subject to these statutes is uploaded to the qualified voter file and preserved.” The states also said there is “only one record that is not uploaded, it is instead printed from the (poll books) and retained as a paper record.”
The state argued McQueer is misinterpreting the law, which they say only applies to papers or records an election official receives from an external source, not self-created software and databases like the Qualified Voter File or poll books.
The information within the Electronic Poll Books, or EPBs, is still retained as directed under federal law, the state argued.
“While Plaintiff McQueer may not be able to access or read some information, it is still being retained by the defendants,” the state’s counsel wrote in response.
Gongwer News Service
In opposition to the Department of State’s rules on deletion of election poll book software, the Michigan Court of Claims is ordering every local clerk to keep their Nov. 3 poll book information.
The court ordered the expansion of a temporary restraining order on the state’s administrative code to delete poll book information seven days after election certification. While the restraining order was meant to instruct one local clerk who questioned the code, the Republican National Committee and Michigan Republican Party intervened to challenge the administrative code as unenforceable for the entire state.
Poll books are used by poll workers to confirm voter registration and contain information from the Qualified Voter File.
The question of keeping election material has been litigated in the past few months against Secretary of State Jocelyn Benson and the Bureau of Elections.
Michelle McQueer, a local clerk from Bridgewater Township, sued Benson, Director of Elections Jonathan Brater and the department in August to receive a directive on if she should follow the administrative rule of seven days or federal law, which requires keeping election records for 22 months.
The court ordered that McQueer could follow the federal law in regard to her records from the primary election instead, which states that when federal offices are on the ballot, those records could be kept until 2028.
According to McQueer’s complaint, she asked before the election how she would obey both precedents and was met with no response. Her complaints asked for preservation of the records.
The state replied to the order arguing the rule does not conflict with federal law, and that “all electronic information that could be considered a record subject to these statutes is uploaded to the qualified voter file and preserved.” The states also said there is “only one record that is not uploaded, it is instead printed from the (poll books) and retained as a paper record.”
The state argued McQueer is misinterpreting the law, which they say only applies to papers or records an election official receives from an external source, not self-created software and databases like the Qualified Voter File or poll books.
The information within the Electronic Poll Books, or EPBs, is still retained as directed under federal law, the state argued.
“While Plaintiff McQueer may not be able to access or read some information, it is still being retained by the defendants,” the state’s counsel wrote in response.
“Between the EPB upload to the QVF, the printing of the three EPB paper reports and the records retained under MCL 168.811, any information necessary to recreate Election Day in a particular precinct is retained and preserved either by defendants, the county clerks, or the municipal clerks for at least 22 months.”
Then, the Republican Party and committee looked to intervene, which the court first denied, and then according to the new order, changed course when it realized there would not be full resolution on this matter before Nov. 3, allowing the restraining order to expand to all local clerks.
When the party and committee sought to intervene, the state argued the Republicans’ concerns of an outstanding question of whether information concerning absent voter ballots that are marked as challenged ballots due to missing or mismatched stubs is retained in a poll book, was moot because this information is also uploaded to the Qualified Voter File.
The court stated the instructions for the poll books this November from Benson, Brater and the department “must direct those officials to transfer the EPB from the precinct laptops onto the encrypted flash drives and then to securely store those flash drives until further order of this court.”
The order is not a final order resolving the issues, but instead an order to wait for more instructions on what to do next with the poll book information before an ultimate ruling on federal versus the administrative rule.
Kevin Kijewski, counsel for McQueer, announced the order in a social media post, saying he was glad to have the state party and committee in the fight, and championed the U.S. Department of Justice Civil Rights Division for filing a statement of interest asserting that the poll book data remains the ultimate responsibility of Benson.
“Reconstruction is not preservation,” Kijewski said in the post. “This isn't the final ruling. But no November poll book gets deleted while the judge decides. That's all one clerk asked for.”
Sam May, spokesperson for Benson and the Department of State, said in a statement that the Court of Claims did not rule on the merits of the complaint that the Bureau of Elections’ guidance conflicts with state or federal law, and that they are “reviewing the ruling to determine (their) next steps.”
Then, the Republican Party and committee looked to intervene, which the court first denied, and then according to the new order, changed course when it realized there would not be full resolution on this matter before Nov. 3, allowing the restraining order to expand to all local clerks.
When the party and committee sought to intervene, the state argued the Republicans’ concerns of an outstanding question of whether information concerning absent voter ballots that are marked as challenged ballots due to missing or mismatched stubs is retained in a poll book, was moot because this information is also uploaded to the Qualified Voter File.
The court stated the instructions for the poll books this November from Benson, Brater and the department “must direct those officials to transfer the EPB from the precinct laptops onto the encrypted flash drives and then to securely store those flash drives until further order of this court.”
The order is not a final order resolving the issues, but instead an order to wait for more instructions on what to do next with the poll book information before an ultimate ruling on federal versus the administrative rule.
Kevin Kijewski, counsel for McQueer, announced the order in a social media post, saying he was glad to have the state party and committee in the fight, and championed the U.S. Department of Justice Civil Rights Division for filing a statement of interest asserting that the poll book data remains the ultimate responsibility of Benson.
“Reconstruction is not preservation,” Kijewski said in the post. “This isn't the final ruling. But no November poll book gets deleted while the judge decides. That's all one clerk asked for.”
Sam May, spokesperson for Benson and the Department of State, said in a statement that the Court of Claims did not rule on the merits of the complaint that the Bureau of Elections’ guidance conflicts with state or federal law, and that they are “reviewing the ruling to determine (their) next steps.”
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