Promote the Vote’s Comments in Support of Secretary of State’s Proposed Rules

October 1, 2021


Michigan Bureau of Elections

PO Box 20126

Lansing, MI 48901


By email (




To Whom It May Concern:

Promote the Vote (“PTV”) is a nonpartisan coalition of pro-voter organizations and voting rights advocates. We submit the below written comments in support of proposed rule sets 2021-61 ST and 2021-62 ST. We also urge the Secretary of State, pursuant to MCL 168.31, to expand the rules to help ensure that all Michiganders may exercise their constitutional right to vote by absentee ballot.

By law, as enacted by the Michigan Legislature, the Secretary is charged with overseeing “the conduct of elections and registrations” in Michigan. MCL 168.31. As such, the Secretary has the authority to promulgate rules. The Secretary’s views on these matters are “entitled to respectful consideration and, if persuasive, should not be overruled without cogent reasons.” In re Complaint of Rovas Against SBC Mich., 482 Mich. 90, 108 (2008). No such “cogent reasons” exist to warrant setting aside the Secretary’s proposed rules or our recommendations below. The Secretary would not be acting “in excess of [her] statutory authority or jurisdiction,” Clam Lake Township v. LARA, 500 Mich. 362, 372 (2017), or taking a position that “conflict[s] with the Legislature’s intent as expressed in the language of the statute[s] at issue,” Younkin v. Zimmer, 497 Mich. 7, 10 (2014) (internal quotation omitted).

Neither the Secretary’s proposed rules, nor our recommendations, are in conflict with the language of the statutes at issue. Furthermore, it makes no difference if some specific aspects of the rules are not expressly contemplated by statute, which is invariably the case when agencies move to implement the laws they administer. Instead, as the U.S. Supreme Court has emphasized, “[t]he question is always whether the agency has gone beyond what [the legislature) has permitted it to do.” City of Arlington v. FCC, 133 S.Ct. 1863 (2013). The Secretary would thus exceed her powers were she to attempt to regulate matters unconnected to her statutory charge, which is not the case here. Railway Labor Executives’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc) (“Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony.”). Here, rule sets 2021-61 ST and 2021-62 ST, as well as our

recommendations for revising and expanding these rules, deal exclusively with “the conduct of elections and registrations,” MCL 168.31, and therefore must be afforded due deference. Mich Emp’t Relations Comm v Detroit Symphony Orchestra, Inc., 393 Mich 116, 124 (1974) (noting that any judicial review “must be undertaken with considerable sensitivity in order that the courts accord due deference to administrative expertise and not invade the province of exclusive administrative fact-finding”).


          I.      Promote the Vote Strongly Supports Providing Uniform Standards For Determining Signature Validity and

                   Urges the Secretary to Expand 2021-61 ST to Provide Greater Protections for Registered Voters. 


Promote the Vote strongly supports 2021-61 ST, which is designed to provide clerks with uniform standards for determining the validity of signatures on absent voter applications and ballot envelopes. Providing uniform, enforceable guidance for determining signature validity – starting with a presumption of validity – will go a long way towards ensuring that all Michiganders are able to fully exercise their constitutional right to vote by absentee ballot.


                         A.     A Presumption of Validity is the Right Place to Start, as the Government Should Not Interfere with the     

                                  Fundamental Right to Vote Without Clear and Specific Evidence. 


PTV strongly supports rule 168.22(1). This proposed rule does not conflict with the statutory requirement that a signature on an absent voter application or an absent voter ballot must match the signature on file. Rather, the rule clarifies specific issues not addressed by the statute. Rule 168.22(1) specifies where the signature verification process should begin, i.e, with a presumption that a voter’s signature is their genuine, valid signature. This presumption dissipates if a voter’s signature “differs in multiple, significant, and obvious respects from the signature on file.” A presumption, as that concept is well understood in the law, is simply a starting point. In this instance, the presumption ensures a government official has specific evidence before silencing the voice of a registered voter in Michigan.

The process of evaluating each voters’ signature must begin somewhere. And because the voters of this state have a constitutionally-protected right to vote by absentee ballot, Mich. Const. 1963, Art. II, § 4(1)(g), a presumption of validity is the right place to start. Promote the Vote is unaware of any other state with the same constitutionally-protected right. This fact must be taken into consideration when comparing Michigan’s signature verification system to that of other states.

Any contention that the proposed rules are intended “to sacrifice election security” is wholly without merit. Michigan’s elections – including the November 2020 presidential election for which the Secretary’s almost identical signature verification guidance was in place – have time and time again been proven secure. See, e.g., Michigan Senate Oversight Committee, Report on the November 2020 Election in Michigan. Michigan must not infringe upon the constitutional rights of voters based on false and unsupported claims that Michigan’s voting system is insecure.

In opposing this rule, some parties have claimed that the Secretary’s “nearly identical guidance,” issued in October 2020, was struck down by the Court of Claims as “illegal.” While it is true that this guidance was struck down by the Court of Claims, it was not struck down because of any defect in the substance of the guidance. Rather, the Court found the guidance to be a “rule” that should have been promulgated pursuant to the state’s Administrative Procedures Act. Opinion and Order Granting Summary Disposition in Part to Plaintiffs and Granting Summary Disposition in Part to Defendants, Genetski v. Benson, Michigan Court of Claims, No. 20-000216-MM, Mar. 9, 2021 at 14. This is the exact process that the Secretary is engaged in now.

Finally, PTV notes that rule 168.22(1) should apply equally to signatures on absent voter ballot envelopes. As written, the proposed rule provides: “On determining for purposes of section 761(2) of the Michigan election law … whether a voter’s absent voter ballot a signature or absent voter ballot envelope signature agrees sufficiently with the voter’s signature on file, signatures must be reviewed beginning with the presumption that the voter’s signature is his or her genuine, valid signature.” Section 761(2) pertains only to signatures on absent voter ballot applications. In order for the presumption of validity to apply equally to signatures on absent voter ballot envelopes, section 766 should be referenced in the rule as well.


                           B.      The Proposed Rule Should Be Revised to Direct Elections Officials to Treat Signatures as Valid Under

                                     Certain Circumstances.


R 164.24(1) provides that “[e]lections officials shall consider the following as possible explanations for the discrepancies in signatures,” and then lists reasons for the possible discrepancies. We recommend clarifying this provision by stating that election officials should treat a voter’s signature as valid if the officials determine that any discrepancies are a result of the enumerated examples. For example, R 164.24(1) could state: “A voter’s signature should be treated as valid if an election official determines that the discrepancies are the result of the following ….”

In addition, as written, R 164.24(1)(d), which references signatures written “in haste,” appears to only pertain to signatures on absent voter ballot envelopes or provisional ballot envelopes and not to signatures on absentee ballot applications. As signatures on absentee ballot applications can also be written in haste, PTV recommends simply saying “signature” in this provision, rather than referring specifically to “[t]he signature on the absent voter ballot envelope or provisional ballot envelope.’


                           C.     To Strengthen the Notice Provisions in this Proposed Rule, It Must Provide for MVIC to Include Timely

                                     Information About Signature Rejections and Establish Reporting Requirements to Ensure that Clerks

                                     Are Complying with the Rule’s Notice Requirements.


PTV urges the Secretary to include a provision requiring the Michigan Voter Information Center (“MVIC”) to include timely information about signature rejections. MVIC is the online portal that voters use to check the status of their absentee ballot applications and their absentee ballots. MVIC shows when a clerk receives a voter’s absentee ballot application, when the clerk sends the voter their absentee ballot, and when the clerk receives the voter’s completed absentee ballot. To further strengthen the notice provisions contained within this proposed rule, MVIC should also clearly indicate any signature issues with a voter’s application or ballot and how and by what deadline the voter may cure these issues.

In addition, to ensure compliance with the notice requirements in the proposed rule, PTV urges the Secretary to amend the rule to create a requirement that clerks document notice to voters in the Qualified Voter File.


                           D.     The Proposed Rules Should Be Amended to Clarify Certain Requirements, Extend the Cure Deadline

                                     Beyond Election Day, and Standardize the Cure Process.


Promote the Vote commends the Secretary for requiring city and township clerks, in rule 168.25, to immediately review absent voter ballot applications and envelopes received less than five calendar days prior to an election and to immediately contact a voter whose signature is rejected. This provision will go a long way towards ensuring that all registered voters attempting to exercise their constitutional right to vote by absentee ballot will be able to do so.

Promote the Vote also notes that “immediately” may mean different things to different election officials. See, e.g., Election Officials’ Manual, “Chapter 6: Michigan’s Absentee Voting Process” (defining “immediately” in the context of issuing absent voter ballots to mean within 24 hours). Therefore, Promote the Vote urges the Secretary to define that term in the rule to ensure that voters receive adequate notice and opportunity to cure.

Furthermore, by providing in rule 168.26 that “… a voter may cure a missing or mismatched signature up until the close of polls on Election Day,” the proposed rule fails to afford due process to those voters whose signatures are rejected on or close to Election Day. For example, even if a clerk immediately reviews a ballot envelope that is returned at 4 p.m. on Election Day, and even if that clerk immediately reaches the voter by phone to tell her that her signature has been rejected, the voter has an unreasonably limited amount of time within which to cure the issue by the 8pm deadline. Therefore, PTV urges the Secretary to amend this rule to provide that any voter whose signature is rejected on or close to Election Day has until six days after the election to cure any signature issues. The legislature has already determined that six days is a reasonable cure period, as it is the existing cure period for provisional ballots under MCL 168.813. Amending this rule to provide that voters with signature issues may cure up until six days after an election will ensure that all voters will have due process before being denied their constitutional right to vote by absentee ballot.

In addition, rule 168.26 provides that voters may cure signature issues “by providing a signature on the absent voter ballot application or ballot envelope … or by providing a signature on another form or method as specified by the election official on their website or in the election official’s office.” Allowing each election official to determine the way in which signature issues may be cured will lead to cure processes which vary by jurisdiction, are unequal and potentially unlawful, and which threaten to disenfranchise voters. For example, some local clerks may allow voters to cure signature issues remotely – by faxing or emailing a new signature – while others may require voters to come to their office to do so. And, as has unlawfully been done in the past, other clerks may require voters to appear in the office with photo identification to cure a signature issue.

Therefore, Promote the Vote urges the Secretary to provide uniform procedures and uniform forms, such as a cure form, to ensure that Michigan voters have a single, simple, straightforward, and readily-accessible system for curing any signature issues. Uniform procedures and forms will ensure Michigan has an equally-accessible system for curing signature issues throughout the state. Finally, all standardized cure forms must be available on the Secretary’s website, as not all city and township clerks have the ability to post such forms on their websites.

As explained more fully above, amending the proposed rule in these ways is well within the Secretary’s authority, as it fits squarely within her obligation to oversee “the conduct of elections and registrations.” MCL 168.31. Because the Secretary would not be acting “in excess of [her] statutory authority or jurisdiction,” Clam Lake Township v. LARA, 500 Mich. 362, 372 (2017), or taking a position that “conflict[s] with the Legislature’s intent as expressed in the language of the statute[s] at issue,” Younkin v. Zimmer, 497 Mich. 7, 10 (2014) (internal quotation omitted), no grounds would exist for setting aside such revisions.


          II.      Promote the Vote Strongly Supports the Availability of an Online Absentee Ballot Application and Urges the

                     Secretary to Expand 2021-62 ST to Ensure Online Access to a Printable Application as well for Voters Who

                     Prefer To Apply by Mail. 


The availability of an online application for absent voter ballots for all registered voters in Michigan is critical. Our state constitution provides the right to an absentee ballot for all registered voters, Mich. Const. 1963, Art. II, § 4(1)(g), and Michiganders overwhelmingly support making absentee voting more accessible. Robust access to an online application is necessary to ensure that all registered voters in Michigan can fully exercise this constitutional right without undue burden. Indeed, registered voters continue to use absentee voting at extraordinarily high rates – over 60% – and this rule would codify an important option that voters currently use to do so.

Finally, while providing an online application option is crucial, other voters may prefer to apply for an absentee ballot by mail. To facilitate this process, Promote the Vote encourages the Secretary to add to this rule a requirement that the Secretary provide a pdf of the application form on the Secretary’s website. Again, this is critical because not all city and township clerks have the ability to post such a form on their websites.


          III.     Conclusion


Michigan’s absentee voting system has existed for generations. However, for far too long, it was only available to certain voters. In 2018, Michigan voters changed the law to give all registered voters a full and equal constitutional right to vote by absentee ballot. This change ended years of discrimination and exclusion of some registered voters from the benefits of absentee voting. Comments submitted by some of the rules’ critics represent a full assault on the system of absentee voting that Michigan has enjoyed for years – a system that these critics took no issue with when it was unequal and exclusionary. Now that millions of voters in Michigan – voters of all ages, races, religions, and political persuasions – are exercising their constitutional right to vote by absentee ballot, these critics want to make it harder to do so by erecting numerous, burdensome hurdles. The effect will be to once again return to an unequal system of absentee voting that excludes large swaths of our fellow Michiganders.

As stated above, Promote the Vote commends the Secretary for promulgating these rules, which will help ensure that all Michiganders may exercise their constitutional right to vote by absentee ballot and urges her to expand them to provide greater protection for registered voters. Voting is a fundamental right – a right preservative of all other rights – and we must do everything we can to protect it.




Shira Roza

Voting Rights Manager

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