Written Testimonies on the voting rights bills on May 12, 2021
Promote the Vote submits this written testimony in opposition to SBs 279, 290, 291-295, 300, 301 and 309.
Michiganders want and deserve a voting system that works for all of us regardless of our race, religion, zip code or party. Promote the Vote urges the members of the Senate Elections Committee to follow the lead of the voters of Michigan and build on Proposal 3 of 2018 to protect the right to vote and expand access to the ballot.
Promote the Vote Opposes SB 300 As Written, Because It Does Not Provide Michiganders with the Early Voting System We Need.
When the voters of Michigan adopted Proposal 3 of 2018, they gave every registered voter the constitutional right to determine whether to vote on or before Election Day. Registered voters now have the freedom to choose to vote by absentee ballot prior to Election Day or by a regular ballot in their precinct on Election Day. In November 2020, more than 3 million Michigan voters chose to vote by absentee ballot. In future elections, Michigan can expect to have at least this many or more voters choose this option.
Now that Michigan voters have a constitutional right to vote by absentee ballot, whether in person at their clerk’s office or satellite office or through the mail, Michigan should adopt an early voting system where registered voters can apply for and vote a ballot in their precinct, including putting their completed ballot into a tabulator.
Allowing voters to vote before Election Day, in a manner similar to how they vote in the precinct, will improve the voting experience for voters and improve the efficiency of administering elections for election administrators. Providing the opportunity for voters to put their completed ballot into a tabulator will assure voters that their ballot was counted, alert voters to any problem with their ballot (such as an overvote or undervote) and provide voters with the opportunity to immediately correct any identified error. A robust early voting system where voters put their completed ballot into a tabulator will also reduce the burdens associated with opening, processing and tabulating absentee ballots. Unfortunately, neither benefit will occur if Michigan adopts the overly restrictive and inefficient system proposed in SB 300.
According to the National Conference of State Legislatures, 24 states have already enacted early voting for their voters. Importantly, the average number of days of early voting across these states is 19. In contrast, SB 300 proposes just one day. SB 300 would make Michigan the first and only state in the country to offer just one day of early voting. The Committee should follow the lead of this state’s voters and provide early voting during the same period that absentee voting is available – i.e., a clerk’s normal business hours for 40 days before each election – and should require robust evening and weekend hours during the 21 days prior to an election. Furthermore, the Michigan legislature should provide funding to implement early voting and to create opportunities for local election officials to work together to provide robust early voting opportunities for all voters across Michigan.
SB 301 Imposes a Vague Prohibition on Collecting Critical Data that Increases the Transparency and Security of Michigan Elections.
Promote the Vote opposes SB 301 because it is vague and would interfere with the collection of data, such as when and by what method a voter cast their ballot. This type of data is currently collected in Michigan’s voter registration database, the Qualified Voter File, and it is a critical component of Michigan’s comprehensive system for tracking and securing our voting system. This data is also critical for analyzing voting patterns for election administration planning purposes. SB 301 is also tied to SB 300, which Promote the Vote opposes as written.
Michigan needs an early voting system that guarantees the secrecy of a voter’s ballot selections and prohibits the dissemination of those selections prior to 8 p.m. on Election Day. SB 301, however, prohibits “characterizing how a ballot was voted,” which is vague and does not clearly prohibit sharing information on the selections made in various races. As written, SB 301 may prohibit current data collection.
SB 279 Increases the Number of Partisan Challengers Permitted in Absentee Ballot Counting Boards, Making It Harder for Poll Workers and Local Election Officials to Perform Their Duties.
The current Michigan law providing for challengers at absentee ballot counting boards is more than adequate. In contrast, SB 279 would inundate absentee ballot counting boards with many more partisan challengers, making it harder for poll workers and local election officials to process and tabulate absentee ballots, which will in turn, delay the counting and the release of election results.
SB 279 also adopts an unworkable metric for determining how many challengers are permitted at each absentee ballot counting board. Under the current system, political parties and organizations may designate up to one challenger for each counting board. In contrast, SB 279 ties the number of challengers to the number of “absent voter ballots assigned to be counted” by the counting board, a number which can’t possibly be known until 8 p.m. on Election Day, which is the deadline by which voters must return their absent voter ballots.
SB 290 Eliminates Nonpartisan Challengers and Increases the Number of Partisan Challengers, thus Increasing the Potential for Voter Intimidation and Making it Harder for Poll Workers and Local Election Officials to Perform Their Duties.
Promote the Vote opposes SB 290 because the bill eliminates nonpartisan challengers and increases the number of partisan challengers, thus inundating and overwhelming polling locations, and increasing the likelihood of voter intimidation and interference in the voting process.
Nonpartisan challengers unaffiliated with any political party or candidate, have long played a critical role in Michigan elections. Organizations like the NAACP and the Lawyers Committee for Civil Rights Under Law, as well as numerous smaller, local community organizations, have participated in nonpartisan challenger programs for decades. Nonpartisan challengers are trained to look out for any effort, organized or otherwise, to disenfranchise, intimidate or interfere with the freedom to vote of any registered voter in Michigan. These challengers play a crucial role in ensuring that all eligible Michigan voters may cast a ballot without undue interference and should not be eliminated.
Furthermore, political parties may already designate challengers. Allowing each candidate on a ballot to designate additional challengers will inundate and overwhelm polling locations. This will increase the likelihood of voter intimidation and interference, and will ultimately make it more difficult for poll workers to serve the voters. Moreover, by exponentially increasing the number of challengers permitted in each precinct, SB 290 will result in over-crowding in many precincts across the state.
Promote the Vote also opposes SB 291 and SB 293, which appear to be the same and are connected to the elimination of nonpartisan challengers.
SB 292 Would Impose Unreasonably Burdensome Restrictions on Challengers Throughout the State.
Promote the Vote supports robust challenger training. However, we do not support SB 292, as its training requirements are too restrictive and onerous in ways that will not improve the voting experience for the voters of Michigan.
First, requiring all challengers to be trained at least three days prior to Election Day is too restrictive. Changing circumstances, including late-breaking threats to voters in a particular community, often require recruiting, training and deploying additional challengers the weekend before Election Day, the day before Election Day, on Election Day or even after Election Day, in the case of challengers serving at absentee ballot counting boards. Moreover, credentialling organizations often prefer to train challengers close to Election Day, because it ensures that the training is fresh in the challenger’s mind when they serve.
Furthermore, SB 292’s requirement that challengers submit an affidavit “attesting” to their completion of challenger training is unreasonably burdensome and restrictive. Partisan and nonpartisan organizations recruit, train and designate challengers all over the State of Michigan. As a result, training is often delivered by webinar. Obtaining confirmation that challengers have been trained can and should be achieved through a modern, flexible approach rather than an overly burdensome affidavit. And most importantly, there must be an enforcement mechanism to address noncompliance with the training requirement.
SB 294 Unreasonably Restricts and Burdens Local Election Officials in Performing Their Duty to Ensure Adequate Staffing of Elections.
Promote the Vote opposes SB 294 because it does nothing to address the challenge of recruiting an adequate number of election inspectors. Instead, it compounds the problem by nearly ensuring that many communities will face an inspector shortage.
Local clerks and election commissions throughout the state work hard to satisfy their legal duty to adequately staff elections, i.e., appointing an adequate number of election inspectors as required for the “efficient, speedy and proper conduct of the election.” MCL 168.674(1). Recruiting an adequate number of election inspectors, regardless of political party affiliation, is often quite difficult. What’s more, the distribution of voters across the state makes it almost impossible for clerks and election commissions to achieve partisan balance in each and every precinct. The current law recognizes this formidable challenge and requires that each local election commission achieve this balance “as nearly as possible.” MCL 168.674(2).
SB 294 seeks to impose additional requirements while doing nothing to assist cities and townships in achieving the goal of recruiting an adequate number of election inspectors and achieving partisan balance. To assist cities and townships, Michigan will need to increase funding for elections, including funding for election inspector recruitment and pay. Michigan should also consider expanding who can serve as an election inspector to include voters who identify as Independent. Rather, SB 294 effectively bars local election commissions from adequately staffing elections if the partisan balance cannot be achieved.
SB 295 Imposes Additional Requirements on Local Election Officials and Election Inspectors While Failing to Address the Critical Need to Amend Michigan’s Flawed Recount Law.
Promote the Vote opposes SB 295 because it does nothing to address the real issue: Michigan’s obscure recount provisions which can make it impossible to recount a precinct that is out of balance. To address this issue, this Committeeshould take up debate on SB 53, which would address the recount law’s inadequacies.
Promote the Vote further opposes SB 295 because it ignores the data and analysis on why precincts can become out of balance and the comprehensive approach needed to address it. See,
Report on Audits of the November 3, 2020 Election published by the Michigan Department of State
(https://www.michigan.gov/documents/sos/BOE_2020_Post_Election_Audit_Report_04_21_21_ 723005_7.pdf).
SB 309 Greatly Enhances the Power of Partisan Challengers Over and Above Voters and Election Inspectors Making it More Likely Challengers will Disrupt the Voting Process.
Promote the Vote opposes SB 309 because it increases partisan challengers’ ability to disrupt and intimidate voters, while simultaneously making it harder for election inspectors to perform their duties.
Under current Michigan law, to challenge a person’s right to vote, a challenger must have “good reason to believe [the person] is not a registered [voter].” MCL 168.733(1)(c). SB 309 would give challengers new, ill-conceived bases to challenge registered voters. Some of these new bases require knowledge and expertise that challengers do not possess, like the validity of forms of identification. SB 309 also provides for challenging every voter who is not in the pollbook, even though each and every voter who exercises their constitutional right to register to vote on Election Day will not be in the poll book. In November 2020 alone, thousands of voters across the state exercised this right, and SB 309 would make each of these voters subject to a challenge that they were not qualified to vote.
Promote the Vote opposes SB 309 because it increases the power of challengers and reduces the power of the election inspectors, chairpersons and voters who are present in the precinct. Although the practice in Michigan is to provide numerous warnings to a challenger before expulsion, SB 309 would require the chairperson to provide the challenger with a written explanation for the expulsion. The primary reason for which a challenger is expelled in Michigan is intimidating voters or staff or interfering with the voting process. SB 309 ensures that such a disruptive challenger can continue to disrupt the process and intimidate voters and staff by requiring the chairperson to engage further after expulsion and by distracting the chairperson away from attending to voters. SB 309 would also exclude a chairperson who erroneously expels a challenger from serving for an extended period of time (two years), which will create a chilling effect on chairpersons effectively and swiftly dealing with issues in their precinct.
Under current law, challengers have sufficient access to voters and voting materials to allow them to observe the election process. SB 309, however, would increase this access in a way that would be harmful to voters and impede the ability of election inspectors to perform their duties. Challengers are currently allowed to be present behind the table where voters are being checked in at a precinct. Challengers also have a right under current law to observe the poll book. SB 309 would extend that to “tabulators, and other election documents and materials.” Under SB 309, challengers must be provided space to clearly observe the tabulator, despite the fact that doing so will threaten voters’ constitutional right to a secret ballot. See, current guidance provided by the Michigan Bureau of Elections instructing election inspectors to create a ten-foot perimeter around the tabulator to protect the secrecy of voters’ ballots
(https://www.michigan.gov/documents/sos/Managing_Your_Precinct_on_Election_Day_391790_7.pdf).
SB 309 also elevates challengers’ rights above the needs of election inspectors. Reasonable space is defined as the “distance that allows the election inspectors to perform their duties,” but this standard is conditioned on the additional requirement that challengers be able to “clearly read and observe the poll books, tabulators, and other election documents and materials.” SB 309 does not clearly establish that the needs of election inspectors and voters take priority over challengers.
Current law is quite solicitous of voters’ privacy, especially with regard to recording devices. In fact, it was only in 2019, that Michigan voters gained the right to take a ballot selfie. To protect voters and avoid intimidation, voters are restricted to taking the ballot selfie in the voting booth. SB 309 would drastically increase the use of recording devices in polling locations by permitting challengers to use a “smart phone, tablet, laptop, or other electronic device in a polling place or at a counting board.” Allowing challengers to be recording in precincts will intimidate voters and disrupt the voting process. Tellingly, SB 309 extends this right to challengers but not to voters or election inspectors.
The proposed law states that challengers may not use these devices in ways that “hinder or impede an elector’s right to vote or right to vote a secret ballot,” but it provides no protection against challengers using these devices in ways that (1) hinder election inspectors from performing their duties, (2) hinder other challengers from performing their duties, or (3) intimidate voters.
By increasing the rights of challengers, exponentially increasing the number of challengers, and ensuring all challengers are acting on behalf of a party or candidate, the bills in this Senate package will create additional chaos, disruption, intimidation and interference for voters performing their civic duty in upcoming elections. These bills undermine voters and election officials, and elevate challengers, and do nothing to increase the security or integrity of elections in Michigan.
