Written Testimonies on the voting rights bills on May 19, 2021
Promote the Vote submits this written testimony in opposition to SBs 275, 276, 288 and 296- 299.
The Partisan Video Surveillance Permitted by SB 275 Will Infringe on Voters and Election Workers Without Making the Process More Secure.
Audits are already an open process. Members of the public, including those affiliated with the two major political parties, are already permitted to attend audits to observe the process. Promote the Vote opposes SB 275 because it carves out special recording privileges only for observers from the two major political parties, thereby interjecting partisanship into what should be an objective review of the election process. Partisanship has no place in Michigan’s postelection audits, which are conducted after the votes have been cast and counted. Moreover, more video recording does nothing to address the major challenge witnessed throughout the postelection process in November 2020: that observers did not understand the election process or procedures.
First, the scope and scale of the video recording permitted by this bill is dangerously unspecified. Indeed, it could easily be interpreted to allow a partisan observer to focus their recording on a single voter’s ballot and the selections on that ballot. Furthermore, SB 275 doesn’t limit the number of partisan observers permitted to record the process, thus creating the very real possibility that the individuals seeking to record the audit would outnumber those conducting the audit. Also, SB 275 does not expressly permit the removal of an observer who is recording the process because they are intimidating or harassing the election officials conducting the audit.
Finally, additional video surveillance will not make the auditing process more secure. The public, challengers, and even politicians often do not understand – and therefore misconstrue – what they see in videos. For example, a video showing a man unloading a long black box from a parked van in the early hours of November 4, 2020 led to widespread claims of ballot boxes being smuggled into TCF after the deadline, when the black box was in fact a reporter’s camera equipment. Video surveillance could also be doctored by unscrupulous individuals to undermine the audit process, as has already happened in other states.
SB 276 Provides for Legally-Sanctioned Voter Intimidation and Chaos at the Precincts and Absent Voter Counting Boards.
Video recording is currently prohibited at the precincts and at absent voter counting boards. This prohibition is prudent – recording the voting process can be intimidating to voters and election workers and can threaten the constitutional right to a secret ballot. Promote the Vote opposes SB 276 because it would allow such recording at precincts and absent voter counting boards.
SB 276 empowers untrained poll watchers to record the tabulation of votes in precincts and absent voter counting boards. Unlike challengers and election inspectors, poll watchers are not trained, and therefore may have no idea what conduct is and is not permitted in the precincts or absent voter counting boards. For example, election officials are directed to maintain a 10-foot privacy perimeter around the tabulator in each precinct in order to protect each voter’s constitutionally-guaranteed right to a secret ballot. Untrained poll watchers are unlikely to know this and will thus create an intimidating environment for voters seeking to make their voices heard. Moreover, there is no limit to the number of poll watchers that may be present in a precinct or counting board, and SB 276 would therefore provide for dozens of individuals (or more) swarming voters and election workers with cell phones, video cameras, and other recording devices.
Herds of untrained individuals attempting to record tabulation would create a chaotic scene at the polls and counting boards. Therefore, SB 276 would require municipalities to recruit and train additional poll workers to, for example, maintain the 10-foot privacy perimeter around the tabulators. Recruiting and training even the minimum number of poll workers is already a challenge for many municipalities, and SB 276 provides no support for recruiting, training, and paying the additional workers who would be needed to implement the bill.
Moreover, SB 276 provides no protection for voters who may be intimidated by the recording. Indeed, it is hard to imagine what would be more intimidating to even a seasoned voter than a swarm of potentially hostile individuals recording her as she inserted her ballot into the tabulator. The recording allowed by SB 276 would also impair the constitutional right to a secret ballot. Even if those doing the recording remained outside the 10-foot privacy perimeter, there’s no provision against using equipment with powerful zooms that could record the details of an individual voter’s ballot.
Finally, SB 276 provides for election inspectors recording the tabulation of votes, but Promote the Vote can think of no possible reason why doing so would benefit the electoral process. Rather, it would distract election officials from their sworn duties related to administering the election.
SB 288 Will Undermine the Integrity of Post-Election Audits by Shifting Oversight Away from County Election Officials.
SB 288 would undermine the integrity, purpose and function of post-election audits by (1) allowing local city and township clerks to appoint those responsible for auditing their own performance, and (2) expressly interjecting partisanship into the post-election audits, which should be an objective, nonpartisan review of the election. Therefore, Promote the Vote opposes the bill.
As a preliminary matter, SB 288 contains contradictory and confusing language. For example, it keeps the original language providing for County Clerks to conduct the audits, but it also adds additional language providing for the appointment of election inspectors “for the efficient, speedy, and proper conduct of the election audit.”
Under current law, local city and township clerks have primary responsibility for managing elections. County Clerks then conduct post-election audits of the precincts randomly selected by the Secretary of State within their county. This well-advised, objective process ensures there is an impartial election official auditing the performance of another election official. SB 288, however, would transfer the handling of these audits from the County Clerks to election inspectors, appointed on a partisan basis, by the city or township clerk whose performance is the subject of the audit. As the city and township clerks will undoubtedly be interested in the outcome of the audit in a way that the County clerks are not, this change would undermine the audit’s integrity. Furthermore, because the appointed election inspectors would be partisan, SB 288 would expressly interject partisanship into what should be an objective, nonpartisan review of the election.
SB 288 also provides for each major political party to appoint two observers to monitor the audit and for the Secretary of State to livestream the audit. Both provisions are unnecessary. Audits are currently open for public observation, which provides more than adequate access, accountability, transparency and oversight.
SB 296 Imposes Unequal Procedures, Creates the Potential for Partisan Gridlock, and Will Delay the Certification of Election Results.
Promote the Vote opposes SB 296 because it would create an unequal process for certifying elections by County Boards of Canvassers. SB 296 proposes to change the process in a small number of Michigan counties. These counties are home not only to the vast majority of Michigan voters but also to the vast majority of Michigan voters of color. For these reasons, Promote the Vote opposes SB 296.
Promote the Vote further opposes SB 296 because it increases the number of appointed, partisan officials on the County Boards, which will do nothing to improve the voting process or security of our elections. By adding a number of appointed, partisan officials to some County Boards, and tampering with the process for certifying the results, there will be more partisan gridlock in the post-election process of canvassing election results. The changes proposed by SB 296 will delay the certification of election results, will likely result in additional, needless litigation to certify election results, and will increase the cost of certifying the election results. These delays will in turn threaten to jeopardize the votes of all Michiganders by increasing the likelihood that Michigan misses certain critical deadlines in future elections.
SB 297 Shifts Responsibilities to Appointed, Partisan Members of the County Boards of Canvassers, Creating Greater Chance of Gridlock and Delays in Certifying Election Results.
Promote the Vote opposes SB 297 because it shifts responsibility for staffing the canvass process away from election officials and their staff to individuals selected by appointed, partisan members of the Board of Canvassers. This change will undermine, rather than improve, the post-election process of certifying the election results. Under the current provisions of Michigan election law, a County Board of Canvassers is instructed to work with the county clerk and their staff to conduct the canvass. MCL 168.821 et seq. At present, county clerks, who are both elected by the voters in their community and have expertise in election administration, are tasked with the responsibility of hiring assistants for the canvass. SB 297 would add a burdensome requirement that the hiring of each assistant be approved by the partisan members of the County Board of Canvassers. This creates an opportunity for partisan motivations to interfere with and delay the process of canvassing the votes, because partisan members of a County’s Board of Canvassers could refuse to hire the assistants needed to conduct the canvass in a timely manner.
Promote the Vote further opposes SB 297 because it requires that at least one member from each political party be present during the entire canvass. Again, as described above, each County Board of Canvassers works with the county clerk and their staff to conduct the canvass. By requiring that a member from each party be present, either party is empowered to halt or delay the canvass by refusing to show up. The votes in each election need to be counted in a timely and accurate fashion, and Michigan should not adopt any provisions that would empower partisan officials to block or otherwise undermine the timely and accurate counting of the votes of the people of Michigan.
SB 298 Would Extend the Deadline for Completing the County Canvass, Jeopardizing Michigan Voters’ Ability to Make Their Voices Heard in Future Elections.
Promote the Vote opposes SB 298 because (1) it doesn’t provide additional funding for local elections officials to complete the canvass in the time provided, (2) extends the deadline on the back end, while ignoring the need for more pre-processing time on the front end, and (3) threatens to disenfranchise Michigan voters by running the risk of missing other critical postelection deadlines.
Under current law, Michigan’s County Board of Canvassers must conclude the canvass “at the earliest possible time” and no later than the 14th day after the election. MCL 168.822(1). If the County Board does not complete the canvass by this deadline, it must notify the Michigan
Secretary of State and deliver all materials necessary to complete the work to the State Board of Canvassers. MCL 168.822(2). In the wake of a County Board’s failure to perform its duty to complete the canvass, the State Board of Canvassers has ten days to complete the canvass of the county’s election results. In any circumstance where the State Board of Canvassers must complete the canvass, the county bears the cost of the State Board completing the process. In conclusion, whether the County Board completes the canvass and whether it is done in two weeks or three, funding to complete the canvass is required to ensure the post-election process of counting the votes is timely and accurate.
Promote the Vote opposes SB 298 because it does not take into account the comprehensive election administration system in which this deadline operates and will have detrimental consequences for the voters of Michigan. The current deadline is critical to ensuring that additional state and national post-election processes occur in a timely fashion and the voice of the voters of Michigan is heard. For example, under Michigan law, a recount cannot occur until the County Board completes the canvass. MCL 168.866(2), 168.880. By extending the deadline for County Boards to complete the canvass, adding an additional 50% more time, SB 298 would delay the time when a recount could begin, and thus when it would end.
SB 298 creates a grave risk that Michigan will miss the safe harbor provisions of the Electoral Count Act of 1887 in future presidential elections. Under the safe harbor provision, if a state submits its election results at least six days before the Electoral College is set to meet, Congress must treat the election results as conclusive. Michigan must meet this critical deadline to ensure the vote of every Michigander is counted in future presidential elections. Rather than improving the processes in Michigan, SB 298 threatens to interject even more chaos into the post-election certification process.
Promote the Vote opposes SB 298 because it seeks to extend the time for completing the canvass and certifying the election results on the back end, while ignoring the need for more time on the front end. For more than a year, local election officials in Michigan have been calling for more time to pre-process absentee ballots. And the data from numerous 2020 elections make clear that more pre-processing time is needed. Despite the data and expertise pointing to the need for more pre-processing time, Senate Bill 298 would maintain the inadequate status quo.
Finally, Promote the Vote opposes SB 298 because it does nothing to address the critical gaps in funding for local election administration. To protect the voters of Michigan and ensure their voices are heard in all future elections, Michigan must adequately fund election administration and ensure County Boards complete the canvass by the current deadline.
SB 299 Imposes a New, Unworkable Deadline on Local Election Officials to Deliver Election Results, While Failing to Provide Additional Time to Pre-Process Absentee Ballots.
Administering elections in Michigan is a heroic task. Local election officials do so with integrity and diligence, and they seek to deliver preliminary election results as soon as possible. Promote the Vote opposes SB 299 because it imposes a new and unworkable deadline on local officials to submit election results, thus prioritizing speed over the accuracy of the election results.
Local election officials have a duty to count all votes properly submitted and do not currently have a deadline by which they must do so. Because of the volume of absent voter ballots submitted in recent elections, and because jurisdictions may not begin counting absent voter ballots until polls open on Election Day, reporting election results can take time.
Clear evidence has shown that communities from Southwest to Southeast Michigan have been unable to meet the deadline that SB 299 would impose. For example, In August and November 2020, several jurisdictions were still counting absent voter ballots well into the day after the election, which is past the deadline proposed by this bill.