On March 9, 2021, Michigan Court of Claims Judge Christopher Murray invalidated an absentee/mail-in ballot rule instituted by Secretary of State Jocelyn Benson (D) in the run-up to the November 3, 2020, general election. Murray held that Benson’s rule, which directed local clerks to presume validity when verifying signatures on absentee/mail-in ballot applications and return envelopes, had been issued in violation of the Administrative Procedures Act (APA).
Benson’s guidance, issued on October 6, 2020, directed local clerks to treat signatures as valid if there are “any redeeming qualities in the application or return envelope signature as compared to the signature on file.” “Redeeming qualities” are described as including, but not being limited to, “similar distinctive flourishes” and “more matching features than non-matching features.” Allegan County Clerk Robert Genetski and the Republican Party of Michigan filed suit against Benson, alleging that her guidance violated the state’s election laws and the Administrative Procedures Act. The plaintiffs asked that the court strike down the guidance as unlawful and enjoin its enforcement in future elections.
Murray sided with the plaintiffs, finding that Benson’s guidance was in fact a rule “that should have been promulgated in accordance with the APA. And absent compliance with the APA, the ‘rule’ is invalid.” Under the Administrative Procedures Act, a state agency is required to follow formal rulemaking procedures (e.g., when establishing policies that “do not merely interpret or explain the statute of rules from which the agency derives its authority,” but rather “establish the substantive standards implementing the program.”)
It is unclear whether the state will appeal Murray’s decision.
Background: Last year, 39 states, including Michigan, modified their administrative and/or statutory election procedures ahead of the general election. These modifications (and, in some cases, the lack thereof) triggered a wave of litigation activity. In the run-up to the general election, there were at least 425 lawsuits, and subsequent appeals, filed, 242 of which dealt primarily with absentee/mail-in voting procedures. Although courts issued orders in most of these cases before November 3, 2020, they did not necessarily make final rulings on the questions of law presented in those cases. Murray’s ruling is an example of a post-2020 court action addressing the ultimate legality of policies implemented in 2020. Although a ruling like this one will not have an effect on the 2020 election, it will bear on the conduct of future elections.
Other recent examples of noteworthy post-2020 court actions include the following:
• Virginia: On January 13, 2021, Judge William Eldridge signed a consent decree between the parties in Reed v. Virginia Department of Elections. One of the conditions of the agreement was that the Virginia Department of Elections rescind an administrative rule, which was in place during the 2020 election cycle, that allowed for absentee/mail-in ballots returned with illegible postmarks to be counted, provided that the ballots were signed on or before Election Day.
• Arizona: Earlier this month, Maricopa County Superior Court Judge John Hannah ordered the Republican Party of Arizona to pay the Office of the Arizona Secretary of State $18,238 in legal fees, finding that the party had acted “in bad faith” in filing a lawsuit last year to postpone certification of the state’s election results. An attorney for the Arizona GOP said the party would appeal Hannah’s order.