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Stories about Michigan

Michigan Court of Claims invalidates absentee/mail-in ballot rule as improperly established

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.

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Partisan shift on Michigan Supreme Court

The November 2020 election changed the partisan balance on the Michigan Supreme Court from Republican to Democrat control. The partisan balance on the court flipped from 4-3 with Republicans controlling the court to 4-3, with Democrats controlling the court.

The two seats up for election on the court were held by Bridget Mary McCormack (D) and Stephen Markman (R), a Republican-appointed justice who had reached his mandatory retirement age and was not eligible to run for re-election. Justice McCormack held her place as Chief Justice and Elizabeth Welch (D) won Justice Markman’s seat. At the time of the election, four of the seven justices on the court were appointed by Republican governors to fill vacancies. Three of the justices on the court advanced from Democratic conventions before winning general elections.

Although the general election is nonpartisan, political parties in Michigan may nominate candidates for state supreme court elections. In 2020, the Democratic Party nominated incumbent Bridget Mary McCormack and Elizabeth Welch, while the Republican Party nominated Brock Swartzle and Mary Kelly.

In 2020, the Michigan Supreme Court ruled unanimously in 64% of the cases they heard. Justices dissented in 10 of the 28 cases heard by the court and ruled unanimously in the other 18.

Michigan Supreme Court justices serve eight-year terms and must be re-elected if they wish to continue serving. Incumbent judges seeking re-election may file an affidavit of candidacy requesting to be placed on the ballot, while non-incumbent candidates must either file a nominating petition or obtain a partisan nomination at a party convention. Incumbency is noted on the ballot, though party affiliation is not.

In the event of a midterm vacancy, the governor appoints a temporary replacement to serve until the next general election. At the governor’s request, the state bar’s standing committee on judicial qualifications interviews, evaluates, and rates all candidates, submitting a confidential report to the governor.

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U.S. Rep. Mitchell leaves Republican Party

U.S. Rep. Paul Mitchell (R-Mich.) announced on Dec. 14 that he was leaving the Republican Party and changing his affiliation to independent. Mitchell cited differences with the Republican Party leadership for his departure from the party. As a result of leaving the party, Mitchell’s positions on the Transportation and Infrastructure Committee and the Armed Services Committee were revoked.

In a letter to Republican National Committee Chairwoman Ronna McDaniel and House Minority Leader Kevin McCarthy, Mitchell said, “I believe that raw political considerations, not constitutional or voting integrity concerns, motivate many in party leadership to support the “stop the steal” efforts, which is extremely disappointing to me…as a result, I am writing to advise you both that I am withdrawing from my engagement and association with the Republican Party at both the national and state level.”

Mitchell is the second member of Michigan’s congressional delegation to leave the Republican Party during the 117th Congress. U.S. Rep. Justin Amash (L) became an independent in July 2019 and joined the Libertarian Party in April.

Mitchell was first elected to represent Michigan’s 10th Congressional District in 2016. He did not run for re-election in 2020 and will retire from Congress at the end of his term. Republican Lisa McClain will represent the district once she is sworn into office in January.

With Mitchell’s departure from the Republican Party, the current partisan breakdown of the U.S. House of Representatives is 233 Democrats, 195 Republicans, one Libertarian, and one Independent, with five vacancies.

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Meijer defeats Scholten in MI-03 

Peter Meijer (R) defeated Hillary Scholten (D) in Michigan’s 3rd Congressional District. Incumbent Justin Amash (L) did not run for re-election. Amash was elected to represent the district as a Republican and changed his affiliation to independent in 2019 and Libertarian in 2020.

Michigan’s 3rd is one of 10 House seats that have changed party hands as a result of the 2020 elections. Republicans have won eight of those seats and Democrats, two. Before the election, Democrats had a 232-197 majority in the chamber.

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Elissa Slotkin wins a second term in Michigan’s 8th Congressional District

Incumbent Elissa Slotkin (D) defeated Paul Junge (R) and Joe Hartman (L) in Michigan’s 8th Congressional District. 

Slotkin was first elected in 2018 after defeating incumbent Mike Bishop (R) 51% to 47%. The 8th District is one of 30 House districts represented by a Democrat in 2020 that Donald Trump (R) won in 2016. In the 2016 presidential election, Trump defeated Hillary Clinton (D) 51% to 44% in the 8th District.

Both the Democratic Congressional Campaign Committee (DCCC) and the National Republican Congressional Committee (NRCC) added this district to their target lists ahead of the election.



Fred Upton wins re-election in Michigan’s 6th Congressional District

Incumbent Fred Upton (R) defeated Jon Hoadley (D), John Lawrence (G), and Jeff DePoy (L) in Michigan’s 6th Congressional District. Based on unofficial returns, Upton received 59 percent of the vote and Hoadley received 38 percent. Upton was first elected in 1986. 

In 2018, Upton defeated Matt Longjohn (D) 50.2% to 45.7%. That was Upton’s narrowest general election margin of victory to date; he had previously defeated Democratic challengers by an average of 29 percentage points.

In the 2016 presidential election, President Donald Trump (R) defeated Hillary Clinton (D) 51% to 43% in Michigan’s 6th. The district contains one Pivot County—Van Buren County—that voted for Barack Obama (D) in 2008 and 2012 and Trump in 2016

Heading into the election, Democrats had a 232-197 majority in the House. Republicans needed to win a net 21 seats to win control of the chamber.



Gary Peters wins re-election in Michigan

Sen. Gary Peters (D) defeated John James (R) and three other candidates in the general election for United States Senate in Michigan. Unofficial results showed Peters with 49.7 percent of the vote and James 48.4 percent.

Peters was first elected in 2014, defeating his Republican opponent 55% to 41%. This was the second time James ran for U.S. Senate in Michigan. He challenged incumbent Debbie Stabenow (D) in Michigan’s Senate election in 2018 and lost 46% to 52%. 

Former Vice President Joe Biden (D) endorsed Peters and President Donald Trump (R) endorsed James. Three independent outlets rated the race as Lean Democratic as of November 3rd, 2020.

Michigan was one of two Senate seats Democrats were defending in states Trump won in 2016, along with Alabama. Leading up to the 2020 elections, Republicans had a 53-47 majority in the Senate. Thirty-five of 100 U.S. Senate seats were up for election this year. Of the 35 seats up, 23 were held by Republicans and 12 by Democrats, giving Republicans greater partisan risk. Democrats needed to win a net four seats to win an outright majority in the chamber.



Michigan board approves circulation of recall petition against state attorney general

The Michigan Board of State Canvassers on October 15 approved the petition language for a recall against Michigan Attorney General Dana Nessel (D). The board previously rejected five recall petitions against Nessel in 2020. Supporters of the recall effort need to submit 1,046,006 signatures within a 60-day period to require a recall election. The 60 days begin on the first day that signatures are collected. The recall petition must be submitted to the office of the Michigan Secretary of State no later than 180 days after it was approved by the board.

The recall petition was submitted by Chad Baase on September 25. Michigan laws state that the reason for recall must be deemed factual and clear by the Board of State Canvassers before the recall petition can be placed in circulation. The board does not document a rationale for their determination, only the judgment of rejected or approved.

The recall petition criticizes Nessel over her announced plans of ramping up efforts to enforce Gov. Gretchen Whitmer’s (D) Executive Order 2020-148. The executive order provided enhanced protections for residents and staff of long-term care facilities during the COVID-19 pandemic.

In 2020, Baase has filed 12 recall petitions against four statewide officials. Five have been approved for circulation, five were rejected in clarity hearings, and two were withdrawn.

Since the COVID-19 pandemic began in March, four statewide officials in Michigan have seen recall petitions submitted against them. In total, 31 recall petitions have targeted the four officials. In comparison, Ballotpedia tracked no recall efforts against any Michigan statewide official in 2019.

This year, Whitmer has had 20 recall petitions submitted against her. Nine of those petitions have been approved for circulation, 10 efforts were rejected, and one effort was withdrawn by the petitioner. Two recall petitions have been introduced against Lt. Gov. Garlin Gilchrist (D). One petition has been approved for circulation, and the other was rejected. Three recall petitions have also been introduced against Secretary of State Jocelyn Benson (D). One effort has been approved for circulation, one effort was withdrawn by the petitioner, and the other was rejected.

Michigan is under a divided government. A state government trifecta exists when one political party simultaneously holds the governor’s office and both state legislative chambers. Republicans control the state Senate by a 22-16 margin and the state House by a 58-51 margin with one vacancy. Whitmer was elected as Michigan’s governor in 2018 with 53.3% of the vote.

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