Michigan judge strikes down Benson voter signature match guidance — again

• Michigan judge rejects guidance from Secretary of State Jocelyn Benson’s that clerks should initially presume absentee ballot signatures are valid
• But judge upheld separate rules that give clerks broad discretion to consider why a voter signature might not match the version on file
• An 2023 election law helped save Benson’s 2022 rule that detailed how clerks can compare signatures

LANSING — A directive by Michigan Secretary of State Jocelyn Benson's office for clerks to initially presume the validity of absentee ballot signatures was "a foul under Michigan law,” a state judge ruled Thursday.

The 10-page opinion from Michigan Court of Claims Judge Christopher Yates struck down that guidance, a victory for Republicans who sued and have repeatedly contested various election protocols from Benson's department. 

But Yates, an appointee of Democratic Gov. Gretchen Whitmer, preserved other state rules that offer clerks broad discretion to accept signatures that don’t exactly match what’s on file.

Both sides of the suit cast the decision as a win. 

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Michigan Republican Party Chair Pete Hoekstra accused Benson of attempting to “pick and choose which election laws to enforce and which to ignore.”

"The signatures of absentee ballot voters have to and should be verified — it's common sense," Hoekstra said in response to the ruling. 

But Benson spokesperson Angela Benander said the court decision “reaffirmed that it was legal for the department to implement signature verification rules.” 

Clerks “carefully review every ballot signature to ensure they agree sufficiently with the signature on file before accepting any ballot,” she said. 

At issue is how local election officials should review signatures on absentee ballot applications and envelopes to ensure they were submitted by the actual registered voter. 

Under a state law amended last year by the Democratic-led Legislature, a signature is "invalid only if it differs in significant and obvious respects from the elector's signature on file.”

The Michigan Department of State’s subsequent December 2023 guidance told election clerks that “voter signatures are entitled to an initial presumption of validity.” 

But Yates ruled that guidance was “incompatible with the Constitution and the laws of the state of Michigan.” 

The guidance formed the spearpoint of a suit brought in March by attorneys representing the state GOP and Republican National Committee. The litigation is the latest chapter of a long-running fight over absentee ballot signature matching.

In 2021, the Michigan Court of Claims rejected a previous guidance Benson’s department had issued in 2020 amid the COVID-19 pandemic and an unprecedented influx of absentee votes. 

In that case, the state had told clerks to presume voter signatures were valid, but the guidance was struck down because Benson’s department hadn’t followed Michigan’s traditional rulemaking process.

Republicans have argued that relaxed signature match rules amounted to a Democratic attempt to subvert elections. However, a bill in the then-Republican controlled legislature in 2021 dropped a stringent signature-matching requirement after feedback from local clerks.

The difference in the 2023 guidance, attorneys for Benson had argued, was that this time the state instructed clerks to only presume validity initially – not throughout the signature review process. But Yates didn’t buy it.

“With apologies to Gertrude Stein … a presumption is a presumption is a presumption,” he wrote in the order. “Whether the guidance includes a gentle nudge instead of a hip check, it’s still a foul under Michigan law.”

Other rules that prescribe what clerks can consider when verifying signatures survived challenges in the GOP lawsuit.

Among other rationales, clerks can consider the voter has aged, the surface they signed on, name abbreviations and “any other plausible reason given by the voter that satisfies the clerk when following up on a questionable signature.”

Yates described these as “commonsense reasons” to allow signature variations and said the rule “modestly offers real-world explanations consistent with the generous approach to signature verification that our legislature has proscribed.”

Democrats and voting rights activists have made changes to state election law since 2020 aimed at both alleviating the burdens clerks face from new voting options and codifying some election procedures. Voting rights advocates have cast them as essential protections, while critics argue they could open the door to election fraud, though little has been offered to substantiate those claims.

A bill in an election law package passed last year specified that “slight dissimilarities” in signatures “must be resolved in favor of the elector.”

Yates said Benson’s broader signature match rules, which went into effect in December 2022, reasonably fit the new statute, which became law in February.