GUEST COLUMN: There is nothing illegal about Secretary of State’s decision

Jordan Genso

On May 19, 2020, Michigan Secretary of State Jocelyn Benson announced that the Bureau of Elections would mail all registered voters an absentee ballot application ahead of the August and November elections if they are not already on the permanent absentee voter list.

On May 20, 2020, President Trump tweeted false information about it, and threatened our state if the decision was not reversed. That same day, Livingston County Clerk Elizabeth Hundley, also sent out a statement opposed to Benson’s decision.

As a candidate for county clerk myself, I had naively hoped that Benson’s decision would be an opportunity to demonstrate that bipartisanship still lives, especially when it comes to our fundamental right to vote. Republican Secretaries of State have made the same decision as Benson, so there was no need for it to be a Republican-versus-Democrat polarizing fight. Sadly, my hopes turned to disappointment when I saw Hundley’s response.

Granted, I understand the position she is in. She is the top elections official in a county that has historically seen a 3-to-2 ratio of Republican-to-Democratic voters. With 30 percent of our voters casting absentee ballots — about 60 percent of which are from Republican voters — Hundley doesn’t want to criticize absentee voters. Thus she stated:

“I support the right of all registered voters to cast an absentee ballot and encourage all voters who want to vote using an absentee ballot to do so. The Michigan Constitution was amended by the passage of Proposal 18-3 in November of 2018. As a result, voters have the right to vote an absentee ballot without a reason.”

But if she stuck to “[encouraging] all voters who want to vote using an absentee ballot to do so”, she would have needed to support Benson’s decision. With the President threatening our state if Benson’s decision is not reversed, opposing absentee voting has become a litmus test for Republicans, so Hundley needed to find a fig leaf justification for appearing to be on the side of the President.

The fig leaf is her claim that the Bureau of Elections does not have the legal authority to mail everyone an absentee ballot application, and that is why she opposes Benson’s decision. She claims the legislature would need to change the law first, yet she conspicuously fails to call on them to do so.

Hundley’s Argument:

“As recent as our Presidential Primary on March 10, 2020, a city, township, or county clerk was prohibited by various sources of law in Michigan from mailing an absent voter ballot application to all registered voters within their jurisdiction. An absent voter ballot application requires a verbal or written request from the voter. Regardless, the Bureau of Elections proceeded to mail out absent voter ballot applications to all registered voters impacted by a Special Election on May 5, 2020.

Without a change in law and absent an executive order by the governor granting authority, the Secretary of State began the process of mailing absent voter ballot applications in advance of the August and November elections to every registered voter who is not on a permanent absentee voter ballot application list. The process of mailing the applications to voters began before the Secretary of State even notified city, township, and county clerks that the Bureau of Elections was going to do so.

The Michigan Constitution provides the legislature the authority to enact laws governing absentee voting. Mich. Const. art 2, §4. Every Michigan resident should be concerned when the executive branch of government unilaterally determines what laws are valid and will be followed and what laws will be blatantly disregarded even during a time of crisis.”

Let’s subject this argument to rational scrutiny.

First off, qualifying her statement by saying that “a city, township, or county clerk” is prohibited from doing something is a non sequitur, when using it as a basis for saying the Bureau of Elections is prohibited.

Second, I wish Hundley had cited the specific “sources of law” she is using as the basis for her claim. MCL 168.758a thru MCL 168.769 deal with absentee voting, and MCL 168.759 is the most relevant to the applications, but there is nothing in these statutes that requires a request to the Bureau of Elections prior to them sending out the applications.

Third, the strongest argument in support of this perceived requirement is the appeals court case that concluded that the Macomb County Clerk did not have the authority to send unsolicited absentee ballot applications to some registered voters in 2006. But that ruling has little connection to Benson’s decision, as it applied to local clerks, not to the Bureau of Elections. If that ruling constrains the Bureau of Elections as well, then it must also be illegal for the Secretary of State’s website to provide voters with the absentee ballot application, as it is not one of the methods explicitly stated in MCL 168.759(5) as a way for voters to receive the application. I doubt Hundley would say it is illegal for the Secretary of State to provide the application form online, but that’s the conclusion one would have to reach if her argument was valid.

Fourth, Hundley correctly points out that Benson’s decision for August and November already occurred a few weeks ago for the May elections, demonstrating its feasibility. When that decision was announced, media coverage reveals that Republicans did not claim it was illegal. So determining retroactively that it must have been illegal then is nothing but a tortured logic with no purpose beyond getting Hundley in line with the President’s attack on voting from home.

Fifth, note that Hundley fails to identify which laws the executive branch is supposedly ignoring. That’s because there is no law that prohibits the Secretary of State from providing absentee ballot applications.
Hundley wants us to believe that it’s the legislature’s decision whether everyone receives an application. But as the top election official in the county, she should then be a leader calling on the legislature to do just that. She needs to stop hiding behind the fig leaf of viewing Benson’s decision as outside the Secretary of State’s authority, and instead step up and take a clear position on whether or not she wants all registered voters in Livingston County to receive absentee ballot applications.

At a time when we are finding ways to limit our interactions with other people, our Secretary of State has adopted a common sense policy to help with social distancing – a policy that Republicans across the country have done as well – yet we have a county clerk who instead is willing to grasp at straws in order to find some excuse to oppose to it.

Jordan Genso is the Democratic candidate for Livingston County Clerk. He is currently the Treasurer for the Brighton District Library Board of Trustees, serves on the Brighton City Zoning Board of Appeals, is a former President of the FlexTech High School Board of Directors, and was the 2014 Democratic candidate for the 47th State House District.

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