Nov. 1, 2024 | This Week in Government: Officials Underscore Michigan’s Election Protections

Election officials and voting rights organizations emphasized the nonpartisan work going into election protection four days ahead of Election Day.

Those assurances were particularly relevant the day after a non-citizen was caught casting a ballot during early voting in Ann Arbor (See Gongwer Michigan Report Oct. 30, 2024). Although that individual is facing criminal charges and potential deportation, the state’s structure of its same-day registration system has been called into question because there is no mechanism to void the ballot.

“In Michigan, we have a secure an accurate election system, and in recent elections Michiganders have gone to the ballot box to expand access to voting,” said Roland Leggett, election protection manager for the Michigan League of Conservation Voters Education Fund Democracy for All Team.

Domonique Clemons, Genesee County clerk and register of deeds, said that clerks across the state are dedicated to carrying out a secure and accurate election.

“There are hundreds of steps and procedures that our clerks are following to make sure that the integrity of our election is intact, and that’s no small task,” Clemons said. “This is a critical election for the voters as well as the clerks in all 83 counties… these are our neighbors. These are our friends. These are our colleagues. They have been training consistently to make sure that we are fully prepared.”

Clemons said that Michigan uses paper ballots, which means that every vote has a physical record, allowing errors to be caught and corrected before or at the county canvass. He also called attention to the importance of certified election challengers to make sure that every check and balance is in place.

One of the major disputes after the 2020 election was the near refusal of the Republican members on the Wayne County Board of Canvassers to certify the votes there. New laws enacted since then limit the powers of the boards to oversight of the canvass, making it clear they have no authority to do more.

“After the election, the bipartisan County Board of Canvassers, who is appointed by the Board of Commissioners, will compare our physical tabulation records to the unofficial results that are produced on Election Night, and they’re going to correct any errors before certifying the election to make sure that everything ‘s done right and make our results official,” he said. “The role of the Board of Canvassers is to double check all of the math and procedures to make sure that forms are filled out in the certification process. And that role is clearly defined in our state law.”

ACLU Michigan Executive Director Loren Khogali underscored that every county board of canvassers has a legal obligation to certify any election based solely on returns.

“The law does not authorize members of Boards of Canvassers to withhold certification based upon speculation, theories or even evidence pertaining to the accuracy of reported returns,” she said. “There are alternative methods that are available to raise those concerns over the course of this election, and the ACLU will be carefully monitoring the activities of Boards of Canvassers through November.”

Paula Bowman, co-president of the League of Women Voters Michigan, said that her organization would also be monitoring the canvassing process.

“We all have a role to play to ensure our elections are accurate and transparent and every vote is counted,” she said.

Shira Roza, elections protection director for Promote the Vote Michigan, said that Michigan voters have taken advantage of early voting opportunities provided by Proposal 2018-3 and Proposal 2022-2.

“Voters now have more opportunities for registration and more options for voting than ever before,” she said.

As of Wednesday evening, more than 1.7 million voters had already returned their absentee ballots, and more than 620,000 voters had already voted at an early voting site. That means more than 32% of registered voters have cast a ballot in the election, Rosa said.

Roza also highlighted the ability to process and tabulate absentee ballots before election day, which will result in a more reasonable workload for polls workers on Election Day and earlier results.

Dessa Cosma, executive director for Detroit Disability Power, an organization focused on building political power among those with disabilities, discussed voting accessibility.

“Disabled voters have the right to vote no matter their disability type or their guardianship status,” she said. “Disabled votes have the right to vote privately and independently. We have the right to accessible voting locations and absentee voting. We have the right to get assistance with filling out and casting our ballot, so long as it’s not our employer or our union rep helping us.

Pastor Velma Jean Overman of Operation Refuge, who works in western Wayne County to increase civil and civic engagement and is the first vice president of Western Wayne County NAACP, said that access to voting was key to representation.

“It takes all of us to do this work and to deliver this robust participation in our safe and accurate elections, and we are going to be at work in these last days before Election Day and beyond,” she said. “Democracy belongs to all of us.”

As high early voter turnout prompts questions about when Michiganders – and the nation – will know which way their swingiest of swing states tilts in the presidential election, Secretary of State Jocelyn Benson said Monday that voters can expect to see unofficial election results within 24 hours of the polls closing on Nov. 5.

Several factors weigh into the process of processing and tabulating ballots for local clerks to post unofficial results on election night, but Benson said this year, all the indicators she’s seen point to a relatively timely turnaround.

“In 2020, it was a close election, and we knew within 24 hours of the polls closing, late in the day on Wednesday, what the unofficial results were,” she said. “So that’s my rubric. We know in 2020 we had two thirds of our citizens voting from home, and we knew clerks couldn’t begin processing those ballots until Election Day. And we also know it was our highest turnout ever in history, and in a global pandemic, we had our results within 24 hours of the polls closing. So based on that, I know we’ll at least have it by then.”

During the Monday press briefing where Benson made her 24-hour prediction, she said recent changes in election law, like pre-processing of early and absentee votes, will make it easier to achieve timely counting in what’s expected to be a historically high-turnout election.

“We have a number of factors in our favor, most significantly, the fact that pre-processing starts today, not on Tuesday, November 5,” Benson said. “I anticipate many communities, probably most of our communities, will be finished tabulating all of their ballots on election night.”

Not all local clerks have opted into the pre-processing method. Warren City Clerk Sonja Buffa announced recently that she would not begin processing ballots until Election Day, making her sizeable jurisdiction the only one in Macomb County not to pre-process. In statements to the press, Buffa has said she believes waiting to process will lead to a more secure and accurate count, an assertion other election officials, including Macomb County Clerk Anthony Forlini, have disputed.

Benson said although she had hoped Buffa would take advantage of the opportunity to pre-process her city’s ballots, the state will be available to support Warren’s election workers regardless.

“We have been in touch with the Warren clerk and offered her any support that she needs to ensure the efficient tabulation and secure tabulation of the votes in her city. We had certainly hoped that she would choose to take advantage of the option to begin pre-processing ballots returned to her through the mail or at a local drop box like most of the state prior to election day,” Benson said. “I won’t pass comment on the decision that she made, which is within her purview to make. I think when it comes to election night, if there is one community that is lagging behind others, and it’s Warren, we’ll be open about that.”

During the press conference, Benson also addressed a recent tiff with billionaire Elon Musk, who she called out on X, formerly Twitter, for perpetuating misinformation about Michigan’s elections and their security. Musk, who has become an open supporter of former President Donald Trump, called Benson a “blatant liar” attempting to cover up that Michigan’s Qualified Voter File contains more names than there are citizens of the state.

Benson replied to Musk several times, explaining Michigan’s procedures for removing ineligible voters from the QVF. When asked on Monday what she made of someone with Musk’s platform disseminating misinformation about elections, Benson was frank.

“I would have hoped that someone as influential as Mr. Musk would use that influence to help spread actual factual information about our elections,” she said. “We hope others will choose to do that, and some have, but for every citizen, you can go to michigan.gov/electionfacts to see all potential conspiracy theories put to rest through the facts and the details of what we do to protect the security of our elections. I really encourage all citizens to seek out multiple and trusted sources of information and also to be prepared for an uptick in misinformation and confusing statements and allegations to occur in the days ahead.”

Retailers told a Senate panel Wednesday that legislation requiring businesses to be licensed to sell tobacco and vaping products would unfairly target them, while bill supporters countered it would help reduce tobacco use among minors.

Four bills in a tobacco cessation package (SB 651, SB 652, SB 653, and SB 654) came before the Senate Regulatory Affairs Committee for testimony only.

The divided testimony Wednesday centered on SB 651 and SB 654. The first bill deals with proposed licensing requirements for retailers. The latter would sunset penalties for minors under age 21 for possessing, purchasing, or attempting to purchase tobacco and vaping products.

Campaign for Tobacco-Free Kids Regional Director Jodi Radke said the statewide failure rate of compliance checks statewide is currently about 27%, referencing failure rates from multiple communities.

“Make no mistake, tobacco is still a big problem in Michigan,” Radke said. “The bills before you here today are part of a comprehensive solution to strengthen Michigan’s weak tobacco laws.”

Sen. Sam Singh (D-East Lansing) said Michigan is one of 10 states without a retail license for tobacco products. He added that tobacco and vaping products are regularly getting into the hands of youth, which school officials across the state have been grappling with, as well.

Singh explained penalties were removed under SB 654 because penalizing minors would not solve the problem. He compared the penalties to former misdemeanor penalties that were in place for minors consuming alcohol, which he said were not a deterrent.

Prior to the hearing, business leaders told reporters they had significant concerns with the bills as written.

Mark Griffin, president of the Michigan Petroleum Association/Michigan Association of Convenience Stores, described the bill package as not being ready for prime time.

“These bills don’t address the real problem, and that’s the access to tobacco products that minors are getting,” Mark Griffin said.

Mark Griffin said the group’s members are having an onerous licensing scheme pushed on them by lawmakers.

In later testimony before the panel, he called the licensing provisions a “money grab” and questioned whether the fees would be used for enforcement purposes.

Amy Drumm, senior vice president of government affairs for the Michigan Retailers Association, said the licensing requirements still need a lot of work to ensure they are workable.

The possibility of having rolling deadlines for licenses also is a concern, she said, especially for retailers that operate multiple locations since it could become difficult to keep track of license expiration dates.

Jerry Griffin, vice president of government affairs for the Midwest Independent Retailers Association, also questioned the proposal.

“It simply creates a new licensing fee to sell a product that our members and their members have been selling legally for decades, and the money is going to go towards enforcing that we sell that product legally, which, again, we have been doing for decades,” Jerry Griffin said.

He added that the licensing costs can be significant to smaller mom and pop shops, to the point where it could become tough to even operate with additional licensing burdens.

Committee members adopted an S-1 substitute for SB 651 that made several changes to the proposed licensing language, which Singh said was done following conversations with retailers.

Key changes were made to the penalties for violations of selling to minors within a three-year period.

Under the original bill, a second violation would have been a $2,000 fine and a 30-day license suspension. The S-1 changed this to a $2,000 fine.

License suspension would not occur until a third violation within 36 months under the substitute, with a seven-day suspension and a $3,000 fine. Penalties from there would increase to a 30-day suspension and a $4,000 fine for a fourth violation, to a one-year suspension and $5,000 fine for a fifth violation and a $5,000 fine and license revocation for a sixth violation.

The license suspension provisions under the original bill called for a 30-day suspension upon a second violation, a one-year suspension for a third violation and license revocation for a fourth violation within 36 months. The fines in the original bill were $2,000 for a second violation, $2,500 for a third and $3,000 for a fourth.

A new $100 fine for clerks that sell to minors was added under the substitute, while a $500 yearly licensing fee was also added for retailers.

Language governing compliance checks was changed from requiring two under-age buys per year to instead mirror marijuana statute to “regularly inspect establishments to ensure compliance.”

The original bill allowed for licenses to be obtained yearly. Under the substitute, retailers could purchase a three-year license and would be provided a 60-day grace period to apply for renewal after it expires.

Minou Jones, chair of the Detroit Wayne Oakland Tobacco-Free Coalition, was among those urging the Legislature to act.

“Detroit is a tobacco swamp,” she said.

Jones added that 85% of Detroit residents live within a one half-mile of a tobacco retailer and that in 2020, there were about 1,000 tobacco retailers in the city, far beyond other forms of retailers.

“This is a problem, because most tobacco is purchased from neighborhood stores where the tobacco industry spends millions on advertising and marketing,” Jones said.

Robert Zora, general counsel for Wild Bills Tobacco, said the bills seem to target larger retailers such as their company.

He said there is sizeable staff turnover at a company like Wild Bills, and the three-year look back period would hurt their business if there were multiple violations at a location that may have had significant turnover. Zora said multiple violations over a look back period could be a death knell for an individual store.

“To close a business like that for 30 days or even seven days, as a retail business, is very hard to recover from,” Zora said.

The Department of Environment, Great Lakes, and Energy’s appeal of a Court of Appeals ruling – which found rules setting limits on PFAS in drinking water were issued without following the protocols of the Administrative Procedures Act – is among six cases scheduled for oral argument before the Supreme Court in November.

The cases will commence in person before the court at 9:30 a.m. Wednesday, Nov. 13, but will be livestreamed.

3M Company v. EGLE (MSC Docket No. 166189) will be the first case of the morning before the bench. The lawsuit comes to the high court following a divided Court of Appeals holding that the department failed to issue a proper regulatory impact statement as the APA requires and as a result the rules setting limits on PFAS were invalid (See Gongwer Michigan Report, Aug. 23, 2023).

Although EGLE issued a regulatory impact statement with the rules, it did not address costs related to groundwater cleanup, which the rules would affect.

EGLE argued it was not required to estimate the costs to businesses that would necessarily occur under Part 201 of the Natural Resources and Environmental Protection Act because it lacked the necessary information to make an estimate. It also argued that the agency only needed an impact statement as it related to the proposed rule, which dealt with drinking water, and not on the groundwater cleanup that could be required because of the new rule.

The majority on the Court of Appeals disagreed. EGLE now appeals on the basis that the appellate court erred.

The following cases will be heard following 3M v. EGLE on November 13:

• C-Spine Orthopedics PLLC v. Progressive Insurance Company (MSC Docket No. 165537-8): This case involves a dispute over responsibility for paying out personal injury protection benefits. The trial court at first denied the defendant insurance company’s motion for summary disposition, but the court later discovered the counter assignments at issue in the case were signed after the lawsuits were filed. The court then granted summary disposition to the defendant, holding the plaintiff lacked standing. A Court of Appeals panel in 2-1 published decision reversed and remanded the case. The high court has been asked to address whether the plaintiff indeed had standing and is a real party of interest.
• Parie Wallace v. Suburban Mobility Authority for Regional Transportation [SMART] (MSC Docket No. 165964): Another personal injury protection benefits case where the plaintiff received treatment for injuries sustained in the crash and incurred bills from various providers. The trial court denied in part the defendant’s motion for summary disposition on the basis of recession for the assignment of care to other providers. The Court of Appeals reversed in part in a published opinion and remanded the case for further proceedings. The high court has been asked to address whether a plaintiff has standing and is a real party in interest if, before filing a cause of action, they had assigned rights to that cause of action to medical providers but, after filing the cause of action, the plaintiff and medical providers rescind the assignments.
• People v. Spears (MSC Docket No. 165768): The defendant in this case pleaded guilty to second-degree murder and felony-firearm, which he was sentenced to 20 to 50 years for the murder and a consecutive two-year term for the firearms charge. The Court of Appeals and the high court both denied the defendant’s applications for leave to appeal in 2017. But two years later, the defendant filed for relief from judgment, which the high court remanded on leave granted. Still, the appellate court affirmed the lower court’s denial of relief. The high court has been asked to hear the case again and address whether the trial court properly advised the defendant of his rights at trial and whether “without justification or excuse” was an element of second-degree murder as a basis for his guilty pleading.
• Norfolk Southern Railway v. Metro Fibernet LLC (MSC Docket No. 165658): This case asks whether the defendant must obtain permission from the plaintiff to install fiber optic cables 15 feet underground and below a railway crossing. The circuit court granted the defendant summary disposition, holding the Railroad Code did not apply but also that the plaintiff had not identified another statute under which the defendant had to obtain permission. The Court of Appeals affirmed, and the high court has been asked to address whether the defendant utility company must comply with the plaintiff’s approval process before installing a utility line.
• Midwest Valve & Fitting Company v. Detroit (MSC Docket No. 165726): The case involves the city’s imposition of annual charges on owners of commercial property and multiunit residential property within the city’s limits. The plaintiff, an owner who paid the charges, claimed they are taxes in violation of the Headlee Amendment. The city, however, says they are permit fees. The trial court granted partial summary disposition to the defendant on the Headlee claim, but dismissed the plaintiff’s remaining claims. The plaintiff appealed, but the Court of Appeals affirmed the trial court in a published opinion. The high court has been asked to address whether the challenged annual charges violate Headlee and/or the Prohibited Taxes by Cities and Villages Act.

The number of public school students eating breakfast or lunch at K-12 schools has increased by 26% and 20%, respectively, the Department of Education said Monday.

The increase during the last school year came during the first year the state offered universal free breakfast and lunch to 1.4 million students.

Specifically, the number of students eating breakfast at school daily increased by 100,000 from 379,000 to 477,000. The number of children eating lunch at school daily increased by 140,000, from 723,000 to 867,000.

“Our children need to eat a healthy breakfast and lunch in order to learn,” Superintendent of Public Instruction Michael Rice said in a statement. “Access to nutritious meals is good for Michigan students’ health and good for their academic achievement.”

Michigan joins seven other states in providing free breakfast and lunch to public school students.

“In Michigan, all 1.4 million public school students can eat free breakfast and lunch at school, saving their families more than $850 a year on groceries, per kid,” Gov. Gretchen Whitmer said in a statement. “I am so proud that the number of students eating breakfast and lunch increased significantly last year, up a combined 240,000 kids. We know that it’s easier to focus on learning in class with a full belly, and we believe that every child, no matter how much money their family has, deserves to eat. I want to thank our school food service workers for the work they do every day to feed our kids. Together, let’s keep saving families money and supporting our students.”

On the district level, Utica provided 976,098 breakfasts to student last year, or 5,499 a day, and 2,143,682 lunches, or 11,312 a day.

At Brandywine Middle/Senior High School in Southwest Michigan, student breakfast counts increased by 125% from October 2022 to October 2023 – up from an average of 35 students eating breakfast daily to an average of 79. Districtwide breakfast participation also increased significantly.

“As a district, we are thrilled to see a 30% increase in student participation in our breakfast program from the 2022-23 to 2023-24 school year,” said Superintendent Travis Walker. “We know the benefits of starting the day with a healthy breakfast – improved concentration, higher energy levels, and better overall health. A nutritious breakfast sets our students up for success both physically and academically, helping them focus and engage more effectively in the classroom. We are proud to be on pace for another increase this year, as we continue prioritizing the health and well-being of our students.”

Some have criticized the program for using tax dollars to pay for meals for families that could otherwise afford it. Advocates for non-public schools have also questioned their exclusion from the program.