A Michigan judge ruled last week that Democratic Secretary of State Jocelyn Benson violated state law when she circumvented the legislature with unilateral orders on absentee voting.
Last year, as Democrats across the country implemented last-minute rule changes ahead of the November election, Benson issued a directive that local clerks count with a presumption of validity.
“Signature review ‘begins with the presumption that’ the signature on an absentee voter ballot application of envelope is valid,” Benson ordered in October. Only ballots signed with “multiple significant and obvious” inconsistencies ought to go under further review.
Detroit-area Judge Christopher M. Murray, however, ruled last week that Benson’s order violated the Michigan Administrative Procedures Act (APA). Murray argued Benson’s instructions were “rules” passed without following the proper procedures in place.
“A ‘rule’ not promulgated in accordance with the APA’s procedures is invalid,” Murray wrote. “An agency must utilize formal APA rulemaking procedures when establishing policies that ‘do not merely interpret or explain the statute or rules from which the agency derives its authority,’ but rather ‘establish the substantive standards implementing the program.’”
“I’m glad the court sees Secretary of State Benson’s attempts at lawmaking for what they are — clear violations of her authority,” said Republican state Rep. Matt Hall in a statement on the decision. “If she wants to make changes like these, she needs to work with the Legislature or properly promulgate them through the laws we have on the books — in this case the Administrative Procedures Act. The Legislature is an equal branch of government charged with crafting laws.”
Michigan’s election procedures came under scrutiny in a state where Democrats capitalized on the coronavirus pandemic to justify late rule changes to their benefit. According to WWMT, a local news outlet in western Michigan, more than 3.1 million voters in the state cast their ballots absentee out of 7.7 registered residents.
President Joe Biden ended up carrying the state, captured by his opponent four years ago, by a razor-thin margin. Biden flipped the state by less than 3 percent. Trump won the state by less than 1 percent in 2016.