A Threat to Election Integrity: Challenge Laws for Absentee Voting
by Natalie Tecimer
On May 19, Michigan’s Secretary of State, Jocelyn Benson, announced that all registered voters will receive absentee ballot applications so that they may vote by mail in the August and November elections. As more states move toward voting by mail as a response to COVID-19, state legislatures and democracy advocates must swiftly address the concern raised by President Trump that a surge in mail-in ballots may yield problems. But, the real concern is not what Trump suggested. States like Michigan should adopt safeguards to protect absentee voters, as well as other voters, against politically motivated efforts to ‘challenge’ their qualification to vote, as those efforts represent a true threat to the integrity of voting by mail.
Michigan allows voter challengers to be designated by a variety of groups, including political parties and “an organized group of citizens interested in preserving the purity of elections and in guarding against the abuse of the elective franchise.” In addition to election-day challenges, challengers can challenge an absentee ballot on the basis that it was submitted by someone not qualified to vote in that precinct because of residency, age, citizenship, or registration. Challengers can also challenge a voter who shows up on election day and claims that they did not mail-in an absentee ballot. All that is required is that the challenger have “good reason to believe” that the voter is not qualified; the challenger is required to show no evidence for the challenge.
Michigan recently rectified another troublesome component of its absentee voting process — the signature matching procedure — suggesting that reforms to the challenge process are feasible. Michigan’s election law requires three formal stages of signature review before absentee ballot signatures are validated. The statute holds that if “it is determined that the signature on the envelope does not agree sufficiently with the signature on the registration card or the digitized signature . . . such vote shall be rejected.” The election inspectors and clerks do not undergo handwriting-analysis training. It was because of arbitrary enforcement and the likelihood of voter disenfranchisement that Priorities USA sued in the Eastern District of Michigan to challenge the state’s prior signature-match process under the First and Fourteenth Amendments, on Equal Protection and Due Process grounds. But Secretary Benson promulgated new guidance and, on May 8, Judge Robert H. Cleland dismissed the case.
Michigan’s Bureau of Elections disseminated a “News Update” on February 27, 2020 that provides “guidelines and best practices” on reviewing absentee ballot signatures. The guidance states that “if there are any redeeming qualities . . . compared to the signature on file, treat the signature as valid” and “slight dissimilarities should be resolved in favor of the voter.” Examples are then provided, such as a curved line compared with an elaborate “John Hancock” signature would be “questionable” but a shaky version of a name is not. The voter must be informed immediately of a rejection, using “any and all contact information available” and the voter can remedy the mismatch by mail or in person depending on the timing.
The remedy for the signature matching process highlights Michigan’s commitment to two important electoral priorities: allowing a maximum number of people to vote and giving voters due process. But, absent reform, the state’s challenger law threatens to undermine those fundamental goals.
In addition to a slew of other election-day challenges, voters can be challenged when they claim they lost, destroyed, or never received the absentee ballot. While recent Bureau of Elections “News Updates” state that voters can complete an affidavit for a lost or destroyed absentee ballot on election day, that voter can still be challenged, despite completion of a sworn affidavit. If a voter is challenged on this basis, the voter must vote with a special “challenged ballot.” Challengers can also challenge an absentee ballot on the basis of voter qualification, seemingly without the voter ever knowing of the challenge. Any voter who registers to vote fourteen days or fewer before the election and does not use a Michigan ID will also be given a challenged ballot. For other election-day challenges, the voter must answer questions about the voter’s qualifications from the election inspector, and if the voter is deemed qualified then the voter is permitted to vote, but the questioning is not required for absentee ballot challenges. When the election inspector determines that the voter is qualified, the inspector can endorse the challenged ballot and put it in the ballot box. While challenged ballots are tabulated the same as unchallenged ballots, if it is discovered that the voter is not qualified, the ballot will be pulled and the vote reduced.
In the case of a contested election, challenged ballots can be reexamined in court on the basis that unqualified voters participated in the election. That has rarely happened in practice — at least so far.
Not only does the challenge process have troubling implications for the November election, but it raises procedural due process concerns. Due process requires “predeprivation notice,” not just “postdeprivation opportunity.” Challengers must have merely “good reason to believe” that a voter is unqualified in order to potentially strip voters of their right to vote. Michigan’s statute provides no appeal opportunity should an election inspector determine that the voter is unqualified. Because every voter will receive an absentee ballot application, circumstances will likely arise where voters who are registered as absentee voters show up to the polls on election day. If challenged ballots are not actually counted for the election, or if they are uncounted in a contested election, the challenged voters will have lost their fundamental right to vote.
Michigan addressed predeprivation notice in the absentee ballot signature matching process, and the sensible remedy of immediately notifying voters of how they can cure their ballots is a stark contrast to the opaque and complex challenge process. Secretary Benson has demonstrated that instituting meaningful and efficient procedural safeguards is not a burden for the state, and similar procedures must be put in place to protect the voters’ interests in the face of voter challengers.
Voter challengers are not new to U.S. elections, nor are the headaches they cause for voters and election administrators. But challenger laws may cause problems in November like never before. A Republican program to recruit 50,000 volunteers in fifteen states will focus on monitoring polling locations and challenging ballots. Not all states allow voter challengers or poll watchers to challenge absentee voters and ballots and several have repealed or amended their challenger laws in recent years. It is up to states, like Michigan, that still have these laws on the books to either revise them or promulgate guidelines to ensure that every voter has an unencumbered right to vote.
