By Alan Dunst, MFE volunteer contributor | April 1, 2024
As we’ve seen with increasing frequency, people sometimes find what they wish to find in the law, depending on how far they are willing to twist the language to fit their purposes. "Show me the man and I will find you the crime," said Joseph Stalin’s most ruthless and longest-serving secret police chief, Lavrentiy Beria. To avoid trap doors set by legal shysters, court justices pull back the covers of legal wording in order to unveil the intent of the law. This article examines three ways in which a recent memo from Jonathan Brater, Director of Michigan's Bureau of Elections, appears to tread on the intent of the law.
On February 12, Director Brater issued a memo to all Michigan township and municipal clerks. In his memo, he seemingly provided corrective action to election integrity issues. On a closer look, however, Brater’s actual purpose may have been to hamstring the clerks from taking decisive action and to threaten citizens' ability to bring their concerns about the voter rolls to their local clerk.
In October 2023, a concerned citizen submitted an affidavit to the Waterford Township. The residential addresses of 1,095 voter registrants, the election integrity volunteer claimed, were potentially inaccurate. He cited Michigan Election Law 168.512 as providing him the right to challenge the questionable registrations in empty lots and commercial buildings.
Many registrants had long ago sold the homes where they were registered, or they had filed change of address forms with the U.S. Postal Service and moved out-of-state.
After all, Michigan’s Election Law (168.509r) requires Michigan’s Secretary of State to “establish and maintain the computer system and programs necessary to the operation of the qualified voter file.” This law mandates county, city, and township clerks to “verify the accuracy of the names and addresses of registered electors in the qualified voter file.”
Upon receiving the affidavit, the clerk duly investigated each occurrence. The clerk, as required by Michigan Compiled Law §168.512, sent certified letters to each of the 1,095 questionable registrants. To help perform this voter-roll-clean-up function, the clerk hired extra workers at a cost to the township of approximately $10,000.
MCL 168.512. Any elector of the municipality may challenge the registration of any registered elector by submitting to the clerk of that municipality a written affidavit that such elector is not qualified to vote, which affidavit shall specify the grounds upon which the challenged elector is disqualified. Upon receipt of such affidavit, the clerk shall forthwith send by registered or certified mail to the challenged elector at his registered or last known address a notification of the challenge, which shall include the grounds for such challenge as stated in the affidavit. The challenged elector may within 30 days appear before the clerk and answer the questions and take the oath required of persons challenged on the same grounds at election, or in lieu of appearing in person the challenged elector, within a like period of time, may elect to file with the clerk an affidavit setting forth specifically his qualifications as an elector of the municipality and answering the grounds of the challenge. If within the 30-day period the person challenged shall fail to appear and be sworn or to file an affidavit, or if his statements do not show him to be a qualified elector of the municipality, the clerk shall forthwith cancel his registration. The 30-day period referred to in this section shall be the 30 days immediately following the date of mailing the notice to the challenged elector.
The New York Times learned of the situation and contacted Michigan’s Secretary of State. After the NYT published Activists Flood Election Offices With Challenges, Secretary Jocelyn Benson ordered all the registrants to be returned to the voter rolls.
1.xTreading on the intent of the law: Misapplying the wrong part.
The Brater memo reminds the clerks that in cases regarding registrants who have moved from their registration address, statutes MCL168.509aa and 168.509dd, which were added in 1994 to comply with the National Voter Registration Act (NVRA) of 1993, take precedence over the pre-existing statute. While federal law does takes precedence over state statutes, and is the final word in regard to the removal process in these cases, not everyone agrees with Brater’s interpretation that this is clearly outlined within Michigan law.
State Representative Rachelle Smit, a clerk of many years and now a member of the Michigan House Elections Committee, stands with those who disagree. She said that Brater was wrong to try to conflate statutes regulating two separate election processes. “These are similar, yet entirely distinct processes…509aa and 509dd are each clerk-initiated voter roll clean-up measures.” Neither of those statutes “takes challenges by third-party electors into account. Nor do they mention affidavits.“
On the other hand, Section 512 was specifically written to address third party and elector-initiated voter roll clean up processes. “This is an important difference between those two sections of law and Section 512,” Smit explained. “512 is a third party, local elector-initiated voter roll clean-up mechanism.”
“The clear intent of the legislature was to provide citizen electors with an opportunity to exercise civic responsibility and to function as a separate and additional electoral oversight function.”
While it is accurate that later laws address federal law changes regarding the removal of the “incorrect addresses,” the earlier Michigan law, Section 512, does not negate the citizens’ right to demand investigation if the local clerks fail to use the resources at their disposal to fulfill their responsibilities to clean the rolls under 168.509r.
2.xIssuing ‘guidance’ to cast aspersions on the validity of citizen-provided data.
Brater’s memo demonstrates the use of a second tactic as well. Under the guise of issuing “guidance” to the clerks, the memo casts aspersions on the validity of data presented with the affidavit. Brater’s memo suggests that both the Postal Service’s National Change of Address (NCOA) data and information gathered from a current occupant of a location are equally suspect and both are “third-hand” information.
Mr. Brater asserts, “if a clerk receives a challenge under Section 512 based on third-hand information, such as mail returned as undeliverable or a claim that a voter’s name appears on a United States Postal Service list, the clerk must not bypass the requirements of Section 509aa.”
In other words, Brater knowingly and inaccurately suggests the data is of inferior quality, so it should not be used. Yet when asked about his use of the phrase, “third-hand,” Mr. Brater responded. “Data a clerk receives about a voter from either NCOA or another resident is “third-hand” because it comes from a third party, not the voter.” By this definition, the monthly updates from the county clerks regarding voters who have died would be equally “third-hand” and should also be subject to the slow-walking process that Brater recommends in using statute 168.509aa.
3.xCreating unnecessary barriers to citizen input.
Finally, Mr. Brater insists that the law dictates that an affidavit may apply to only a single challenged voter. While the citizen’s statute does reference the elector in the singular, a reasonable person would argue that in enforcing the letter of the law—the singular noun versus its plural—Mr. Brater was betraying the spirit (intent) of the law.
Michigan Representative Jay DeBoyer and Smit hold the two minority seats on the House Elections Committee, and DeBoyer noted, “In no way does the statute imply that multiple individual claims must be submitted with separate affidavits. It just says that the ‘registration of any registered elector by submitting to the clerk of that municipality a written affidavit that such elector is not qualified to vote....’” An affidavit is a notarized document asserting that certain facts are true to the best of that person's knowledge, he stated.
“Multiple facts can be attested to at a single time on a single affidavit. The wording of the statute merely sets the minimum: one claim, one affidavit.”
In these three ways, then, Mr. Brater’s memo and its interpretations of Michigan law - along with recent legislation seeing a need to protect election workers from poll challenger “intimidation” - attempt to marginalize Michigan citizens’ right to demand accurate voter rolls and to create the false narrative that local clerks are being assailed by unhinged activists with bad data.
Though convenient for rationalizing discriminatory actions against citizens who are attempting to restore fair and honest elections, zero to minimal evidence exists in support of claims of violence or harassment of elected officials. Even the FBI website attests to only a handful of arrests nationwide.
In conclusion, Director Brater’s memo appears to make deliberate and manipulative attempts to marginalize Michigan citizens’ rights to demand accurate voter rolls. His arguments seek to marginalize these rights in three ways: "First, he appears to incorrectly suggest that MCL 168.512 is subordinate to MCL 168.509 aa, cc or dd under Michigan law. Second, he impugns the quality of the data provided by citizens, and thereby the quality of their challenges; and lastly, he has erected pedantic legal barriers that unnecessarily hinder citizens from raising concerns."
On one side, in this game of volleyball, are citizens concerned with bloated voter rolls, and these volunteer are stepping forward en masse. On the other side Michigan’s Secretary of State and her Bureau of Elections (funded at Michigan taxpayer expense) are disrespecting these efforts and insisting that the voter rolls remain bloated and bulging in disregard to the law. In the middle and pulled both directions are Michigan clerks, many of whom are overworked.
It is time for Mr. Brater and the clerks to understand that Michigan law allows citizens to partner with local clerks to ensure the integrity of Michigan's elections. Many citizens would welcome the opportunity to investigate our state's embarrassingly obsolete voter rolls in collaboration with their local election administrator. Teaming together, citizens and can help free up their local clerk to tackle their other duties while better honoring their responsibilities in regard to election integrity under Michigan law. Semantic shell game aside, this is their right and duty.
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Alan Dunst is a retired telecommunications analyst who found an interest in politics after the somewhat bewildering behavior during and after the 2020 election, when officials were excited to declare the election accurate, but not excited to share evidence to that effect. He has been helping address redundancies and inaccuracies in the QVF ever since.
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