Allegan County Clerk-Register Bob Genetski told local clerks Friday the Michigan Secretary of State was breaking the law by mailing absent voter applications to all registered voters.
He contends they cannot be sent to those who have not requested them.
“I am in the most unpleasant position that as the chief election official in Allegan County... I will have to file a complaint with the Allegan County Prosecutor should any of our clerks or deputy clerks break the law relative to the mailing of unsolicited AV ballot applications to voters in Allegan County,” he wrote in a letter to clerks, a document he also shared with The Allegan County News. He added that he understood the difficult position the state had put them in and made clear his opposition was to Secretary of State Jocelyn Benson’s actions.
Jake Rollow, spokesperson for the Michigan Department of State, said the Bureau of Elections had encouraged all clerks who would like to do so to mail absent-voter applications to registered voters in their community in consultation with their legal counsel.
“Absent voter applications are mailed nearly every election cycle by both major parties and countless advocacy and nonpartisan organizations,” Rollow said in an email. “Just like them, we have full authority to mail applications to ensure voters know they have the right to vote safely by mail. The application is also available online at Michigan.gov/Vote.”
Safety
Secretary of State Jocelyn Benson announced last week that all registered voters in Michigan will receive an absent voter application for both the August and November elections in an effort to limit crowds at the polls and the spread of COVID-19.
She touted the method’s ease and safety. Applications are signed, mailed to local clerks, who then mail official ballots to the applicants. Voters fill out the ballots just as they would when at a polling station, seal the envelope and mail them back to the local clerk. Election teams open and tabulate the AV ballots on election day along with those from in-person voters.
The press release announcing the effort provided few details about exactly who would be mailing the applications—only that there were 7.7 million registered voters in the state with 1.3 million already on the permanent absent voter list (automatically mailed AV ballots), some jurisdictions are mailing applications to all local registered voters and that the Bureau of Elections had committed to sending all remaining registered voters an application.
In Allegan County as of Tuesday morning, there were 88,718 registered voters. The permanent AV lists are maintained individually by local clerks, so the county does not have information regarding a total number.
May
The state sent out AV ballot applications to those voting in approximately 50 elections in 33 counties for the May 5 vote. Nearly 25 percent of eligible voters cast ballots, 99 percent of whom did so by mail or in a drop box. Locally, turnout in Otsego city and township topped 35 percent, as voters weighed in on Otsego Public Schools’ bond project.
From 2010 to 2019, average turnout in local elections in May was 12 percent.
The downside appears to have been that some voters never received their applications. Genetski said a local clerk had said 27 pieces of mail had been mistakenly delivered to a township office; among them were AV ballot applications intended for three other townships.
While he had not said the state’s action was illegal then, he raised concern over the mistakes in the state’s mailing process and the delays that kept the applications out of voters’ hands until the last minute.
Law
Genetski said in his email to clerks, “Ms. Benson has put us all in the terrible position of breaking the law or being locked out of controlling your city or township’s voter list. This is also a terrible waste of taxpayer money and is considered soliciting votes.”
He points to MCL 168.759(5) as noting clerks may only “furnish an absentee voter application form to anyone upon verbal or written request.”
“There is no further provision,” said the former state representative, “meaning that legislative intent is very clear—an AV ballot application must be requested by the voter.”
He said that was backed up in case law by an appeals court ruling in Taylor v. Currie.
Rollow in his email did not respond to a question about which law, if any, Benson was basing her authority to mail out the applications.
Genetski said, “If the Secretary of State wishes a law changed, she can go to the legislature and ask for a change like anyone else. However, at this moment, there is law on the books for us to abide by and it is clear.”
Fraud
Genetski said that while he fully supports absent voting, sending applications for AV ballots to all registered voters runs the risk of too many mistakes and fraud.
“Until the state figures out a way to make our statewide voter list more current, the opportunity for fraud is way too high,” he said, noting he also simply prefers local control. Even small amounts of fraud will matter, too. “I have overseen a recount for a school bond issue that failed by three votes, a city council seat election end in a tie then decided by a drawing out of a hat, and township millage pass by 15 votes—later contested by a recount.”
He said that in May, the envelopes for the applications the state mailed didn’t have a return address.
“So we as a state were unable to clean up our voter rolls” from any letters sent to outdated addresses, Genetski said. “Allegan Post Office says they all went to the Dead Letter Office in Georgia. So, we basically missed out on the one good thing to have come of it.”
Rollow in his email did not respond to questions about whether or not the state would defend local clerks if they complied with any state requests to send AV applications to those who had not requested them.
Allegan County Prosecutor Myrene Koch did not immediately respond to a request for comment on how any complaints filed on the matter would be handled.
Contact Ryan Lewis at Ryan.Lewis.Editor@gmail.com or (269) 673-5534.
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