state of michigan in the supreme court unlock …

STATE OF MICHIGAN IN THE SUPREME COURT

UNLOCK MICHIGAN, GEORGE FISHER, and NANCY HYDE-DAVIS,

Plaintiffs,

v.

THE BOARD OF STATE CANVASSERS, JOCELYN BENSON, in her official capacity as Secretary of State, and JONATHAN BRATER, in his official capacity as Director of the Bureau of Elections,

Defendants.

Supreme Court No.

Michael R. Williams (P79827) Frankie Dame (P81307) BUSH SEYFERTH PLLC 151 S. Rose St., Suite 707 Kalamazoo, MI 49007 (269) 820-4100 [email protected] [email protected]

Eric E. Doster (P41782) DOSTER LAW OFFICES, PLLC 2145 Commons Parkway Okemos, MI 48864 (517) 977-0147 [email protected]

Attorneys for Plaintiffs Unlock Michigan, George Fisher, and Nancy Hyde-Davis

COMPLAINT FOR IMMEDIATE MANDAMUS RELIEF

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There is a resolved civil action arising out of the transaction discussed in the complaint, Court of Claims Case No. 21-71-MZ, which the parties voluntarily dismissed on April 22, 2021. There is no other related pending litigation.

Plaintiffs Unlock Michigan, George Fisher, and Nancy Hyde-Davis, through

their attorneys and for their complaint, state the following:

INTRODUCTION

The Michigan Constitution provides:

The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative[.]

Const. 1963, art 2, § 9. This case seeks to protect this essential constitutional right—

and other rights enshrined in the U.S. and Michigan Constitutions—and prevent the

disenfranchisement of over 500,000 people who invoked their power under the

Michigan Constitution to initiate legislation.

Unlock Michigan needed about 340,000 signatures to have its petition certified

and submitted to the Michigan Legislature as initiated legislation. It submitted

nearly 540,000 of them. The Secretary of State’s Bureau of Elections staff analyzed

the signatures using a random sampling method and, estimating that Unlock

Michigan submitted at least 460,000 valid signatures, recommended that the Board

of State Canvassers (the “Board”) certify the petition. All parties to this lawsuit agree

that Unlock Michigan submitted more than enough valid signatures—there is no

disagreement on this point.

Even though Unlock Michigan’s petition met the constitutional and statutory

requirements for certification, the Board refused to certify the petition at its April 22,

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2021 meeting. Instead of performing its ministerial duty to certify the Unlock

Michigan petition, the Board shirked its duty and instead discussed investigating

Unlock Michigan’s petition-gathering methods and promulgating certain rules.

Eventually, it voted not to do either. Despite the Board’s decision to not investigate

or make rules, when it came time to certify the petition, Board members Julie

Matuzak and Jeannette Bradshaw refused to certify Unlock Michigan’s petition

because they still wanted the Board to investigate and promulgate rules. Board

member Matuzak was unmistakably clear about why she voted against the motion to

certify the Unlock Michigan petition:

MS. MATUZAK: I’ll be voting against this motion because I really am committed to the investigation and the rulemaking.

The Board doesn’t have the power to investigate how signatures were gathered,

and the lack of rules is not a barrier to certification here. The Board’s only remaining

action is a ministerial certification of Unlock Michigan’s petition. Again, no one—

including members Matuzak and Bradshaw—dispute that there are enough valid

signatures. The Board’s refusal to perform that ministerial duty violates Plaintiffs’

statutory and constitutional rights. The Court should therefore issue a writ of

mandamus requiring Defendants to immediately certify the petition and transmit it

to the Legislature.

PARTIES, JURISDICTION, AND VENUE

1. Plaintiff Unlock Michigan is a ballot question committee organized

under MCL 169.201, et seq., and registered at 2145 Commons Parkway Okemos, MI

48864.

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2. Plaintiff George Fisher is a Michigan voter who signed and circulated

the petition.

3. Plaintiff Nancy Hyde-Davis is a Michigan voter who signed and

circulated the petition.

4. Defendant Board of State Canvassers is a public body created by 1963

Const 1963, art 2, § 7.

5. The Board is tasked with, among other things, canvassing initiative

“petitions to ascertain if the petitions have been signed by the requisite number of

qualified and registered voters.” MCL 168.476(1).

6. Defendant Jonathan Brater is Michigan’s Director of Elections and is

vested with the authority to administer Michigan’s election laws under the

supervision of the Secretary of State. Director Brater is sued in his official capacity

and only to the extent his participation in this case is necessary for relief granted by

the Court.

7. Defendant Jocelyn Benson is Michigan’s Secretary of State. The

Secretary of State is a publicly elected position created by the 1963 Michigan

Constitution. See, e.g., 1963 Const, art 5, §§ 3, 21. The Secretary of State is tasked

with transmitting a certified petition regarding initiated legislation to the Michigan

Legislature for the latter’s consideration. Secretary of State Benson is sued in her

official capacity and only to the extent her participation in this case is necessary for

relief granted by the Court.

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8. This Court has discretionary jurisdiction “as provided by the

constitution or by law.” MCR 7.303(B)(6); see also MCR 3.305(A)(1)–(2) (noting that

a statute or rule may allow mandamus actions in “another court” besides circuit

courts and the court of appeals).

9. MCL 600.217(3) gives this Court “jurisdiction and power to issue, hear,

and determine writs of … mandamus.”

10. MCL 168.479 governs review of a challenge to a Board of State

Canvassers decision and says:

(1) Notwithstanding any other law to the contrary and subject to subsection (2), any person who feels aggrieved by any determination made by the board of state canvassers may have the determination reviewed by mandamus or other appropriate remedy in the supreme court.

(2) If a person feels aggrieved by any determination made by the board of state canvassers regarding the sufficiency or insufficiency of an initiative petition, the person must file a legal challenge to the board's determination in the supreme court within 7 business days after the date of the official declaration of the sufficiency or insufficiency of the initiative petition or not later than 60 days before the election at which the proposal is to be submitted, whichever occurs first.

11. MCL 168.479(1)–(2) “provides the method of review for those persons

aggrieved by any determination of the State Board of Canvassers.” Beechnau v

Austin, 42 Mich App 328, 330; 201 NW2d 699 (1972).

12. For the same reason, venue is appropriate in this Court. See Comm to

Ban Fracking in Michigan v Bd of State Canvassers, ––– Mich ––––; ––– NW2d ––––

(2021) (Docket No. 354270), 2021 WL 218683, at *5 (“MCL 168.479(2) is clear that

any person challenging the determination made by defendant regarding sufficiency

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or insufficiency of an initiative petition is required to file a timely legal challenge in

the Michigan Supreme Court.”).

GENERAL ALLEGATIONS

The Board’s Duties Regarding Initiative Petitions

13. The Legislature has empowered the Board to enforce Michigan Election

Law’s technical requirements, MCL 168.1 et seq., relating to the circulation and form

of initiative petitions.

14. Board members, as constitutional officers, must take the constitutional

oath of office, which states:

I do solemnly swear (or affirm) that I will support the Constitution of the United States and the constitution of this state, and that I will faithfully discharge the duties of the office of…according to the best of my ability. No other oath, affirmation, or any religious test shall be required as a qualification for any office or public trust.

Const 1963, art 11, § 1; see also MCL 168.22c (requiring Board members to take the

oath).

15. Taking this oath places on the Secretary and the Board no less solemn

an obligation than the judiciary to consider the lawfulness and constitutionality of

their every action. See Lucas v Bd of Road Comm’rs, 131 Mich App 642, 663; 348

NW2d 642 (1984) (noting Governor’s obligation); see also Rostker v Goldberg, 453 US

57, 64; 101 S Ct 2646; 69 L Ed 2d 478 (1981) (same for Congresspersons).

16. Accordingly, Board members have a constitutional duty to ensure that

their action here comports with the Constitution and Michigan law.

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17. The Board’s duties and responsibilities are established by the Michigan

Election law. See MCL 168.22(2) and MCL 168.841.

18. MCL 168.22(2) says that the Board “has the duties prescribed in section

841. The board of state canvassers shall perform other duties as prescribed in this

act.” These responsibilities include canvassing a petition. MCL 168.476.

19. The Board must determine whether a petition’s form “complies with the

statutory requirements and whether there are sufficient signatures to warrant

certification of the proposal.” See Citizens for Protection of Marriage v Board of State

Canvassers, 263 Mich App 487, 492; 688 NW2d 538 (2004).

20. The Board’s duty with respect to petitions is “limited to determining the

sufficiency of a petition’s form and content and whether there are sufficient

signatures to warrant certification.” Stand Up for Democracy v Secretary of State,

492 Mich 588, 619; 822 NW2d 159 (2012). See also Citizens for Protection of Marriage,

263 Mich App at 492, citing Ferency v Secretary of State, 409 Mich 569; 297 NW2d

544 (1980); Council About Parochiaid v Secretary of State, 403 Mich 396; 279 NW2d

1 (1978); Leininger v Secretary of State, 316 Mich 644; 26 NW2d 348 (1947).

21. The Board may not consider how signatures were gathered:

Because the Legislature failed to provide the Board with authority to investigate and determine whether fraudulent representations were made by the circulators of an initiative petition, we hold that the Board has no statutory authority to conduct such an investigation. Moreover, an attempt by the Board to go beyond its authority clearly outlined in the constitution and statute clearly undermines the constitutional provision that reserves for the people of the State of Michigan the power to propose laws through ballot initiatives.

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Mich Civil Rights Initiative v Board of State Canvassers, 268 Mich App 506, 520; 708

NW2d 139 (2005).

22. Once the Board certifies an initiative petition, the Secretary of State

must present it to the Michigan Legislature under Const 1963, art 2, § 9, which has

40 days to enact or reject it.

Plaintiffs’ Activities are Core Political Speech

23. Thornhill v State of Alabama, 310 US 88, 95; 60 S Ct 736; 84 L Ed 1093

(1940), incorporated the First Amendment against the states.

24. The First Amendment “was fashioned to assure unfettered interchange

of ideas for the bringing about of political and social changes desired by the people.”

Roth v United States, 354 US 476, 484; 77 S Ct 1304; 1 L Ed 2d 1498 (1957).

25. In Meyer v Grant, 486 U.S. 414, 421–22; 108 S Ct 1886; 100 L Ed 2d 425

(1988) (citations omitted), the United States Supreme Court explained:

The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. Although a petition circulator may not have to persuade potential signatories that a particular proposal should prevail to capture their signatures, he or she will at least have to persuade them that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole electorate. This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as “core political speech.”

26. Plaintiffs’ activities regarding the petition are all core political speech

protected by the First Amendment.

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Factual Background

27. In 2020, during the COVID-19 pandemic, Governor Whitmer claimed

extensive powers under 1945 PA 302, the Emergency Powers of the Governor Act

(“EPGA”).

28. Litigation ensued. Eventually, this Court held that the EPGA

unconstitutionally delegated legislative power to the executive branch. See House of

Representatives v Governor, 949 NW2d 276 (Mich, 2020); In re Certified Questions

from the United States Dist. Court, ––– Mich ––––; ––– NW2d –––– (2020) (Docket

No. 161492), 2020 WL 5877599 (“[T]he EPGA is unconstitutional in its entirety.”).

29. In the meantime, citizens established Unlock Michigan, a ballot

committee proposing to repeal the EPGA.

30. The text of the petition reads:

INITIATION OF LEGISLATION

An initiation of legislation to repeal 1945 PA 302, entitled “An act authorizing the governor to proclaim a state of emergency, and to prescribe the powers and duties of the governor with respect thereto; and to prescribe penalties,” (MCL 10.31 to 10.33).

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Enacting section 1. 1945 PA 302, MCL 10.31 to 10.33, is repealed.

31. Before Unlock Michigan began circulating petitions for signatures, it

asked the Board to approve both the form and its petition summary. See MCL

168.482b(1).

32. In July 2020, the Board unanimously approved the petition’s form and

the petition summary, which was authored by Director Brater.

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33. An opposing ballot committee, Keep Michigan Safe (“KMS”), sued the

Board and Secretary of State at the same time, asserting that the Board shouldn’t

have approved the form and substance of Unlock Michigan’s petition.

34. The Court of Appeals dismissed that complaint, and this Court denied

KMS’s subsequent application for leave. See Keep Michigan Safe v. Board of State

Canvassers, unpublished order of the Court of Appeals, entered August 17, 2020

(Docket No. 354188), lv den unpublished order of the Supreme Court, entered

September 25, 2020 (Docket No. 161960).

35. After the Board approved the petition, Unlock Michigan began collecting

signatures.

36. From July through the end of September, Unlock Michigan led tens of

thousands of circulators backed by millions of dollars in donations to gather over a

half million Michiganders’ signatures.

The Petition Satisfies the Constitutional Signature Threshold

37. Under Michigan’s 1963 Constitution, a petition to initiate legislation

must be signed by a number of registered voters equal to 8% of votes cast in the last

gubernatorial election. Const 1963, art. 2, § 9.

38. According to Michigan’s Secretary of State, 4,250,585 votes were cast in

Michigan’s 2018 gubernatorial election. Michigan Secretary of State, 2018 Michigan

Election Results <https://bit.ly/32HIF5P> (accessed April 22, 2021).

39. Eight percent of 4,250,585 is 340,047.

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40. One of the Board’s roles in this process is to canvass initiative petitions

to ensure they “have been signed by” enough “qualified and registered voters” to meet

this 340,047-signature requirement. MCL 168.476(1). The Board is assisted in this

task by the Bureau of Elections Staff (“Staff”).

41. On October 2, 2020, Unlock Michigan submitted 82,739 petition sheets

to the Secretary of State containing 538,345 signatures. Exhibit 1, April 19, 2021

Staff Report, p 1.

42. After an initial review, Staff disqualified 348 sheets containing 1,614

signatures, leaving 82,391 petition sheets with 536,731 signatures. Id.

43. Next, “[u]nder the Board’s established procedures, a small sample” was

drawn of about 500 signatures. Id. The results of that sample decide “whether there

is a sufficient level of confidence in the result to immediately recommend certification

or the denial of certification.” Id.

44. Here, Staff drew 506 random signatures from amongst the remaining

82,391 petition sheets. Id. at 2.

45. Each of the sample signatures represents 1,061 actual signatures

(536,731 total signatures divided by 506 sample signatures equals 1,060.7).

46. Based on this multiplier, if at least 338 of 506 sample signatures were

valid, Staff would recommend certification; if between 305 and 337 were valid, Staff

would do additional sampling; and if 304 or fewer were valid, Staff would recommend

against certification:

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Id. at 3.

47. As Staff began assessing the 506 sample signatures, KMS filed a

challenge against 168 of them. Id. at 2.1

48. Staff disagreed with all but one of KMS’s unique challenges, eventually

deciding that 434 of the sample signatures were valid. Id.

49. Based on the result of the random sample, Staff “estimated that the

petition contains 460,358 valid signatures (at a confidence level of 100 percent), a

surplus of 120,311 signatures over the minimum number required by” Const 1963,

art 2, § 9. Id. at 3 (cleaned up).

50. Based on this, “Staff recommend[ed] that the Board certify the petition

contains a sufficient number of valid signatures.” Id.

KMS’s Fraud Challenge and Related Attorney General Investigation

51. KMS’s challenge to Unlock Michigan’s petition also claimed that the

petition-gathering process was “riddled” with fraud and asked the Board to withhold

certification until it investigated Unlock Michigan’s petition-gathering methods.

1 KMS’s challenge (and related Court of Claims litigation) also raised a slew of non-signature-related challenges, the relevant portions of which are discussed in detail below.

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52. After reports and a video surfaced last September showing a paid

circulator making statements that could be construed to endorse illegal circulation

practices, the Attorney General opened an investigation into Unlock Michigan.

53. The Attorney General released her final report to the public on April 21,

2021. See Exhibit 2, Attorney General Report (dated February 24, 2021).

54. For several months the Attorney General conducted a “thorough

investigation of the facts and circumstances surrounding the circulation of” Unlock

Michigan’s “petitions.” Id. at 1.

55. The Attorney General said that the KMS-affiliated group, Farough &

Associates, sent “agents provocateur” to spy on Unlock Michigan’s signature-

gathering activities. Id. at 5. The Report called the behavior of at least one of these

provocateurs, Gretchen Hertz, “problematic.” Id. at 17. She “crossed the line” into

“inducing criminal conduct,” id. at 19, the Report said, probably violating MCL

168.933a and definitely violating MCL 168.544c, id. at 17. Ms. Hertz refused to

cooperate with the Attorney General on self-incrimination grounds. Id.

56. The Attorney General meticulously catalogued all evidence of fraud in

Unlock Michigan’s petition process: this included agent provocateur Richard

Williamson’s video of Erik Tisinger; three videos from agent provocateur Ms. Hertz

showing circulators who allowed her to sign someone else’s name, one video of an

unattended petition, and one video of a petition that was signed before the last voter

signed; a spreadsheet from an unnamed source showing complaints about circulator

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misrepresentations; and one volunteer circulator self-reported for signing a petition

for another circulator. Id. at 2–9.

57. In Attorney General’s press conference announcing the report, she said

that Unlock Michigan’s efforts “did not violate ‘any criminal statute.’” April 21, 2020

Press Conference <https://bit.ly/3elKXNh>.

58. Her written report went further, commending Unlock for its

cooperation, anti-fraud measures, and how promptly it rid itself of tainted petitions:

Unlock Michigan was likewise completely cooperative throughout the investigation. Most importantly its representative provided documentation to support the assertion that the committee had acted appropriately in ensuring that all circulators were aware of the legal obligations regarding the circulation of ballot initiative petitions. Paid circulators were provided with a Circulator Packet that included a “code of conduct” that goes beyond what the Election Law requires, copies of the relevant statutes and the “talking points” in favor of the petition. Volunteer circulators were required to watch the on-line video and were provided with the “talking points.”

Just as soon as Unlock Michigan became aware of the suspect petitions identified herein they pulled those petitions and provided them to the investigator. These suspect petitions were not provided to the Secretary of State to support the ballot initiative. The committee provided the AG with (1) the petition circulated by Richard Williamson; (2) all the petitions circulated by Tisinger and the local paid circulators he trained; (3) the petitions circulated by Eva Reyes; and (4) the petition signed as circulator by Catherine Tomassoni.

There is no evidence to directly link this ballot initiative committee to the tactics used by some of the paid circulators who were subcontracted to obtain voter signatures.

Attorney General Report, pp 9–10 (emphasis added).

59. The Attorney General continued:

Here Unlock Michigan, a ballot question committee, is seeking to rescind a statute enacted by the Legislature. Because of the huge

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number of voter signatures required to even get the question on the ballot they hired contractors to select, train and supervise paid petition circulators. All evidence in the case indicates that the committee acted with due diligence to ensure as much as possible that the paid circulators were aware of the applicable provisions of law and would carry out the task in a professional and ethical manner. There is here no evidence that the committee encouraged, approved of, or tolerated any misconduct or sharp practices by a paid petition circulator.

Id. at 20 (emphasis added).

60. In short, the Attorney General:

a. (1) conducted a thorough investigation into how the petitions were

circulated;

b. (2) found the petitions Unlock Michigan actually submitted were

untainted by fraud because Unlock Michigan proactively “pulled” all of

the “suspect petitions identified [in the report] … and provided them to

the investigator”; and

c. (3) found no evidence that the few instances of troubling behavior were

systemic or indicative of a broader issue—just the opposite, as Unlock

Michigan did not encourage, approve of, or tolerate “any misconduct or

sharp practices.”

KMS’s Administrative Procedures Act Challenge and Related Lawsuit

61. KMS’s challenge also urged the Board to delay certification because the

Secretary of State has not promulgated rules under the APA as allegedly required by

MCL 168.31(2).

62. KMS filed a related lawsuit in the Court of Claims asserting the same

APA arguments and seeking declaratory relief and a preliminary injunction to

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prevent the Board from certifying Unlock Michigan’s petition until satisfactory rules

were promulgated.

63. On behalf of the Board and the Secretary of State, the Attorney General

explained that it would be improper for the Court of Claims to “preemptively strike

Unlock Michigan’s ballot initiative” because of purported APA concerns. Exhibit 3,

Attorney General Brief (dated April 21, 2021), p 1. To do so would “circumvent the

ordinary course of business and preclude the Board from performing its constitutional

and statutory duties.” Id. The Attorney General explained at length how the Board

already had existing standards and practices for initiative petitions—and these

efforts satisfied Michigan Election Law. Id. at 13-20.

64. The Attorney General was correct. For 20 years, the Board has

canvassed initiative petitions using two manuals created by the Bureau of Elections:

a manual titled, “Circulating and Canvassing Countywide Petition Forms,” see

Exhibit 4 (updated April 2020), and a manual titled, “Sponsoring a Statewide

Initiative, Referendum, or Constitutional Amendment Petition,” see Exhibit 5

(updated March 2021).

65. Under these manuals, dozens of referendums and constitutional

amendments have been put before the people and initiated laws put before the

Michigan Legislature.2 In particular, from the 2000 election through the 2020

election, 24 constitutional amendments, 7 referendums, and 3 proposed initiated laws

have appeared on the ballot after the Board approved the form and substance of the

2 Including many by KMS’s counsel.

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relevant petitions and canvassed them—all via the manuals’ standards. The

Legislature has adopted 7 initiated laws during the same timeframe—also approved

by the Board using the manuals.

66. These numbers do not include the many petitions approved under the

rules that never made it to the ballot or floor of the Legislature. For example, in

2018, the Board approved 13 petitions, but only 6 made it to the ballot or Legislature.

See Michigan Secretary of State, 2018 Statewide Petitions <https://bit.ly/3gBx00u>

(accessed April 23, 2021); Michigan Secretary of State, Initiatives and Petitions Under

the Constitution <https://bit.ly/3vsRDAn> (January 2019).

67. Unlock Michigan relied on these manuals to guide its signature

gathering efforts.

68. It conformed its petition and behavior to the long-term rules that it and

every other ballot question committee has followed for two decades.

April 22, 2021 Board Meeting

69. The Board considered Unlock Michigan’s petition at its April 22, 2021

meeting. Exhibit 6, April 22, 2021 Hr Tr, pp 10:11–64:21.

70. Defendant Brater first explained in detailed Staff’s work canvassing the

petition; this explanation largely repeated the Staff Report that the Secretary of State

had already submitted to the Board.

71. Based on the Staff’s sample, Brater explained, Staff “determined that

434 of the 506 signatures” were valid. Hr Tr at 11:14–15. This was “well above the

minimum threshold that was required … to recommend certification.” Id. at 11:19–

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21. Based on that, the Bureau of Elections “does recommend that the Board

determine there [are] a sufficient number of valid signatures on the petition.” Id. at

11:22–24.

72. Regarding KMS’s other challenges, Brater said that the Bureau of

Elections takes no position on whether Member Tony Daunt should recuse himself,

id. at 13:12–14; the Bureau of Elections agrees with the Attorney General that the

Board’s procedures do not violate the APA, id. at 13:15–22; the Bureau of Elections

sees KMS’s challenges to the petitions’ form as already handled in last year’s

litigation and substantively erroneous, id. at 13:23–14:17; and a fraud investigation

would have been inappropriate because the Bureau of Elections and Board strictly

“review[] the validity of registration of the signers and otherwise review[] the validity

of the signatures. The Bureau [and Board do] not conduct investigations as to

whether signatures are fraudulently obtained or other things that are not apparent

from the review of the petition. So that’s not something that the Bureau of Elections

[or Board] has previously engaged on,” id. at 14:23–15:4.

73. The Assistant Attorney General assigned to assist the Board similarly

explained that her understanding of the Attorney General’s investigation was, “yes,

that the investigation is concluded and has been closed with the recommendation of

no charges.” Id. 16:11–14.

74. Based on all this, Brater concluded, “the Bureau of Elections does

recommend that the [Board] certify the petition as having a sufficient number of

signatures.” Id. 15:11–13.

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75. After the Board heard several presentations, it entertained two motions

from Member Matuzak based on KMS’s fraud and APA arguments, respectively.

76. First, Member Matuzak moved to investigate alleged fraud in the

Unlock Michigan petition: “I make a motion that the Board of State Canvassers

initiate an investigation into the collection of signatures on this petition.” Id. at

44:20–23. Member Bradshaw seconded.

77. When Member Shinkle asked Member Matuzak to explain the motion,

Member Matuzak responded that she saw this investigation as looking at the “illegal

gathering of signatures.” Id. at 45:25. She wanted the Board to investigate

“[q]uestions about observing the signatures, questions about signing, who can sign,

who doesn’t sign.” Id. at 46:3–5. Member Matuzak believed that the Board could

“look[] at the signatures and how they were gathered and were any of them gathered

in violation?” Id. at 46:11–13. She explicitly said this investigation would not

consider whether the petitions signers were registered or whether their signature

matched—she was not “concerned about” these issues. Id. 46:21–25. She was

concerned only about “how these signatures were gathered.” Id.; id. at 51:1–2 (saying

she wanted to know “how these signatures were gathered”).

78. Members Matuzak and Bradshaw both repeatedly emphasized that the

Board had “never done this before.” Id. at 45:5; id. at 45:18 (Matuzak: “So this is an

activity we have never done.”); id. at 47:17–18 (Bradshaw: “we haven’t done this, so

this is new for us. I sit with Julie on that, that we haven’t gone down this road.”); id.

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at 50:9 (Matuzak: “So we have never done one of these before[.]”); id. at 51:13–14

(“This is all new territory. We’re going to figure that out as we go.”).

79. Indeed, during a February 25, 2021 Board meeting, Member Matuzak

herself acknowledged that the Board had no real power to investigate fraud:

I’ve been on the Board now a long time as have you, Norm, and I don’t know how many times we have gotten our hands slapped for talking about fraud on petitions and been told directly that we have no ability to look at fraud, that it’s a buyer beware situation and that fraud complaints have to be taken to the local prosecutor or the Attorney General. . . . I would like to see us try to figure out a way to deal with fraud in petition gathering, but we’ve always been told we couldn’t sort of do that. So I am heartened that the Attorney General is looking at it. . . . I’m also not clear how the Board can look and make a judgment on signatures . . . . [Exhibit 7, February 25, 2021 Board Meeting Tr 23:10–24:7.]

80. After Member Matuzak made her motion for an investigation, Member

Daunt warned that delaying certification for this investigation would be “a Pandora’s

box,” encouraging “delay tactics on things just because may disagree with” a petition’s

“content.” Id. at 48:8–10. “[T]he evidence before [the Board] is that there are ample

signatures and that there has been no criminal wrongdoing”; the Board should

therefore “move forward with certification.” Id. at 48:19–22.

81. Member Shinkle noted that the Board “almost always follow[s] staff

recommendations.” Id. at 49:1–2. The Attorney General had done “a thorough

review” over “several months investigating these signatures” and had found “no

evidence” sufficient to bring charges. Id. at 49:3–7. Member Shinkle noted that this

motion was a motion to indefinitely delay certifying Unlock Michigan’s petition. Id.

at 49:13. And given Unlock Michigan’s “tremendous cushion” of nearly “30 percent

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above the threshold,” even if there was fraud, “it’s not going to make a difference in

the outcome that staff is recommending.” Id. at 49:18–23.

82. After this discussion, the Board voted on the motion to subject Unlock

Michigan to an open-ended and undefined investigation, deadlocking at 2-2.

Members Bradshaw and Matuzak voted in favor and Members Shinkle and Daunt

voted against. Id. at 51:23–52:9.

83. In short, after lengthy discussion into an area that exceeds the

ministerial duties of the Board, the Board explicitly chose to not investigate Unlock

Michigan.

84. Second, Member Matuzak made a motion to engage in APA rulemaking:

“I move that the Board of State Canvassers and the Bureau of Elections engage in an

APA rulemaking process to develop rules for the form of the petition, the submission

of the petition, the gathering of the signatures, and the canvassing of the said

signatures.” Id. at 52:21–25.

85. Member Matuzak admitted she had no idea how long this rulemaking

process would take—a “few months” to get “start[ed],” she estimated, id. at 53:22–

23—but during this rulemaking there would be “[n]o petition process.” Id. at 54:10.

All petition work would grind to a halt, including the Board’s certification of Unlock

Michigan’s petition. Id. at 54:14–16.

86. Members Shinkle and Daunt spoke in opposition. Member Shinkle

warned that passing this motion would “basically suspend the whole [Board’s] process

indefinitely.” Id. at 57:25. At issue, he said, was a “delay of this whole process until

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those rules are promulgated.” Id. at 61:2–3. For his part, Member Daunt noted the

troubling fact that the Board had just a few minutes before approved a new petition

(to obtain ballot status for the Patriot Party) as to form without any of the rules

Member Matuzak insisted were necessary. Id. at 58:10–13. He also spoke about the

basic injustice of applying new rules retroactively: “[I]t flies in the face of

fundamental fairness to have it retroactive to folks who started the process, whether

that’s … Unlock Michigan, or Fair and Equal Michigan or anything else.” Id. at

58:23–59:1. It would be “unfair,” Member Daunt said, to hold Unlock Michigan to

new rules when it had “started the process with an understanding of the rules as they

are now.” Id. at 59:3–11.

87. That motion, too, failed on a 2-2 vote, with Members Bradshaw and

Matuzak voting in favor and Members Shinkle and Daunt voting against. Id. at

61:24–62:10.

88. In short, before considering Unlock Michigan’s petition, the Board

explicitly declined to begin a rulemaking procedure.

89. After these motions, Member Daunt moved to certify Unlock Michigan’s

petition. Id. at 62:17–21.

90. Member Matuzak voted no, citing the lack of investigation or APA

rulemaking: “I'll be voting against this motion because I really am committed to the

investigation and the rulemaking.” Id. at 63:5–7. She further clarified: “This

motion—we're past the—I was merely giving my explanation, but we are past the—

23

if we deadlock on this or if it passes or it doesn’t pass, that bears no relationship on

our ability to start the rulemaking process . . . .” Id. at 63:21–25.

91. Members Daunt and Shinkle voted in favor of certification of the Unlock

Michigan petition. Member Shinkle explained: “we’re shutting down the system here

indefinitely if we have two votes that say we’re not approving anything without an

investigation or without rulemaking. It could be a year or more. We’re just shutting

down and I don’t think we should shut down.” Id. at 64:9–14.

92. In short, the Board deadlocked 2-2 on the certification question, thereby

declining to certify Unlock Michigan’s petition.

93. Member Matuzak refused to certify based on rulemaking concerns

despite admitting that rulemaking “doesn’t actually have a lot to do with [Unlock

Michigan’s] petition,” id. at 52:17–18, and then claiming that she would “accept the

decision of this Board to not be in a rulemaking process.” Id. at 66:7–9. Her refusal

to certify can only be seen as naked political favoritism.

94. Notably, during subsequent business, Member Shinkle suggested that

if members Matuzak and Bradshaw were going to refuse to certify any petition until

the Secretary of State promulgated rules, it might be better to stop all petition work.

Member Matuzak bristled at this suggestion, saying that she was not opposed to

certifying other petitions without rules—it was just this one she refused to vote “yes”

on:

MR. SHINKLE: Yeah. I mean, what might be an appropriate thought here is maybe you should just stop working on it until we have rules approved. I mean, that’s the vote of our two members that voted against Unlock. We’re not going to do anything until the rules are approved. So

24

if that's the case, there's no reason to waste taxpayers’ dollars working on this. That's my just thought right there, so—

MS. MATUZAK: I believe, Member Shinkle, that my motion failed and we’re not setting a rulemaking process. Again, I support some petitions, I oppose some petitions, but on this Board, if they meet the qualification—

MR. SHINKLE: Okay. So basically you're saying on some petitions you'll vote for them if you like them, but if you don't like them, you're going to insist on rules being passed first?

MS. MATUZAK: Member Shinkle, I would have been very happy to hold up any petition before us to get some rules. You chose not to do that. That's fine. I accept the decision of this Board to not be in a rulemaking process. But any implication that I favor one petition over another is highly offensive.

MR. SHINKLE: Okay. Well, so what you're suggesting—

MS. MATUZAK: You have no history of me on this Board doing that.

MR. SHINKLE: You might vote for a petition without rules is what you just said; right?

MS. MATUZAK: I would like to not vote for a petition because we are in a rulemaking process. That rulemaking process was rejected by this Board.

MR. SHINKLE: Right.

MS. MATUZAK: I will respect that decision. That means the next petition that comes before us we'll examine given the current state of—

MR. SHINKLE: Okay. So you might—you might approve the next one. That's what I was saying. You might approve the next one. [Id. at 66:14–68:1.]

95. A few hours after the Board unlawfully declined to certify Unlock

Michigan’s petition, KMS voluntarily dismissed its complaint in the Court of Claims.

25

COUNT I – MANDAMUS

96. Plaintiffs incorporate the allegations of the foregoing paragraphs as if

fully stated herein.

97. When the Board refuses to certify a petition despite the petition having

sufficient signatures, the proper remedy is a writ of mandamus ordering the Board

to certify the petition. Wojcinski v State Bd of Canvassers, 347 Mich 573, 578; 81

NW2d 390 (1957).

98. A party seeking mandamus must show four elements: “(1) the party

seeking the writ has a clear legal right to performance of the specific duty sought, (2)

the defendant has the clear legal duty to perform the act requested, (3) the act is

ministerial, and (4) no other remedy exists that might achieve the same result.”

Attorney Gen v Bd Of State Canvassers, 318 Mich App 242, 248; 896 NW2d 485 (2016)

(cleaned up).

99. The Plaintiffs and the Defendants herein all agree that Unlock Michigan

has submitted sufficient signatures and in the proper form. Plaintiffs therefore have

a clear legal right to have the Board certify the petition. Attorney Gen v Bd Of State

Canvassers, 318 Mich App 242, 249; 896 NW2d 485 (2016) (holding that persons

before the Board have “a clear legal right to have the Board perform its statutory

duties”).

100. Board members are constitutionally bound by their oath of office to

uphold and implement Michigan’s Election Law. Under that law, they have a

statutory duty to canvass petitions and certify any petition that has enough valid

26

signatures. See, e.g., MCL 168.476. The Board has already canvassed Unlock

Michigan’s petition and does not disagree with the Secretary of State staff that the

petition has enough valid signatures. The Board thus has a clear legal duty to certify

the petition.

101. The Board failed to perform a ministerial act. “A ministerial act is one

in which the law prescribes and defines the duty to be performed with such precision

and certainty as to leave nothing to the exercise of discretion or judgment.” Hillsdale

Co Senior Servs, Inc v Hillsdale Co, 494 Mich 46, 58 n 11; 832 NW2d 728 (2013)

(cleaned up). Certifying a petition is an act defined with precision and certainty; it is

a mathematical calculation that leaves nothing to the Board’s judgment. Withey v

Board of State Canvassers, 194 Mich 564, 567; 161 NW 781, 782 (1917) (stating that

once the Board had all the relevant numbers, “ma[king] the canvass and issu[ing] the

certificates” was a “statutory ministerial duty”).

102. Now that the Board has, by vote, refused to certify the petition,

Plaintiffs’ only remedy is a writ of mandamus.

103. As set out in detail below, without immediate action by this Court,

Plaintiffs will continue to suffer irreparable injury.

A. The Board’s failure to fulfill its clear legal duty also violates Plaintiffs’ due process rights.



105. The Due Process and Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution states:

27

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [US Const, Am XIV.]

106. The Due Process Clause of the Michigan Constitution says: “No person

shall be compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty or property, without due process of law.” [Const 1963, art 1,

§ 17.]

107. Both of these due process clauses require that the government provide

citizens with notice and an opportunity to be heard before it deprives those citizens

of life, liberty or property.

108. The right to vote is protected in more than the initial allocation of the

franchise because equal protection applies to the manner of its exercise as well. See

Bush v Gore, 531 US 98, 110; 121 S Ct 525; 148 L Ed 2d 388 (2000).

109. Thus, after granting the right to vote on equal terms, a government may

not, by later arbitrary and disparate treatment, value one person’s vote over that of

another. See, e.g., Harper v Virginia Bd of Elections, 383 US 663, 665; 86 S Ct 1079;

16 L Ed 2d 169 (1966).

110. Further, “the right of suffrage can be denied by a debasement or dilution

of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free

exercise of the franchise.” Reynolds v Sims, 377 US 533, 555; 84 S Ct 1362; 12 L Ed

2d 506 (1964).

28

111. Once a state creates a process by which to initiate laws, the state cannot

place restrictions on its use that violate the federal or state constitutions.

112. In other words, the federal and state constitution prohibit the Board

from ignoring petition signatures in an arbitrary and disparate manner.

113. By refusing to certify the petition despite Staff determining the Petition

had adequate signatures, the Board has violated Plaintiffs’ due process rights.

114. If the Board withheld certification to promulgate new rules or attempted

to apply rules retroactively to the Unlock Michigan petition, that would violate

Plaintiffs’ due process rights, too.

115. Plaintiffs have already completed their petition drive under Defendants’

existing manuals; they cannot now adjust their signature-gathering efforts to account

for new rules or regulations.

116. Measuring the petition against any standard but the existing manuals

would impermissibly violate Plaintiffs’ due-process rights.

117. Additionally, at the same April 22 meeting, the Board approved a

petition for a new political party despite having no rules—members Matuzak and

Bradshaw’s reason for refusing to certify Unlock Michigan’s petition. Hr Tr, pp 9:20–

10:9.

B. The Board’s failure to fulfill its clear legal duty also violates Plaintiffs’ Equal Protection rights.



29

119. The Due Process and Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [US Const, Am XIV.]

120. The Equal Protection Clause of the Michigan Constitution states:

No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation. [Const 1963, art 1, § 2.]

121. These provisions prohibit the government from denying any person

equal protection of the laws.

122. Immediately before the Board considered Unlock Michigan’s petition, it

approved another petition as to form despite lacking the same rules it lacked five

minutes later when Member Matuzak refused to certify Unlock Michigan’s petition

for lack of rules. April 22, 2021 Tr at 9:15–10:9.

123. The Board also discussed another petition whose signatures have

already been submitted—Fair and Equal Michigan.

124. Fair and Equal Michigan created its petition and gathered and

submitted its signatures under the same manuals Unlock Michigan did.

125. Fair and Equal Michigan hired Erik Tisinger, who also collected

signatures for Unlock Michigan and was the main target of the Attorney General’s

investigation.

30

126. Yet Member Matuzak said she saw no reason to stop Fair and Equal

Michigan’s petition certification process.

127. Member Matuzak also said that she would vote to certify Fair and Equal

Michigan despite the exact same lack of rules and investigation for which she claimed

she refused to certify Unlock Michigan.

128. Member Matuzak offered no explanation for why Tisinger’s alleged

fraudulent practices made one petition uncertifiable while the other petition was

acceptable; and she offered no explanation for why the lack of official rules made one

petition uncertifiable while the other petition was acceptable.

129. Upon information and belief, Members Matuzak and Bradshaw simply

favor Fair and Equal Michigan and oppose Unlock Michigan.

130. These two petitions are being treated differently.

131. There is no rational basis for treating the two petitions differently.

132. Defendants have made no findings that two similarly situated proposals

with overlapping circulators and signature-gathering rules should be treated

differently.

133. The only discernible basis for disparate treatment is Board members

Matuzak and Bradshaw’s personal political proclivity in favor of one petition and

against the other.

134. Further, on multiple prior occasions, the Board has approved initiative

petitions and substantially similar submissions without requiring APA rules or a full

investigation into any suggestion of fraud.

31

C. The Board’s failure to fulfill its clear legal duty also violates Plaintiffs’ First Amendment rights.



136. The United States Constitution’s First Amendment says: “Congress

shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government for a redress of

grievances.”

137. Michigan’s 1963 Constitution includes parallel guarantees: “The people

have the right peaceably to assemble, to consult for the common good, to instruct their

representatives and to petition the government for redress of grievances.” Const

1963, art 1, § 3. And: “Every person may freely speak, write, express and publish his

views on all subjects, being responsible for the abuse of such right; and no law shall

be enacted to restrain or abridge the liberty of speech or of the press.” Const 1963,

art 1, § 5.

138. Participating in the political process by signing petitions implicates

these freedom-of-speech and freedom-of-assembly rights.

139. Ballot-access rules restrain these same rights.

140. The right to vote is a sacred privilege guaranteed by the state and

federal constitutions.

141. The Court must make every rational intendment in favor of the rightful

exercise of the right to vote.

32

142. To the extent Defendants’ actions limit Plaintiffs’ freedom-of-speech and

freedom-of-assembly rights, their actions are subject to constitutional scrutiny.

143. The Board’s actions have deprived Plaintiffs of their fundamental

speech and assembly rights.

MOTION FOR ORDER TO SHOW CAUSE AND FOR IMMEDIATE CONSIDERATION

144. MCR 3.305(C) says: “On ex parte motion and a showing of the necessity

for immediate action, the court may issue an order to show cause.”

145. Importantly, this “motion may be made in the complaint.” Id.

146. The Court should immediately adjudicate the merits of this case on an

expedited basis because it involves the constitutional rights of voters, petition

circulators, and Unlock Michigan.

147. Further, any delay would deprive the Legislature of the chance to review

the proposal in a timely manner. Under Const 1963, art 2, § 9, the Legislature has

only 40 days to consider an initiated law. Delaying this 40-day period immediately

harms Unlock Michigan (and the Legislature) because the Michigan Senate’s last

scheduled session day is June 17, 2021.

148. Unlock Michigan also wishes to educate voters about the initiative’s

merits. But Unlock Michigan does not know whether an election will be necessary

until the Legislature’s 40-day period expires. This delay therefore reduces the time

in which Unlock Michigan may exercise its freedom of speech to educate voters about

the initiative’s merits. And it reduces the time for the electorate to consider the

initiative’s merits prior to the November 2022 election.

33

149. The Michigan Supreme Court has repeatedly said that election-related

cases must be considered on an expedited basis. See, e.g., Scott v Director of Elections,

490 Mich 888, 889; 804 NW2d 119 (2011).

150. And MCL 168.479(2), under which this mandamus action is being

brought, says that “[a]ny legal challenge to the official declaration of the sufficiency

or insufficiency of an initiative petition has the highest priority and shall be advanced

on the supreme court docket so as to provide for the earliest possible disposition.”

151. Therefore, pursuant to MCR 3.305(C), Unlock Michigan respectfully

requests that this Court order Defendants to show cause why a writ of mandamus

should not issue and to order that responding briefs be filed within seven days or less.

REQUEST FOR RELIEF

WHEREFORE, Unlock Michigan respectfully requests that this Court:

A. Grant Plaintiffs’ Motion for an Order to Show Cause and for Immediate

Consideration;

B. Issue a writ of mandamus directing Defendants to take all necessary

actions to certify and submit the Petition for consideration by the

Legislature pursuant to Const 1963, art 2, § 9.

C. Remand this matter to the Board with an order to:

1. Officially declare Unlock Michigan’s petition sufficient; and

2. Immediately certify the petition.

34

D. Remand this matter to the Secretary of State and Director of Elections with

an order to take any and all necessary action to certify the petition and

submit it to the Legislature.

E. Grant all other relief that is equitable and just.

Respectfully submitted,

BUSH SEYFERTH PLLC

By:/s/ Michael R. Williams Michael R. Williams (P79827) Frankie Dame (P81307) 151 S. Rose St., Suite 707 Kalamazoo, MI 49007 (269) 820-4100 [email protected] [email protected]

DOSTER LAW OFFICES, PLLC

By: /s/ Eric E. Doster Eric E. Doster (P41782) 2145 Commons Parkway Okemos, MI 48864 (517) 977-0147 [email protected]

Attorneys for Plaintiffs Unlock Michigan, George Fisher, and Nancy Hyde-Davis

Dated: April 30, 2021

Exhibit 1

B UR E AU OF E L EC TI O NS

R IC H AR D H . A US T IN B UI L D I NG 1 S T F LO OR 4 3 0 W . A L L EG AN LA NS IN G , M IC H I GA N 4 8 9 18

Mi c h i ga n .g o v / E l ec t i on s 5 17 - 33 5 - 32 3 4

April 19, 2021

STAFF REPORT:

UNLOCK MICHIGAN INITIATIVE PETITION

SPONSOR: Unlock Michigan, 2145 Commons Parkway, Okemos, Michigan 48864.

DATE OF FILING: October 2, 2020.

NUMBER OF VALID SIGNATURES REQUIRED: 340,047 signatures.

TOTAL FILING: 82,739 sheets containing 538,345 signatures.

Included in sample: 82,391 sheets containing 536,731 signatures (“the universe”).

Excluded from sample: 348 sheets containing 1,614 signatures.

Sheets Signatures

Defective circulator certificate (i.e., omitted or

incorrect date, failure of out-of-state circulator to

check box, incomplete address)

159 1,103

Jurisdiction errors (i.e., county of circulation does

not align with signer entries, invalid jurisdiction

entry by circulator or every signer on sheet)

148 323

Signer errors made by every signer on sheet (i.e.,

all signers entered date of birth or other incorrect

date)

17 18

Miscellaneous (torn or mutilated sheets, etc.) 24 170

TOTAL: 348 1,614

The two-stage sampling process was selected for the canvass of this petition. Under the Board’s

established procedures, a small sample is drawn at the first stage of approximately 500 signatures,

and the result of that sample determines whether there is a sufficient level of confidence in the

result to immediately recommend certification or the denial of certification. If the result of the small

sample indicates a close call, a second random sample must be taken to provide a result with the

maximum confidence level that can be obtained.

2

Here, the first-stage sample of 506 signatures was drawn from the universe of 536,731 signatures

gathered on 82,391 sheets.

NUMBER OF SAMPLED SIGNATURES: 506 signatures.

SAMPLE RESULT: 434 valid signatures; 72 invalid signatures.

Valid signatures:

Registered signers; signatures verified 434

Invalid signatures:

Signatures determined invalid due to signer’s registration status 51

Signer address errors (jurisdiction name does not align with county of

circulation, address omitted, street address given by signer does not align

with jurisdiction where registered or mailing jurisdiction, or dual

jurisdiction entry)

18

Signer date errors (incorrect or omitted date) 3

Total: 506

Two challenges were timely filed on April 9 alleging the Unlock Michigan petition form suffers

from formatting defects and contains insufficient signatures. Keep Michigan Safe filed a challenge

identifying 178 signatures it claims are invalid, alleging the Board’s petition and signature review

procedures were not properly promulgated under the Administrative Procedures Act, and arguing

the petition summary and heading are defective. On April 14, Keep Michigan Safe filed suit in the

Court of Claims against the Board and the Secretary of State on similar grounds. Keep Michigan

Safe v Board of State Canvassers, et al., Court of Claims Dkt. No. 21-000071-MZ. The second

challenge, filed by Steven C. Liedel, alleges the entire petition is fatally flawed due to formatting

defects.

With respect to claims that the petition summary is confusing or misleading, MCL 168.482b(1)

provides, “The board of state canvassers may not consider a challenge to the sufficiency of a

submitted petition on the basis of the summary being misleading or deceptive if that summary was

approved before circulation of the petition.” The wording of the Unlock Michigan petition summary

was unanimously approved by the Board on July 6, 2020, the same date the balance of the petition

was approved as to form.

Keep Michigan Safe challenged 168 signatures1 and BOE staff rejected 110 of these challenges; 57

challenges overlapped determinations of invalidity made by staff; and 1 challenge was accepted.

Unlock Michigan attempted to rehabilitate 64 challenged signatures; staff rejected 11 of the rebuttal

attempts, accepted 1, and the remainder overlapped determinations of validity made by staff.

1 Not included in the total number of challenged signatures are 11 sampled signatures that are alleged to have a

duplicate in the universe, due to the challenger’s failure to identify the alleged universe duplicates by page and line

number.

https://www.michigan.gov/documents/sos/07062020_705256_7.pdf

3

FINAL RESULT OF SIGNATURE SAMPLE:

Number of valid signatures Formula Result Sample Result

338 or more Certify 434 valid signatures

305 – 337 Sample more signatures

304 or fewer Deny certification

ESTIMATED NUMBER OF VALID SIGNATURES CONTAINED ON PETITION: Based on

the result of the random sample, it is estimated that the petition contains 460,358 valid signatures

(at a confidence level of 100 percent2), a surplus of 120,311 signatures over the minimum number

required by Article II, Section 9 of the Michigan Constitution.

STAFF RECOMMENDATION: Staff recommends that the Board certify the petition contains a

sufficient number of valid signatures.

Note that while the information provided in this staff report is current as of this writing, additional

information may be submitted by the petition sponsor or challenger after the date of publication.

This staff report is being published on April 19, 2021, three business days prior to the April 22,

2021 meeting at which the Board of State Canvassers will consider the sufficiency of the Unlock

Michigan petition in accordance with MCL 168.476(3) (“At least 2 business days before the board

of state canvassers meets to make a final determination on challenges to and sufficiency of a

petition, the bureau of elections shall make public its staff report concerning disposition of

challenges filed against the petition.”).

2 A 100 percent confidence level means that there is a 100 percent chance that drawing a different sample would

produce the same result.

Exhibit 2

STATE OF MICHIGAN

DEPARTMENT OF A'lv

l'ORNEY GENERAL

DANA NESSEL

ATTORNEY GENERAL

MEMORANDUM

Memorandum Recommending Closure fl{ev. 02/11/2020]

February 24, 2021

TO: Danielle Hagaman-Clark Division Chief

APPROVED: ______ ___ _ Solicitor General Date

Criminal Trials & Appeals

FROM: Richai·d Cunningham /l G _3; Assistant Attorney General V Criminal Trials & Appeals

D Check here when Division Chief has final approval authority for the request.

APPROVED: 3/.z/U>ZI

Division C �

RE: Recommendation to Close File Without Filing Criminal Charges

Due Date for Response: March 10, 2021 - Administrative Control Date Unlock Michigan

AG No. 2020-0301943-A

Victim's position: NIA-Alleged Violations Of Election Law

Recommendation:

For the reasons herein stated and discussed, I recommend that criminal charges be denied and that this file be closed without further action. A thorough investigation of the facts and circumstances surrounding the circulation of ballot question petitions uncovered insufficient evidence to go forward on criminal charges. While the investigation found evidence of sleazy practices and shady activity, the similarly unethical conduct of the witnesses to such activity makes prosecution of the circulators untenable. And while a person responsible for training such circulators made remarks which could be construed as encouraging illegal behavior, they simply did not rise to the level supporting criminal charges.

Date

SG rec'd 3.2.2021

.3.16.2021Fadwa Hammoud

Danielle Hagaman-Clark Page 2 February 24, 2021

Facts:

This case really arises out of a dispute between two partisan political groups. Unlock Michigan is a Ballot Question Committee identifying with Republican Party interests, while Keep Michigan Safe is a Ballot Question Committee identifying with those of the Democratic Party. The underlying cause of this particular dispute is a Michigan statute that grants the governor certain emergency powers.

The U n1ock Michigan (Republican Party) position is that the Governor has misused the Emergency Powers of Governor Act of 1945 to assume sweeping, permanent powers the legislature never intended a governor to have, in violation of the Separation of Powers doctrine. It is spearheading a ballot initiative petition drive to repeal the statute. The position of Keep Michigan Safe (Democratic Party) is that the statute is necessary to keep the residents of Michigan safe during the ongoing COVID-19 pandemic, and that the executive power of the governor must be protected during the public health crisis. It seeks to defeat the ballot initiative.

Both of these Ballot Question Committees engaged in a media campaign to present their positions to the public. Both also hired independent contractors to assist them in attaining their respective goals. Un1ock Michigan hired National Petition Management, Inc, a California corporation, to help obtain petition signatures. That company used subcontractors In The Field, Inc., Let The Voters Decide, LLC and Smart Petition Company to assist in the signature collection effort. Keep America Safe hired the firm of Byrum & Fisk as its communications component. The political consulting firm of Farough & Associates also assisted Keep Michigan Safe in the effort to defeat the ballot proposal.

As part of their respective efforts, each Ballot Question Committee established a public website. Within each website there is information of particular relevance. The Unlock Michigan website solicits volunteer petition circulators and explains the legal requirements regarding the circulation of the ballot initiative petition. The Keep Michigan Safe website encourages citizens to report any violations of law or misconduct by petition circulators.

Shortly after the petition circulation campaign began, Byrum and Fisk began to receive reports and hear rumors that petition circulators were lying to voters about the content and purpose of the petition, leaving petitions unattended in public places and engaging in other forms of misconduct. In response Farough & Associates employees attended Un1ock Michigan events and activities for the purpose of documenting illegal activity. Faro ugh & Associates called these people "trackers", but subsequent investigation indicates they would more appropriately be called agents provocateur. Byrum and Fisk provided four videos of incidents recorded by the Farough & Associates "trackers".

Danielle Hagaman-Clark

Page 3

February 24, 2021

The Tisinger Training Session

One of these "trackers" attended and recorded a training session conducted by Erik Tisinger on September 4, 2020. That person was identified as Richard Williamson. He was interviewed and reported that he was hired as a research and communications specialist by Farough & Associates on 8/13/20 and was assigned by Farough officer Gretchen Hertz to conduct opposition research and tracking regarding Unlock Michigan. He was told that his duties would involve the audio and video recording of Unlock Michigan events. Farough procured a video recorder

that was disguised to look like a pen and shipped that "video pen" to Williamson's home.

William Erik Tisinger (a/k/a Erik Tisinger) has worked as a professional petition circulator on and off since 2012. He began working as a manager for In The Field in January 2020. He came to Michigan in the second week of August 2020 to

work both on the Unlock Michigan and another ballot initiative. He was trained by an In The Field employee, and signed a form acknowledging that he understood the rules concerning the circulation of petitions.

In The Field brought about 20 professional circulators in from out-of-state, and also recruited local citizens to circulate the Unlock Michigan petitions. Paid circulators were to receive $3.50 for each signature he or she collected. Part of Tisinger' s duties as a manager was to train the local circulators. During the five weeks he spent in Michigan, Tisinger conducted four training seminars each week. The training sessions were held in Grand Rapids, Kalamazoo and Grand Rapids. All of the sessions were sparsely attended.

The session attended by Williamson was held in Grand Rapids. In addition to Williamson there were two other persons in attendance. Those other persons have been identified as T.J. Hurtman and Shawn Cronin. Williamson learned about the session by conducting on-line research. He participated by presenting himself as a prospective petition circulator. The session went from about 11:00 am to 12:30 pm, and covered techniques for circulating petitions. Williamson recorded the session by use of his "video pen." He subsequently turned the recording over to Gretchen Hertz at Farough. The recording was subsequently provided to the Detroit Free Press.

During the session Tisinger informed the attendees that they did not have a right to circulate petitions on private property like supermarket and mall parking lots. He told them he routinely did this and indicated that a circulator could simply express ignorance if confronted by a store manager. He talked about how he dodged between cars in parking lots to avoid private property owners.

Among the most disturbing portion of the recording is this exchange between Tisinger and the trainees:

Danielle Hagaman-Clark Page 4

February 24, 2021

Tracker [01:16:52] I have a friend who has a store. Could I like, if I talk to him and I'm like, "hey, man, can I just keep this? Can you have this petition on your counter? So when customers come in, they can sign it?"

Erik (Petition manager) [01:17:02] Technically, no. It.

None of you are recording anything right now are you?

Petition gatherer trainee No.

Erik (Petition manager) Yes.

Erik (petition manager) Don't ever tell me about it

again.

Tracker]OK

Erik (petition manager) [01:17:19] I'm, and I never heard this conversation. You guys never heard this conversation. Umm, [01:17:28] You can. The thing is, is that we'll get. People. This is a real. This can be a real shady job. And when I say shady, I mean, people do all sorts of illegal shit all the time and never get caught. It's really

hard to get caught doing shit except for, like, forgeries. I'm not going to tell you the things that people do because I don't want you guys to do that shit, but you can do that. The thing is, is that legally speaking, you're supposed to witness everybody who gets, who signs.

Tracker Oh, OK.

Erik (petition manager) There are periods of time, especially on petitions that are highly opposed. And this one is highly opposed because the governor is like fucking pulling her hair out about it. [pauses] You might get deposed. You might have to go and do a deposition where,

you know, you're in court and you're getting grilled by people.

Tracker Yeah.

Erik (petition manager) Did you get this signature? This person said they signed it at, you know, a store and you


weren't the person that you know. And they will. They do. They contact people like it's they're fucking it it it can get [00:01:l0]crazy. I've been deposed and it's super easy. I'm just like, yeah, I got all the signatures. Do you know Debbie? [01:18:37] Deborah blah, blah, blah said that she signed with a woman. Well, I had my hair down that day and was just freshly shaved.

Tracker Yeah.

Erik (petition manager) ]Yeah. I mean, I've literally done that and [0 1: 18:48] been a jerk about it, but it happens. You can get deposed. I mean this is ...

Tisinger was subsequently interviewed about the training session. He flat out denied ever encouraging any trainee to violate the laws controlling the circulation of petitions. He insists that he never directly told anyone that it was permissible to leave petitions unattended and cited the exact language of the portion of the transcript concerning leaving petitions at stores or other facilities. He emphasized that such action would be permissible, as long as the circulator was present and actually witnessed the voter sign the document.

Farough & Associates Encounters With Circulators

In addition to this video of the training session, there were three other videos made of separate incidents involving a "tracker". Investigation concludes that all three of those recordings were done by Farough & Associates employee Gretchen Hertz. They appear to have been recorded by use of a cell-phone camera or a "video pen" like that sued by Williamson. One was recorded at the Brighton Farmer's Market, the second at the Falcons Nest Restaurant, and the third at Howell Western Wear store. Ms. Hertz, a licensed Michigan attorney, declined to be interviewed about the videos unless and until she is provided with a Kastigar agreement giving her immunity for any statements.

Brighton Farmers Market Video

In the Brighton Farmers Market video, Ms. Hertz is approached by a petition circulator who identifies herself as Eva from Florida. Ms. Hertz tells her that she was already signed, and then asks if it would be all right to sign her husband's name. She makes it clear that her husband is not present. Eva assures her that it is permissible to sign her husband's name. Ms. Hertz is then seen writing something on the petition, but that video does not show what she wrote.


Investigation of this incident led to an interview with Eva Noemi Reyes, a paid petition circulator from Arkansas who came to Michigan to circulate petitions. She confirmed that she was collecting signatures for the Unlock Michigan ballot question at the Brighton Farmers market but had no specific recollection of the incident involving Hertz. She stated that she was being paid $3.50 per signature by Ryan Mazurkiewicz, a sub-contractor for "Let The Voters Decide". She had circulated petitions for Mazurkiewicz in Arkansas during the summer of 2020 and came to Michigan at his request. She stated that Mazurkiewicz did not provide any type of training regarding circulation of petitions in Michigan.

Ms. Reyes expressly stated that Mazurkiewicz had told her that if she had trouble getting signatures on the petition she should just lie to the voter as to its purpose. He told her that "it was just money" and the legal process would work it out. She further stated that when she asked whether a voter could sign for another person, like a spouse, Mazurkiewicz told her it would be another signature and more money." Even though she did not remember the encounter with Ms. Hertz, she admitted that she "probably" told her it was permissible to sign her husband's name.

Ryan Muzurkiewicz, a Florida resident, admitted that he was in Michigan circulating the Unlock Michigan petitions as a sub-contractor for Mark Jacoby's

firm, Let The Voters Decide. He stated that he had trained Reyes and had shadowed her for a while to ensure that she was following the rules. He said that she knew what to do, as she had worked for him on another petition drive in Arkansas. He described her as laid-off teacher earning extra income. He expressly denied ever telling her that it was all right for a person to sign a spouse's name on a

petition. He emphasized that he does not tolerate employees making false statement to voters in order to obtain a signature.

The Falcons Nest Video

The video taken at the Falcons Nest shows an array of partially filled out petitions at the take-out counter at the front of the restaurant. There is a separate petition for each of four counties (Lapeer, Genesee, Bay & Saginaw). Ms. Hertz is directed to the petition for Lapeer County. She then asks the restaurant employee who is near the petitions if it is all right for her to sign her husband's name. After being assured that this is permissible, Ms. Hertz signs the name, "Michael Hertz" in

the signature portion of the petition. She does not fill in an address, date or other portions of the petition. After a few seconds she crosses out the name on the petition.

Robert and Nina Pittman are the owners of the Falcons Nest Restaurant and were interviewed about the incident. During the interview their adult son, who refused to give his name, often interjected himself into the conversation. Nina


Pittman advised that she was the person who circulated the petition. She indicated that she was present when Ms. Hertz signed someone else's name. The video shows that she was initially present but walked into the kitchen while Hertz was affixing the signature. She identified the employee to whom Hertz addressed the question as to whether she could sign for her husband as Cory Conrad. Ms. Pittman stated that she did not hear Hertz ask about signing for someone else but would have told her that cannot be done if she had heard the question. She was fully aware that a person could not sign on behalf of a spouse.

Ms. Pittman stated that she was told that if there were any mistakes on a petition it should not be submitted to Unlock Michigan. She felt that since Hertz had crossed out the name the petition was void, and she did not submit that petition to Unlock Michigan.

Cory Conrad was interviewed and confirmed that it has him on the video. He stated that he was never trained on how the petitions were to be circulated and that the petitions were just set out for people to sign. He indicated that he simply did not know whether a person could sign on behalf of his or her spouse. He did not know whether the Pittmans were being paid for circulating the petitions, but opined that

they were just doing what they believe in.

Howell Western Wear Video

This video shows Hertz discussing a petition for Livingston County voters with a female who is not caught on camera. There are four voter signatures on the petition. The fourth name is Gretchen Cross. That is the maiden name of Gretchen Hertz. That signature line gives an address which investigation found to be a vacant lot. As shown in the video, Ms. Hertz asks the female whether she can sign her husband's name to the petition. She is told that it is permissible to do so. The video does not show whether she actually signed someone else's name. At the bottom of the petition, in the area for the certification of the circulator, there is the undated signature of David Scott.

Lynn Elberson is the owner of Howell Western Wear. She was shown the video of Hertz asking whether she could sign her husband's name. She declined to identify the store employee who interacted with Hertz, stating that she believed she and her employees were being set-up by the woman in the video. When asked about the circulator signature of David Scott she identified him as an older white male, tall, who was a nice guy and good salesman. She stated that Scott had come into the store and asked to leave petitions there for voter signatures. Because she supported the ballot proposal she allowed him to do so. She said the petition was at her store for about two weeks before Scott came back to retrieve it. She indicated that she wanted to speak with an attorney before making any further statements.


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David Scott identified himself as a professional petition circulator who travels the country circulating various petitions. He confirms that he was in Michigan circulating petitions for the Unlock Michigan ballot question. He stated that he was then working for Mark Jacoby, who has been identified as owning "Let The Voters Decide". Scott admits that he was in Howell during this time but denies leaving petitions at a clothing store. He did not deny ever being at this clothing store. He said he went to such a clothing store, had the woman who was there sign the petition, and then left. He denied coming back to the store. He assets that when in Howell he lost some partially completed petitions, but he had not yet signed as the circulator on those forms.

Voter Complaints About Circulator Misrepresentations

In addition to the incidents caught on video, the investigation developed several credible reports about misrepresentations made by petition circulators while soliciting signatures for the petition. Numerous citizen complaints were made that the circulators flat out lied about the purpose of the ballot initiative, and often made false statements to induce a person to sign. These complaints were similar in nature and presented the same type of "bait and switch" misconduct. Significant among them were complains by attorneys Danielle Cadoret and Bruce Sage.

Ms. Cadoret related an incident where she was walking with a client in the Greektown area of Detroit. Both were wearing face masks. She indicates that a petition circulator approached stating that he was collecting signatures in support of continued face mask enforcement in Michigan. When she actually read the petition she discovered it was really the Unlock Michigan proposal to repeal the governor's emergency powers. She then chastised the circulator for lying. He admitted that he was a paid circulator but refused to identify himself or disclose who he was working for.

Bruce Sage reported that he had two encounters with Unlock Michigan petition circulators while traveling to and from his cabin in northern Michigan. In both incidents petition circulators were set up at a table at an expressway rest-stop. During both incidents he was asked to sign a petition. In both incidents he asked the circulator what the petition was about. In the first incident he was given the response that it was about business in Michigan. In the second incident the circulator was completely evasive. Mr. Sage was concerned that the circulators were simply not being truthful in their attempts to obtain signatures.

The AG investigator was also provided with a spread sheet showing the comments of over 450 voters regarding attempts to have them sign the Unlock Michigan petition. The comments varied, but many reported misrepresentations or down-right lies by a circulator. None of these comments identified the circulator by name or indicated for whom they were employed.


February 24, 2021

Self-Reported Circulator Misconduct

A representative of Unlock Michigan contacted the AG investigator and advised of a report the committee had received from a volunteer petition circulator. The purported circulator contacted Unlock Michigan and stated that she had signed a petition as the circulator but did not actually circulate that petition. She then mailed that petition to the ballot issue committee. Unlock Michigan then found that

petition and turned it over to the AG investigator. It was not submitted to the Secretary of State. Unlock Michigan identified the purported circulator as Catherine Tomassoni.

Catherine Tomassoni, who resides in Iron Mountain, Michigan, was interviewed about the petition. She identified herself as a petition circulator and drop-off point person for volunteer circulators. She indicated that she received a petition containing 4 signatures that had not been signed by the circulator. There were other petitions dropped off to her by volunteer circulators, but this one was the only one not properly signed. She does not know who actually circulated the petitions. She decided to sign as the circulator and mail it to Unlock Michigan. No one from the ballot issue committee was aware of this, and no one else pressured or encouraged her to do so. After thinking the matter over she recognized what she did was wrong, and so she contacted Unlock Michigan and advised that she did not actually circulate the petition.

Keep Michigan Safe Co-operation

Keep Michigan Safe was completely cooperative throughout the investigation. Its representatives were candid and provided assistance and information when requested. Campaign finance records indicate that Keep Michigan Safe made substantial campaign expenditure payments to Farough & Associates, but there is

nothing to indicate that the ballot initiative committee approved of, or was even aware of, the "agent provocateur" tactics used by Farough.

Unlock Michigan Cooperation

Unlock Michigan was likewise completely cooperative throughout the investigation. Most importantly its representative provided documentation to support the assertion that the committee had acted appropriately in ensuring that all circulators were aware of the legal obligations regarding the circulation of ballot initiative petitions. Paid circulators were provided with a Circulator Packet that included a "code of conduct" that goes beyond what the Election Law requires, copies of the relevant statutes and the "talking points" in favor of the petition. Volunteer circulators were required to watch the on-line video and were provided with the "talking points."


Just as soon as Unlock Michigan became aware of the suspect petitions identified herein they pulled those petitions and provided them to the investigator. These suspect petitions were not provided to the Secretary of State to support the ballot initiative. The committee provided the AG with (1) the petition circulated by Richard Williamson; (2) all the petitions circulated by Tisinger and the local paid circulators he trained; (3) the petitions circulated by Eva Reyes; and ( 4) the petition signed as circulator by Catherine Tomassoni.

There is no evidence to directly link this ballot initiative committee to the tactics used by some of the paid circulators who were subcontracted to obtain voter signatures.

Attorney John D. Pirich

The investigation discussed herein was initiated following a formal complaint by attorney John D. Pirich to the Attorney General, the Secretary of State and the

Director of the Bureau of Elections. He therein alleged substantial irregularities and possible illegalities associated with the circulation of the Unlock Michigan proposal, and requested an investigation into the actions of paid and volunteer petition circulators. He identified himself as an attorney with vast experience in election matters. He offered his thoughts as to the Election Law provisions that were violated during the circulation of the Unlock Michigan petitions.

Mr. Pirich was interviewed during the investigation and advised that he had received photographs and videos demonstrating improprieties from Mark Fisk at Byrum and Fisk. He directed the AG investigator to Mr. Fisk for copies of these materials. The information he provided is what led the investigator to those videos previously discussed.

Mr. Pirich' s claim to expertise in election law matters appears to be well founded. He served as the attorney for a ballot question committee that circulated petitions for the successful effort to change marijuana laws. John Jacoby, the principle of Let The Voters Decide, collected voter signatures during that campaign. However, there is nothing to tie Mr. Pirich to Let The Voters Decide in the present case. But it does emphasize that Jacoby has a reputation for getting things done and is used by various campaigns.

Here there is no evidence to indicate that Mr. Pirich was acting with any motives other than a sincere intent to protect the integrity of the ballot initiative process. He should be commended for his efforts.


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Discussion:

A discussion of the facts developed during the investigation best begins with a review of the applicable provisions of Michigan's Election Law, MCL 168.1 et seq.

The obligations of ballot question petition circulators are set out in the statute, as are the penalties for any criminal violations.

Statutory Off ens es

Law and procedure controlling Initiative and Referendum are set out in Chapter XXII of the Michigan Election Law. Of particular note are statutory provisions covering the circulation of ballot question petitions. There are several

statutory provisions applying to paid petition circulators. A person who circulates

such a petition as a paid circulator must file an affidavit disclosing this fact to the Secretary of State. MCL 168.482a. The circulator of a petition who knowingly

makes a false statement concerning his or her status as a paid signature gatherer is guilty of a misdemeanor. MCL 168.482c. Any signatures on a petition circulated by a paid circulator who did not submit the required affidavit is invalid and cannot be

counted. MCL 168.482a(2). However, this statute does not impose any criminal penalty on a paid circulator for failing to submit the required affidavit.

At this point it is important to note that in AG Opinion 7310, dated May 22, 2019, the Attorney General determined that the provision ofMCL 168.482a

amended by 2018 PA 608 requiring paid circulators to file an affidavit before circulating petitions violate the speech clause of the United States Constitution and the Michigan Constitution and are invalid. Thus the specific provisions requiring a

paid circulator to file an affidavit cannot be a basis for any criminal prosecution.

But even disregarding the invalid duty imposed on paid circulators, there is another provision within Chapter XXII that imposes additional duties and criminal penalties regarding the circulation of ballot issue petitions. MCL 168.488 indicates

that the criminal provisions of MCL 168.544c concerning primary election candidate petitions are applicable to ballot question petitions. MCL 168.488 provides:

168.488 Applicability of MCL 168.544c and 168.482(1), (4), (5), and (6).

Sec. 488.

(1) Section 544c applies to a nominating petition for anoffice in a political subdivision under a statute that refers to this section, and to the circulation and signing of the petition.

(2) Section 482(1), (4), (5), and (6) apply to a petition toplace a question on the ballot before the electorate of a


political subdivision under a statute that refers to this section, and to the circulation and signing of the petition.

(3) A person who violates a provision of this act applicableto a petition pursuant to subsection (I) or (2) is subject to the penalties prescribed for that violation in this act.

Recognizing that the requirements of MCL 168.544c apply to ballot question petitions, it is next necessary to view the relevant portions of that statute.

168.544c Nominating petition; type size; form; contents; circulation and signing; validity of elector's signature; agreement of circulator to accept jurisdiction; service with legal process; violations; misdemeanor; felony; sanctions; refusal of individual to comply with subpoena; applicability of section to all sections. Sec. 544c. (1)-(4) ... (5) The circulator of a petition shall sign and date thecertificate of circulator before the petition is filed. Acirculator shall not obtain electors' signatures afterthe circulator has signed and dated the certificate ofcirculator. A filing official shall not count electors'signatures that were obtained after the date the circulatorsigned the certificate or that are contained in a petitionthat the circulator did not sign and date.(6) Except as provided in section 544d, a petition sheet

must not be circulated in more than I city or township andeach signer of a petition sheet must be a registered electorof the city or township indicated in the heading of thepetition sheet. The invalidity of 1 or more signatures on apetition does not affect the validity of _the remainder of thesignatures on the petition.

(7) ...(8) An individual shall not do any of the following:(a) Sign a petition with a name other than his or her

own. (b) Make a false statement in a certificate on a

petition. (c) If not a circulator, sign a petition as a circulator.(d) Sign a name as circulator other than his or her

own. (emphasis added).


(9) Except as otherwise provided in subsection (10), an

individual who violates subsection (8) is guilty of a misdemeanor punishable by a fine of not more than $500.00 or imprisonment for not more than 93 days, or both.

(10) An individual shall not sign a petition with multiplenames. An individual who violates this subsection is guilty of a felony.

(11) If after a canvass and a hearing on a petition undersection 4 76 or 552 the board of state canvassers determines that an individual has knowingly and intentionally failed to comply with subsection (8) or (10), the board of state canvassers may impose 1 or more of the following sanctions:

(a) Disqualify obviously fraudulent signatures on apetition form on which the violation of subsection (8) or (10) occurred, without checking the signatures against local registration records.

(b) ...(12) If an individual violates subsection (8) or (10) and the

affected petition sheet is filed, each of the following who knew of the violation of subsection (8) or (10) before the

filing of the affected petition sheet and who failed to report the violation to the secretary of state, the filing official, if different, the attorney general, a law enforcement officer, or the county prosecuting attorney is guilty of a misdemeanor, punishable by a fine of not more than $500.00 or imprisonment for not more than 1 year, or both: (a) The circulator of the petition, if different than the

individual who violated subsection (8) or (10). (b) If the petition is a nominating petition, the candidate

whose nomination is sought. (c) If the petition is a petition for a ballot question or

recall, the organization or other person sponsoring the petition drive.

(13) If after a canvass and a hearing on a petition undersection 476 or 552 the board of state canvassers determines that an individual has violated subsection (12), the board of state canvassers may impose 1 or more of the following sanctions:

(a) Impose on the organization or other person sponsoringthe petition drive an administrative fine of not more than $5,000.00.


(b) Charge the organization or other person sponsoringthe petition drive for the costs of canvassing a petition form on which a violation of subsection (8) or (10) occurred. (c) Disqualify an organization or other person described in

subdivision (a) from collecting signatures on a petition for a period of not more than 4 years.

(d) Disqualify obviously fraudulent signatures on apetition form on which a violation of subsection (8) or (10) occurred without checking the signatures against local registration records.

(14) If an individual refuses to comply with a subpoena ofthe board of state canvassers in an investigation of an alleged violation of subsection (8), (10), or (12), the board may hold the canvass of the petitions in abeyance until the individual complies.

(15) A person who aids or abets another in an act that isprohibited by this section is guilty of that act.

(16) The provisions of this section except asotherwise expressly provided apply to all petitions circulated under authority of the election law. (emphasis added)

Another statutory provision that may be relevant in this case is MCL 168.931, covering prohibited conduct punishable as a misdemeanor. The applicable portion of this statute is MCL 168.931(2):

(2) A person who violates a provision of this act for which apenalty is not otherwise specifically provided in this act, isguilty of a misdemeanor.

The final statutory provisions considered in this analysis are MCL 168.933a and MCL 168.937 concerning Election Law Forgery. MCL 168.933a, added by 2018, Act 620, effective 12/28/18, provides:

Sec. 933a. Except as otherwise provided in this act, a person who

does either of the following for any purpose under this act is guilty of forgery:

(a) Knowingly makes, files, or otherwise publishes a falsedocument with the intent to defraud.


(b) Knowingly makes, files, or otherwise publishes adocument that contains false signatures with the intent to defraud.

MCL 168.937 is the penalty provision for Election Law forgery. It provides that unless otherwise provided, forgery is a felony punishable by a fine or $1,000 and/or imprisonment of up to 5 years.

Other Conduct

The applicable statutes are clear on their face that certain types of conduct are illegal and subject to criminal sanctions. It is clear that a voter cannot sign someone else's name to a ballot question petition, that a person cannot make a false certification on such a petition, and that a circulator cannot sign his or her name to the ballot question petition until after the last voter signs the petition. MCL 168.544c. It is likewise clear that a person cannot make, file or otherwise publish any document required by the Election Law that contains false signatures with the intent to defraud. MCL 168.933a.

However, it must be noted at this point there is no statutory provision that expressly prohibits a circulator from making false statements about the purpose of the petition to a voter in an attempt to obtain the voter's signature. Evidently, the law presumes that the voter will read the wording on the petition before signing it and will rely on the language of the petition itself rather than the representations of the circulator. There is simply no provision in law that imposes a criminal sanction for making misrepresentations or outright lies to a voter to induce him or her to sign a ballot question petition.

Likewise, there are no statutory provisions that directly prohibit a circulator from simply advising a voter that he or she may sign their spouse's name, or the name of any other person, on a petition. It is clearly not permissible for a voter to sign someone else's name. However, the circulator would not directly commit a crime unless and until he or she actually signed the Certification Of Circulator on the petition, attesting to the fact that the voter's signature is believed to be the genuine signature of the voter.

But since it is a criminal offense for a voter to sign someone else's name, the circulator who indicates that it is permissible to do so is actually an "aider and abettor" to that crime. Thus there could be a theory under which the circulator could be prosecuted for telling a voter that it is permissible to sign a spouse's name even when the voter does not do so. When a circulator encourages a voter to sign someone else's name, knowing that such action would be illegal, and acts with the


intent to benefit from a payment for such additional signature, the argument would be that the circulator is guilty of attempting to violate MCL 168.544c, even if the voter does not actually sign the other person's name.

Analysis next turns to whether MCL 168.931(2) is broad enough to cover the conduct of circulators who intentionally misrepresent the purposes of a ballot question petition or engage in other questionable conduct not expressly covered by a statutory provision. That statutory provision states that anyone who violates a provision of the act (The Election Law, MCL 168.1 et seq.) for which a penalty is not specifically provided is guilty of a misdemeanor. There would thus be an argument that this is a "catch all" provision that creates a substantive offense concerning any and all duties imposed by The Election Law, MCL 168.1 et seq.

There is no Michigan case law directly addressing this issue. However, it is helpful to review the Michigan Supreme Court decision in People v Pinkney. 501 Mich. 259 (2018). There the defendant was charged under MCL 168.937 with Election Law Forgery. The Michigan Supreme Court there accepted the defendant's argument that the statute was simply a penalty provision and did not create a substantive offense and reversed his conviction. In its analysis the Court noted various provisions of the Election Law dealt with and penalized certain specific conduct, and the statutory language of MCL 168.937 indicates that the Legislature did not intend to create a substantive offense. As an aside it should be noted that in direct response to this decision the Legislature promulgated 2018, PA 620, which created the substantive offense at MCL 168.933a.

Given the opinion and analysis in Pinkney. supra, I conclude that MCL 168.931(2) is simply a penalty provision and not a substantive offense. Thus this statutory provision cannot be used as a basis for the criminal prosecution of circulators who engage in "bait and switch" and other tactics to get signatures for which they will be paid.

Prosecution Not Feasible

Investigation uncovered numerous violations of law. There can be no doubt that many of the statutes imposing criminal sanctions were violated during the circulating of the Unlock Michigan petitions. However, for a variety of reasons, criminal prosecution is simply not here feasible. The problem is simply one of proofs. There is a lack of sufficient admissible evidence to bring criminal charges. This can best be explained by examining the conduct of each of the suspects that were identified by the investigator.


Gretchen Hertz.

This agent provocateur may have been motivated by a sincere desire to ensure the integrity of the petition circulation process, but the tactics she used were problematic. She did not simply witness and record the actions of petition circulators but instead interjected herself into the situation by pointedly asking the circulator whether she could sign for her husband and implying that she would do so. She was fully aware that it was not lawful to do so. It would not be unfair to draw an analogy to a law enforcement officer sent into a massage parlor to determine if prostitution was occurring, and then having sex with one of the workers to prove that it was.

The Falcon's Nest video indicates that Ms. Hertz probably signed her husband's name to a petition. That would be a violation ofMCL 168.544c. Even though the name was crossed out after only a short time, the crime still occurred. However, it would simply not be possible to establish the crime without the video. And there simply is no foundation for the admission of the video into evidence without the self-incriminating acknowledgment of this suspect.

Likewise, the Howell Western Wear video provides good circumstantial evidence that Ms. Hertz signed her maiden name and a phony address to a petition at that location. Intentionally providing a false address on the petition could provide a basis for a charge of forgery under MCL 168.933a. However, the video would be necessary in order to prove that offense. And there is simply no basis by which a foundation could be made to admit the video into evidence other than the testimony of Ms. Hertz.

Ms. Hertz, an attorney, is exercising her right against self-incrimination and has refused to make any statements concerning the video. This really precludes any prosecution against her. All possible charges against her would require the admission of the videos into evidence, and without her no foundation could be made.

While criminal charges could not proceed against her, there remain questions as to her fitness to practice law given such behavior. This may be a case that warrants a referral to the Grievance Administrator.

Catherine Tomassoni

This suspect clearly violated a criminal statute by signing a petition as the circulator when she did not actually circulate that petition. However, the problem here is again one of proofs. The "corpus delicti" rule would here preclude the use of her confession since there is no other evidence to demonstrate the crime. Under that well established rule of law there must be some evidence of criminal activity before


February 24, 2021

a confession may be used as evidence. Here the petition she signed as the circulator appears valid on its face, and the only reason her criminal activity came to light was that she self-reported it to Unlock Michigan.

David Scott

Notwithstanding his denials, the evidence establishes that this paid petition circulator left petitions for voters to sign unattended at a store and signed petitions making certifications as a circulator before the voters signed the petition. This is most clearly demonstrated by the video from Howell Western Wear. However, that video could not be admitted into evidence without a foundation from Gretchen Hertz. And since Ms. Hertz will not cooperate without a grant of immunity, charges against Scott cannot be successful.

Here it must be recognized that the cooperation of Ms. Hertz would probably enable a prosecution against Mr. Scott. However, I recommend against immunity for Hertz. The misconduct and illegal activity that she committed would justify the same charges against her as those against Scott. This is not a case of giving up the little fish in order to catch the big one. And I fear that a jury could get sidetracked

by the agent provocateur tactics used by Hertz in the other videos. MCR 6.201(B) and Brady considerations would require the disclosure of the other videos.

Lynn Elberson

The owner of Howell Western Wear probably aided and abetted the improper circulation of petitions by allowing Scott to leave the petitions at her store for people to sign. However, we would once again face insurmountable problems with proof. She never circulated petitions or signed any petitions as circulator, and her admission that she allowed Scott to leave petitions at her store would here probably be barred by the corpus delicti rule. Without the video made by Hertz, we could not establish that Scott signed the petitions as the circulator before it was filled with signatures.

Eva Reyes

The video taken at the Brighton Farmers Market clearly shows that Ms.

Reyes told a person that it was all right to sign her husband's name. While not correct, such advice is not per se a violation of law. But the total facts and circumstances indicate that Reyes intended to have the person sign so that she could collect payment for an additional signature. There is a good argument to support the theory of aiding and abetting the crime of signing someone else's name.


But here again there is a problem of proofs. The Brighton video or the testimony of Getchen Hertz would be necessary to support charges against Ms. Reyes. Without the cooperation of Hertz, charges could not be sustained.

Cory Conrad

This young man is shown on the Falcon Nest video, interacting with Ms. Hertz when she seeks assurance that she can sign her husband's name. There is no evidence that he circulated any petitions or signed his name as circulator to any petitions. With out the admission of the video there is no evidence of any connection to the petitions at the Falcon Nest.

Nina Pittman

She is an owner of the Falcons Nest Restaurant and is shown in a video being

present for part of the time that the encounter with Hertz was being recorded. She identified herself as a volunteer petition circulator, and indicated that while the

petitions were spread out on a counter she was present when each person signed and could honestly make the required circulator certification. She indicated she was circulating the petitions because she believed in the ballot proposal.

The fact that the petitions were set out on a counter for voter signatures is not per se a violation of the Election Law. A circulator has the duty to ensure that the voter signs in his or her presence, and that he or she believes the voter is a qualified elector who is signing his or her own name. Since Ms. Hertz crossed out the name "michael Hertz" on the petition, Ms. Pittman never "certified" that signature.

Richard Williamson

There is simply no evidence of any criminal activity by Mr. Williamson. While he was a "plant" sent to document the information being provided to petition circulators, his question as to whether a petition could simply be left at a business

was appropriate under the circumstances. Unlike Ms. Hertz he never crossed the line between simply witnessing and recording events and inducing criminal conduct.

William Erik Tisinger

It would actually be charitable to say Mr. Tisinger exemplifies the worst of the worst in the occupation of professional petition circulators. The evidence indicates that he is fully aware of the requirements of law and takes relish in


finding ways around rules that would come between him and the money that can be made from circulating petitions.

During the training session he talked about ways to get around restrictions on circulating on private property. While he acknowledged the laws controlling circulators, he implied there are ways to get around those laws. He warns that while any violations of the laws might end up requiring a deposition or court appearance, he brags that it is easy to handle such proceedings. The totality of his comments present the "dog-whistle" argument that the important thing is to get signatures in any manner, so as to receive the greatest amount of money.

While the comments made by this suspect during the training session are unethical and possibly even immoral, they do not rise to the level supporting criminal charges. They simply are not sufficient to establish that he had the necessary intent to encourage or solicit criminal activity.

Conclusion:

Initiatives and Referendums are recognized procedures by which citizens in a democracy can voice their approval or disapproval of statutes enacted by a Legislature. The circulation of ballot question petitions is a time honored method of ensuring support by a significant number of voters before an issue is placed on the

ballot. However, the need for a substantial number of petition signatures to even get on the ballot has given rise to a cottage industry involving the use of paid circulators to obtain voter signatures on a petition. The amount of money often involved in petition issues has sometimes resulted in misconduct and illegal activity by paid petition circulators. The Legislature has attempted by statute to control signature collection efforts. But in a free society some corruption and misconduct is inevitable. It is the price to be paid to live in a free society.

Here Unlock Michigan, a ballot question committee, is seeking to rescind a statute enacted by the Legislature. Because of the huge number of voter signatures

required to even get the question on the ballot they hired contractors to select, train and supervise paid petition circulators. All evidence in the case indicates that the committee acted with due diligence to ensure as much as possible that the paid circulators were aware of the applicable provisions of law and would carry out the task in a professional and ethical manner. There is here no evidence that the committee encouraged, approved of, or tolerated any misconduct or sharp practices by a paid petition circulator.

The standards and practices of the paid circulator "culture" provide for compensation at a "per signature" rate, rather than at an hourly rate for their services. Here the paid circulators were generally paid at the rate of $3.50 for each


voter signature. This provides an incentive to maximize the payment by obtaining as many signatures as possible. Unfortunately, this has led to the "bait and switch" and other improper tactics used by circulators to encourage voters to sign their petitions.

While the Legislature has enacted various laws and procedures to protect the integrity of the petition, not all the "sharp practices" of petition circulators are punishable with criminal sanctions. As recognized by the fact that the affidavit requirement for paid circulators was found to be unconstitutional, there are limits on the Legislature's power to regulate the circulation of voter petitions.

Here the investigation found clear evidence of misrepresentations by petition circulators and questionable training by persons who recruited and were supposed

to supervise paid circulators. However, those incidents were not in violation of any criminal statute. It is questionable as to whether such questionable tactics could even be made criminal in a free society.

The investigation did, however, find incidents where the conduct went beyond being simply misconduct and questionable practices, and were actually violative of criminal statutes. However, in each of those identified instances there was simply insufficient admissible evidence to support criminal charges.

For these reasons I recommend that we close this file without further action.

Exhibit 3

STATE OF MICHIGAN IN THE COURT OF CLAIMS

KEEP MICHIGAN SAFE, Plaintiff, v BOARD OF STATE CANVASSERS and JOCELYN BENSON, in her capacity as Secretary of State, Defendants.

No. 21-000071-MZ HON. MICHAEL J. KELLY

Christopher M. Trebilcock (P62101) Vincent C. Sallan (P79888) Attorneys for Plaintiff 500 Woodward Avenue Detroit, Michigan 48226 313.965.8300 [email protected] [email protected]

Mark Brewer (P35661) Attorney for Plaintiff 17000 West Ten Mile Road Southfield, Michigan 48075 248.483.5000 [email protected]

Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendants PO Box 30736 Lansing, Michigan 48909 517.335.7659 [email protected] [email protected] /

STATE DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFF’S 4/14/21 MOTION FOR

TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION AND DECLARATORY RELIEF

ORAL ARGUMENT REQUESTED IF THE COURT SO ORDERS

DANA NESSEL

Attorney General Heather S. Meingast (P55439)

Erik A. Grill (P64713) Assistant Attorneys General April 21, 2021 Attorneys for Defendant

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mailto:[email protected]





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TABLE OF CONTENTS Page

Table of Contents ............................................................................................................................. i

Index of Authorities ........................................................................................................................ ii

Introduction ..................................................................................................................................... 1

Counter-Statement of Facts............................................................................................................. 1

Brief overview of the Secretary’s and the Board’s duties with respect to initiative petitions.................................................................................................... 1

1. Overview of the Secretary of State’s duties. ............................................... 2

2. Overview of the Board of State Canvassers’ duties. ................................... 3

The Unlock Michigan petition ................................................................................ 4

Procedural history ................................................................................................... 6

Argument ........................................................................................................................................ 7

Plaintiff’s motion must be denied where Plaintiff fails to establish the necessary factors for granting a temporary or preliminary injunction. ............................................... 7

Factors to be balanced in deciding a motion for injunctive relief. .......................... 7

Plaintiff fails to demonstrate a substantial likelihood of success on the merits on its claims. ................................................................................................ 8

1. Plaintiff is unlikely to succeed on the merits of its claims because they are barred by the doctrine of laches. ................................................... 8

2. Plaintiff is unlikely to succeed on the merits of its claims because there is no actual case or controversy supporting jurisdiction. ................. 11

3. Plaintiff is unlikely to succeed on the merits of its claims because the Secretary has not violated MCL 168.31(2). ........................................ 13

Plaintiff has not shown it will suffer irreparable harm absent an injunction. ....... 21

The balance of harms weighs in Defendants’ favor, and an injunction is contrary to the public interest. .............................................................................. 22

Conclusion and Relief Requested ................................................................................................. 23

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INDEX OF AUTHORITIES

Cases

Automobile Club of Michigan Committee for Lower Rates Now v Secretary of State (On Remand), 195 Mich App 613 (1992) .......................................................................................... 3

Central High School Athletic Ass'n v Grand Rapids, 274 Mich 147 (1936) ................................ 21

Charter Twp of Lyon v Petty, 317 Mich App 482 (2016) ............................................................... 8

Committee to Ban Fracking in Michigan v Board of State Canvassers, 2021 WL 218683 (January 21, 2021) .................................................................................................................... 12

Crookston v Johnson, 841 F3d 396 (CA 6, 2016) ........................................................................ 10

Detroit Fire Fighters Ass’n v Detroit, 482 Mich 18 (2008) ........................................................... 8

Dunlap v City of Southfield, 54 Mich App 398 (1974) ................................................................. 21

Federated Publications, Inc v City of Lansing, 467 Mich 98 (2002) ........................................... 13

Genesis Ctr, PLC v Comm’r of Fin & Ins Servs, 246 Mich App 531 (2001) ............................... 11

Gillis v Bd of State Canvassers, 453 Mich 881 (1996) ................................................................... 3

Herald Co, Inc v E Michigan Univ Bd of Regents, 475 Mich 463 (2006) .................................... 13

Kernen v Homestead Dev Co, 232 Mich App 503 (1998) ............................................................ 22

King v Reed, 278 Mich App 504 (2008) ....................................................................................... 13

Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349 (2010) ................................................ 11

Lash v Traverse City, 479 Mich 180 (2007) ................................................................................. 21

League of Women Voters of Michigan v Secretary of State, 2020 WL 7765755 (December 29, 2020) ................................................................................................................................... 11

Leininger v Secretary of State, 316 Mich 644 (1947) ..................................................................... 3

Mich AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich App 143 (2011) ........................................................................................................................................ 21

Mich Coal of State Emp Unions v Civil Serv Comm’n, 465 Mich 212 (2001) ............................... 7

Mich State Employees Ass'n v Dep't of Mental Health, 421 Mich 152 (1984) ......................... 7, 21

Michigan Ass'n of Home Builders v City of Troy, 504 Mich 204 (2019) ..................................... 21

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Michigan Civil Rights Initiative v Board of State Canvassers, 268 Mich App 506 (2005) ....... 3, 4

MSEA v Dep’t of Mental Health, 421 Mich 152 (1984) ................................................................. 8

New Democratic Coal v Austin, 41 Mich App 343 (1972) ........................................................... 10

Nken v Holder, 556 US 418 (2009) .............................................................................................. 22

People v Webb, 458 Mich 265 (1998) .......................................................................................... 13

Pharm Research & Mfrs of Am v Dep't of Cmty Health, 254 Mich App 397 (2002) ..................... 7

PT Today, Inc v Comm'r of Office of Fin & Ins Servs, 270 Mich App 110 (2006) ...................... 20

Shavers v Attorney General, 402 Mich 554 (1978) ...................................................................... 11

Skiera v Nat'l Indem Co, 165 Mich App 184 (1987) .................................................................... 21

Stand Up for Democracy v Sec’y of State, 492 Mich 588 (2012) ................................................... 3

Thomas M Cooley Law Sch v Doe 1, 300 Mich App 245 (2013) ................................................. 13

UAW v Central Michigan Univ Tr, 295 Mich App 486 (2012) .................................................... 11

Washington–Detroit Theatre Co v.Moore, 249 Mich 673 (1930) ................................................ 21

Wayne County v Auditor General, 250 Mich 227 (1930) ............................................................. 14

Statutes

MCL 168.2(j) .................................................................................................................................. 4

MCL 168.21 .................................................................................................................................... 2

MCL 168.31(1)(a) ......................................................................................................................... 15

MCL 168.31(2) ........................................................................................................... 14, 15, 16, 17

MCL 168.31(2)(a) ......................................................................................................................... 17

MCL 168.471 ............................................................................................................................ 2, 23

MCL 168.475 .................................................................................................................................. 4

MCL 168.476 ......................................................................................................................... passim

MCL 168.477 .......................................................................................................................... 2, 3, 4

MCL 168.477(2) ............................................................................................................................. 2

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MCL 168.480 .................................................................................................................................. 2

MCL 168.482e(1)(a), (4) .............................................................................................................. 18

MCL 168.482(3) ............................................................................................................................. 4

MCL 168.483a ................................................................................................................................ 4

MCL 168.544c(11) ....................................................................................................................... 18

MCL 168.544c(2) ................................................................................................................... 17, 18

MCL 168.544c(6) ......................................................................................................................... 17

MCL 168.544d ........................................................................................................................ 17, 18

MCL 168.552a(1) ......................................................................................................................... 18

MCL 168.552a(2) ......................................................................................................................... 18

MCL 168.648 .................................................................................................................................. 2

MCL 168.841 .................................................................................................................................. 3

MCL 168544c(8)(a) ...................................................................................................................... 18

MCL 24.207 .................................................................................................................................. 19

Other Authorities

1954 PA 302 ................................................................................................................................... 4

2005 PA 71 ............................................................................................................................. 15, 16

Rules

MCR 2.605 .................................................................................................................................... 11

MCR 2.605(1)(1) .......................................................................................................................... 10

MCR 3.310(A)(4) ........................................................................................................................... 8

Constitutional Provisions

Const 1963, art 2, § 1 .................................................................................................................... 17

Const 1963, art 2, § 4 ...................................................................................................................... 2

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INTRODUCTION

Plaintiff Keep Michigan Safe’s attempt to preemptively strike Unlock Michigan’s ballot

initiative should be rejected. Plaintiff claims that the Defendant Board of State Canvassers can

take no further action with respect to the petition because the Board’s longstanding processes for

canvassing ballot initiatives must first be promulgated as rules under the Administrative

Procedures Act. But Plaintiff sat on this argument for far too long. Indeed, the Board has

finished canvassing and all that it has left to do at this time is to vote on the sufficiency of the

petition, which it will do tomorrow, April 22. If the petition is determined to be sufficient,

Plaintiff has a remedy in the Michigan Supreme Court and can raise the same substantive

arguments and concerns regarding fraud it presents here directly to that Court. Of course, if the

Board determines the petition is insufficient, Plaintiff is not injured.

Where Plaintiff’s legal claim is untimely and its assertion of injury speculative, this Court

should reject Plaintiff’s attempt to circumvent the ordinary course of business and preclude the

Board from performing its constitutional and statutory duties.

COUNTER-STATEMENT OF FACTS

Brief overview of the Secretary’s and the Board’s duties with respect to initiative petitions.

The Michigan Constitution provides for the right of initiative, and states in part:

The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative . . . . To invoke the initiative . . . petitions signed by a number of registered electors, not less than eight percent for initiative . . . of the total vote cast for all candidates for governor at the last preceding general election at which a governor was elected shall be required.

* * * Any law proposed by initiative petition shall be either enacted or rejected by the legislature without change or amendment within 40 session days from the time such petition is received by the legislature. . . .

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If the law so proposed is not enacted by the legislature within the 40 days, the state officer authorized by law shall submit such proposed law to the people for approval or rejection at the next general election. . . . [Const 1963, art 2, § 9 (emphasis added).]

The Legislature has enacted laws to provide for the initiative process and prescribed

certain duties for the Secretary and the Board to perform.

1. Overview of the Secretary of State’s duties.

The Legislature has delegated the task of conducting proper elections to the Secretary of

State, an elected Executive-branch officer, and the head of the Department of State. Const 1963,

art 2, § 4, art 5, §§ 3, 9. Section 21 of the Michigan Election Law makes the Secretary the “chief

election officer” with “supervisory control over local election officials in the performance of

their duties under the provisions of this act.” MCL 168.21.

But the Secretary of State’s duties with respect to initiative petitions is limited. Citizens

Protecting Michigan’s Constitution, 280 Mich App 273, 286 (2008). The Secretary acts as the

filing official to receive petitions for referendum, initiative, and constitutional amendment. MCL

168.471. The first task attendant to the Secretary’s office is to “immediately” notify the Board

upon the filing of any petition. MCL 168.475(1). Thereafter, if the Board certifies the

sufficiency of the petition and approves the statement of purpose, the Secretary certifies the

statement of purpose to the counties, MCL 168.648, and communicates the ballot wording to the

media, counties, and local precincts. MCL 168.477(2), MCL 168.480. The Secretary must also

transmit the petition to the Legislature for enactment or rejection within 40 session days as

required by the Constitution. Const 1963, art 2, § 9. If the Legislature fails to enact the proposal

within the 40 days, the question is placed on the ballot. Id.

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2. Overview of the Board of State Canvassers’ duties.

The Board is a bi-partisan constitutional board created by Const 1963, art 2, § 7, and its

duties and responsibilities are established by law. See MCL 168.22, MCL 168.841. The

Legislature has empowered the Board to enforce the technical requirements set forth in the

Michigan Election Law relating to the circulation and form of various petitions, including

petitions to initiate legislation. With respect to petitions, generally the Board’s “duty . . . is

limited to determining the sufficiency of a petition’s form and content and whether there are

sufficient signatures to warrant certification.” Stand Up for Democracy v Sec’y of State, 492

Mich 588, 618 (2012).

These duties are generally ministerial in nature, and in reviewing a petition the Board

may not examine questions regarding the merits or substance of a proposal. Leininger v

Secretary of State, 316 Mich 644, 655-656 (1947). See also Gillis v Bd of State Canvassers, 453

Mich 881 (1996); Automobile Club of Michigan Committee for Lower Rates Now, 195 Mich App

at 624 (1992) (“[T]he Board of State Canvassers possesses the authority to consider questions of

form.”). And in performing its function, the Board may not look beyond the four corners of the

petition. Michigan Civil Rights Initiative v Bd of State Canvassers, 268 Mich App 506, 519-520

(2005).

The Board’s duties with respect to an initiative petition are two-fold. First, under MCL

168.476(1), the Board must canvass the petition to ascertain if the petition has been signed by the

requisite number of qualified and registered voters. The Board’s canvassing duties are carried

out by staff at the Bureau of Elections under the supervision of the Director of Elections, who

serves as a nonmember secretary to the Board. MCL 168.32(1), 168.34. Second, under MCL

168.477(1), the Board “shall make an official declaration of the sufficiency or insufficiency of an

initiative petition no later than 100 days before the election at which the proposal is to be

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submitted.”1 Essentially, the Board determines whether the petition has enough valid signatures,

and whether the petition is in the proper form.

In conducting this review, the Board is empowered to “hold hearings upon any

complaints filed or for any purpose considered necessary by the board to conduct investigations

of the petitions.” MCL 168.476(2). However, this investigatory power is confined to the

Board’s duties of determining whether there are sufficient signatures, and whether the petition is

in proper form. See Michigan Civil Rights Initiative, 268 Mich App at 516.

The Unlock Michigan petition

Unlock Michigan is a registered ballot question committee.2 So too is Plaintiff Keep

Michigan Safe.3 In June 2020, Unlock Michigan submitted its initiative petition to repeal the

Emergency Powers of Governor Act, 1954 PA 302, to the Board of State Canvassers for

approval as to form and for approval of the proposal’s summary. (Compl, Ex 8, Petition.)4 The

Board approved the form of the petition and its summary on July 6, 2020. (Compl, Ex 7, 7/6/20

Minutes.) Plaintiff Keep Michigan Safe filed a mandamus action against the Board and Director

of Elections Jonathan Brater challenging the summary of the proposal as approved, but the

complaint was denied. See Keep Michigan Safe v Board of State Canvassers, et al, Court of

1 One hundred days before the next election at which the Unlock Michigan proposal could be submitted to the electors is July 31, 2022, as the next election at which the proposal could be on the ballot is the November 2022 general election. Const 1963, art 2, § 9; MCL 168.2(j). 2 See Unlock Michigan’s electronic filings at Michigan Committee Statement of Organization (nictusa.com) (accessed April 20, 2021). 3 See Keep Michigan Safe’s electronic filings at Michigan Committee Statement of Organization (nictusa.com) (accessed April 20, 2021). 4 The statutes provide for the Board’s review of the petitions after they have been circulated and signatures obtained. See MCL 168.475, 168.476, 168.477. But for many years the Board has permitted committees to come before the Board and obtain pre-approval as to the form of their petitions before they are circulated. Committees may also obtain pre-approval of the 100-word summary of the proposal required to appear on a petition. MCL 168.482(3), 168.482b(1). All petition sponsors must file their petition with the Secretary of State before circulation. See MCL 168.483a.

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https://cfrsearch.nictusa.com/committees/519796




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Appeals Docket No. 354188, 8/17/20 Order denying complaint and Michigan Supreme Court

Case No. 161960, 9/25/20 Order denying leave to appeal.

In September 2020, Attorney General Dana Nessel opened a criminal investigation into

the circulation practices of the Unlock Michigan ballot proposal committee. (Ex A, 9/28/20

Press Release.) On October 2, 2020, Unlock Michigan filed its initiative petition with the

Secretary of State. (Compl, Ex 9, Challenge Deadline, 3/26/20.)5 Because this petition was filed

during the run up to the November 2020 general election, the Bureau of Elections determined it

could not begin to canvass the petition on behalf of the Board until after the New Year began.

The Bureau’s plan to canvass the petition in 2021 was challenged in a lawsuit filed by Unlock

Michigan; however, no relief was granted. See Unlock Michigan v Board of State Canvassers, et

al, Michigan Supreme Court Case No. 162132, 10/28/20 Order denying complaint.

In February 2021, counsel for Plaintiff Keep Michigan Safe wrote to the Board of State

Canvassers and requested that the Board suspend any canvassing activity with respect to the

Unlock Michigan petition until the Attorney General completed her criminal investigation. (Ex

B, 2/15/21 Letter.) Counsel threatened legal action if the Board did not do so. Id. The Board

considered Keep Michigan Safe’s request at its February 25, 2021 meeting but did not suspend

canvassing activity. Keep Michigan Safe did not file a lawsuit at that time.

The Bureau of Elections continued its canvass of the petition and on March 26, 2021,

announced the challenge deadline with respect to the Unlock Michigan petition and made the

signature sample for the petition available to the public. (Compl, Ex 9.) The deadline to submit

challenges to the petition expired on April 9, 2021. Id. On April 9, Keep Michigan Safe filed a

5 Unlock Michigan purportedly filed 539,000 signatures with the Secretary of State. See Campaign to limit Whitmer's power submits petitions amid investigation (detroitnews.com) (accessed April 20, 2021).

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challenge to Unlock Michigan’s petition. (Compl, Ex 10, Keep Michigan Safe Challenge.) So

too did private attorney Steven C. Liedel. (Ex C, Liedel Challenge.) In its challenge before the

Board of Canvassers, Keep Michigan Safe argues that the Board should investigate the

circulation practices of Unlock Michigan, that the Board’s petition and signature review

practices violate the Administrative Procedures Act (APA) because they were not promulgated

as rules, that the form of the petition is defective, including the summary, and that there are

insufficient valid signatures. (Compl., Ex 10.)

On April 19, 2021, the Bureau released its staff report with the results of the canvass,

including the canvass of the signature sample, and recommended that the Board certify the

petition as sufficient. (Ex D, 4/19/21 Staff Report.) The same day, the Board issued its public

meeting notice for a meeting to be held on April 22, 2021, to determine the sufficiency of the

Unlock Michigan petition.6

Procedural history

On April 14, 2021, Keep Michigan Safe filed the instant complaint for declaratory and

injunctive relief, along with a motion for a temporary restraining order (TRO) and declaratory

and injunctive relief. In its complaint, Keep Michigan Safe argues that Secretary of State

Jocelyn Benson has violated MCL 168.31(2) by failing to promulgate signature review standards

under the APA, and because the Board’s current signature review standards were not

promulgated under the APA, they cannot be used to review Unlock Michigan’s petition.

(Compl, ¶¶ 2-6.) As a result, Keep Michigan Safe requests an injunction blocking the Board

from reviewing the petition until Secretary Benson properly promulgates rules. Id., ¶ 7.

6 See meeting notice, available at BSC Meeting Notice (michigan.gov) (accessed April 20, 2021).

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On April 15, 2021, this Court issued an order requiring Defendants Benson and the Board

to respond to the motion for injunctive relief by April 21, and for Plaintiff to reply by April 23,

2021. (4/15/21 Order.) Also on April 15, Unlock Michigan filed a motion to intervene in this

matter, but then withdrew the motion on April 16, 2021. This Court granted the motion to

intervene on April 16. In response Plaintiff Keep Michigan Safe moved for reconsideration

regarding the Court’s order granting intervention in light of the decision in Council of

Organizations & Others for Education about Parochiaid v State, 321 Mich App 456 (2017).

Also on April 15, staff at the Bureau of Elections advised counsel for Keep Michigan

Safe and Unlock Michigan that the Board was planning to meet on April 22, 2021 to consider the

sufficiency of the Unlock Michigan petition. In response, on April 16 Keep Michigan Safe filed

a second motion for a temporary restraining order. The Court has not ordered a response to that

motion. On April 19, 2021, Unlock Michigan filed a response in opposition to Plaintiff’s motion

for a TRO or preliminary injunction. Finally, on April 21, 2020, Attorney General Nessel issued

a press statement and accompanying memorandum explaining that the Department of Attorney

General had concluded its investigation of Unlock Michigan and was not recommending that any

charges be filed. (Ex G, 4/21/21 Press Release).

ARGUMENT

Plaintiff’s motion must be denied where Plaintiff fails to establish the necessary factors for granting a temporary or preliminary injunction.

Factors to be balanced in deciding a motion for injunctive relief.

A TRO or preliminary injunction is extraordinary relief and “should issue only in

extraordinary circumstances.” Mich State Emps Ass’n v Dep’t of Mental Health, 421 Mich 152,

157, 158 (1984); Mich Coal of State Emp Unions v Civil Serv Comm’n, 465 Mich 212, 226 n11

(2001). This relief serves only one purpose – “to preserve the status quo pending a final hearing,

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enabling the rights of the parties to be determined without injury to either party.” Pharm

Research & Mfrs of Am v Dep't of Cmty Health, 254 Mich App 397, 402 (2002). The Michigan

Supreme Court has held that, in order to obtain a preliminary injunction, plaintiffs must prove

that: (1) they are likely to prevail on the merits; (2) they will be irreparably harmed if an

injunction is not issued; (3) the harm to plaintiffs absent an injunction outweighs the harm that an

injunction would cause the Defendant(s); and (4) there will be no harm to the public interest if an

injunction is issued. Detroit Fire Fighters Ass’n v Detroit, 482 Mich 18, 34 (2008); MSEA v

Dep’t of Mental Health, 421 Mich 152, 157-158 (1984). And when seeking injunctive relief,

plaintiffs have the burden of proof on each of these factors. Detroit Fire Fighters Ass’n, 482

Mich at 34; MCR 3.310(A)(4).

Plaintiff fails to demonstrate a substantial likelihood of success on the merits on its claims.

1. Plaintiff is unlikely to succeed on the merits of its claims because they are barred by the doctrine of laches.

As an initial matter, Defendants assert that Plaintiff’s claims are barred by laches. “The

doctrine of laches is founded upon long inaction to assert a right, attended by such intermediate

change of conditions as renders it inequitable to enforce the right.” Charter Twp of Lyon v Petty,

317 Mich App 482, 490 (2016) (quotation marks and citation omitted). “The application of the

doctrine of laches requires the passage of time combined with a change in condition that would

make it inequitable to enforce the claim against the defendant.” Id. (citation omitted). To merit

relief under this doctrine, the complaining party must establish prejudice as a result of the delay.

Id. (citations omitted). Proof of prejudice is essential to the defense of laches. Id.

Plaintiff argues in its complaint and motion for injunctive relief that the Secretary of State

has violated MCL 168.31(2) by failing to promulgate uniform standards for petition signatures

and that the Board should be enjoined from determining the sufficiency of the Unlock Michigan

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petition until rules can be promulgated. But Plaintiff has unreasonably delayed raising this claim

before this Court.

As Plaintiff notes, § 31(2) has been mandatory for over a decade and thus Plaintiff has

had notice of its terms. The Unlock Michigan petition was filed six months ago with the

Secretary on October 2, 2020. Where was Plaintiff with its APA argument in October before the

Bureau of Elections began canvassing the petition? The Genetski lawsuit challenging the

signature standards under the APA was filed November 2, 2020. Where was Plaintiff with its

APA argument in November, again before canvassing began? On February 15, 2021, Plaintiff

wrote a letter to the Board threatening litigation if the Board did not stop the canvass until the

Attorney General had completed her investigation. Why didn’t Plaintiff raise the APA issue

then? Instead, Plaintiff waited to file this lawsuit and bring this claim until April 14, 2021.

But the Bureau of Elections had, for all practical purposes, completed its canvass by

March 26, 2021—the date it announced that the signature sample for the Unlock Michigan

petition was available. The only duties the Bureau had left to do was to canvass the 500

signatures in the sample, assess the challenges, and prepare a staff report for the Board

recommending a disposition as to the sufficiency of the petition. The Bureau has completed

those duties and the Board will meet to determine the sufficiency of the petition tomorrow, April

22.

Under Plaintiff’s argument and request for relief, Defendants would have to re-canvass

the Unlock Michigan petition all over again at some point in the future. Moreover, Defendants

are currently canvassing an initiative petition filed by Fair and Equal Michigan.7 If Plaintiffs

7 Fair and Equal Michigan filed its petition with almost 500,000 signatures with the Secretary of State on October 13, 2020. See Media Release Center | Fair and Equal Michigan (accessed April 20, 2021).

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were to prevail on the APA claim, Defendants would presumably have to halt canvassing of Fair

and Equal Michigan’s petition. This result would unquestionably prejudice the Secretary and the

Board. It would require the Bureau to incur the time and expense of recanvassing both petitions

at or about the same time, and since there would be no certainty as to when that would occur

given that rulemaking can take up to a year, (Ex E, Rulemaking Manual, p 30), it is unclear what

other Bureau functions recanvassing would interfere with, i.e., conducting elections, reviewing

other petitions. But not only does the requested relief prejudice Defendants, it would prejudice

Unlock Michigan and Fair and Equal Michigan, who circulated their petitions in reliance on the

current state of the law. It would be patently unfair to require Defendants to promulgate

administrative rules and retroactively apply them to petitions that have already been filed, where

the sponsors have no opportunity to strike noncompliant signatures or take whatever other steps

are necessary to comply to with the new rules.

Courts are generally loath to change election processes late in the game. See, e.g., New

Democratic Coal v Austin, 41 Mich App 343, 356-357 (1972) (“Courts can reasonably endeavor

to avoid unnecessarily precipitate changes that would result in immense administrative

difficulties for election officials.); Crookston v Johnson, 841 F3d 396, 398 (CA 6, 2016). Here,

while the 2022 election may seem far off, canvassing takes a significant amount of time, and

both initiative petitions, if declared sufficient, must be presented to the Legislature for its 40-day-

review period before they can be placed on the ballot. Under these circumstances, Plaintiff has

unreasonably delayed in raising its claims before this Court, and the consequences of Plaintiff’s

delay will prejudice Defendants. This Court should refuse to issue an injunction based on the

doctrine of laches.

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2. Plaintiff is unlikely to succeed on the merits of its claims because there is no actual case or controversy supporting jurisdiction.

Plaintiff’s claims also fail because there is no actual controversy. MCR 2.605(A)(1)

provides that “[i]n a case of actual controversy within its jurisdiction, a Michigan court of record

may declare the rights and other legal relations of an interested party seeking a declaratory

judgment, whether or not other relief is or could be sought or granted.” “MCR 2.605 does not

limit or expand the subject-matter jurisdiction of the courts, but instead incorporates the

doctrines of standing, ripeness, and mootness.” UAW v Central Michigan Univ Tr, 295 Mich

App 486, 495 (2012). UAW, 295 Mich App at 495. Thus, when a plaintiff meets the

requirements of MCR 2.605,—i.e. when it can “plead and prove facts which indicate an adverse

interest necessitating the sharpening of the issues raised”—“it is sufficient to establish standing

to seek a declaratory judgment.” Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372 n

20 (2010), quoting Shavers v Kelley, 402 Mich 554, 589 (1978) (holding that an “ ‘actual

controversy’ exists where a declaratory judgment or decree is necessary to guide a plaintiff's

future conduct in order to preserve his legal right”). “Though ‘a court is not precluded from

reaching issues before actual injuries or losses have occurred,’ there still must be ‘a present legal

controversy, not one that is merely hypothetical or anticipated in the future.’ ” League of Women

Voters of Michigan v Secretary of State, 2020 WL 7765755 at *11 (December 29, 2020)

(citations omitted). “The existence of an ‘actual controversy’ is a condition precedent to

invocation of declaratory relief.” Shavers, 402 Mich at 588; see also Genesis Ctr, PLC v

Comm’r of Fin & Ins Servs, 246 Mich App 531, 544 (2001).

Any injury to Plaintiff at this time is hypothetical or speculative. Plaintiff will only be

injured if the Board determines that the Unlock Michigan petition is in the proper form and

contains sufficient signatures for placement on the ballot. MCL 168.476. Plaintiff filed a

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challenge to the petition, which is pending before the Board, and raises the instant APA claim

along with a plethora of alleged defects in the form of the petition and its previously approved

summary. (Compl, Ex 10). If the Board is persuaded by any of these arguments, or the

arguments presented in the Liedel challenge, it presumably will determine the petition to be

insufficient. And in that case Plaintiff will suffer no injury, and this lawsuit will be superfluous.

If the Board rejects Plaintiff’s challenges, including the form challenges that are not

before this Court, Plaintiff has an express remedy. Section 479 provides:

(1) Notwithstanding any other law to the contrary and subject to subsection (2), any person who feels aggrieved by any determination made by the board of state canvassers may have the determination reviewed by mandamus or other appropriate remedy in the supreme court.

(2) If a person feels aggrieved by any determination made by the board of state canvassers regarding the sufficiency or insufficiency of an initiative petition, the person must file a legal challenge to the board's determination in the supreme court within 7 business days after the date of the official declaration of the sufficiency or insufficiency of the initiative petition or not later than 60 days before the election at which the proposal is to be submitted, whichever occurs first. [MCL 168.479(1)-(2).]

Indeed, given the “notwithstanding” language, it is unclear whether this Court even has

subject matter jurisdiction over the Board. See, e.g., Committee to Ban Fracking in Michigan v

Board of State Canvassers, 2021 WL 218683 at *3-5 (January 21, 2021) (concluding that

plaintiff committee’s sole remedy was to file legal action in Michigan Supreme Court, which it

had done and been denied relief). Regardless, the facts do not show a need for sharpening of the

issues by this Court. Further, a declaratory judgment is not necessary to guide Plaintiff's future

conduct in order to preserve a legal right. Plaintiff can continue to oppose Unlock Michigan’s

petition regardless of what processes the Board utilizes and even if the petition is determined to

be sufficient. In the event Plaintiff becomes aggrieved by a determination made by the Board

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with respect to the Unlock Michigan petition, Plaintiff has a remedy by filing in the Michigan

Supreme Court. But at this time, Plaintiff’s claim for declaratory relief fails.

Alternatively, Plaintiff’s claim for declaratory and injunctive relief is effectively moot.

Once an issue becomes moot, there is no longer an “actual controversy.” See Thomas M Cooley

Law Sch v Doe 1, 300 Mich App 245, 254 (2013) (explaining that “courts exist to decide actual

cases and controversies,” and “will not decide moot issues”) (emphasis added); People v

Richmond, 486 Mich 29, 35 (2010) ( explaining that “a case is moot when it presents nothing but

abstract questions of law which do not rest upon existing facts or rights”) (internal quotation

marks omitted). And it is well-established that Michigan Courts “do[ ] not reach moot questions

or declare principles or rules of law that have no practical legal effect[.]” Federated

Publications, Inc v City of Lansing, 467 Mich 98, 112 (2002), abrogated on other grounds in

Herald Co, Inc v E Michigan Univ Bd of Regents, 475 Mich 463 (2006). For the same reasons

discussed above in the laches argument, Plaintiff’s claims for declaratory and injunctive relief

are moot since the Board has finished the canvass of Unlock Michigan’s petition. Further,

should the Board approve Unlock Michigan’s petition as sufficient at its April 22 meeting, this

case will clearly be moot since the Board will have acted and any legal challenge to its

sufficiency determination must be brought under MCL 168.479 in the Supreme Court.

3. Plaintiff is unlikely to succeed on the merits of its claims because the Secretary has not violated MCL 168.31(2).

Turning to the merits of Plaintiff’s claims, this Court is no stranger to questions of

statutory interpretation and the following principles will be familiar. Michigan statutes must be

interpreted to “ascertain and give effect to the intent of the legislature.” People v Webb, 458

Mich 265, 274 (1998). Courts “begin by examining the language of the statute,” using this to

“discern and give effect to the Legislature’s intent through reasonable construction in

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consideration of the purpose of the statute and the object sought to be accomplished.” King v

Reed, 278 Mich App 504, 515-516 (2008). Moreover, where, as here, the specific provision at

issue (MCL 168.31(2)) falls within a broader statutory scheme (Michigan Election Law) and

effectuates a right incorporated into the State Constitution, Const 1963, art 2, § 9, the statute

must be read in the context of this broader scheme. Wayne County v Auditor General, 250 Mich

227, 234 (1930) (recognizing that “[a]ll consistent statutes which can stand together… relating to

the same subject, and hence briefly called statutes in pari materia, are treated prospectively and

construed together as though they constituted one act.)

In 1999, the Legislature amended various sections of the Michigan Election Law to

provide that the qualified voter file may be used to determine the validity of signatures on

petitions, whether nominating, recall, or initiatives, by verifying the registration of signers. See

1999 PA 219,8 1999 PA 220.9 As part of those amendments, the Legislature amended § 31 to

provide that the Secretary may promulgate rules to establish uniform standards for petition

signatures:

(2) Pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, the secretary of state may promulgate rules establishing uniform standards for state and local nominating, recall, and ballot question petition signatures. The standards for petition signatures may include, but need not be limited to, standards for all of the following:

(a) Determining the validity of registration of a circulator or individual signing a petition.

(b) Determining the genuineness of the signature of a circulator or individual signing a petition.

(c) Proper designation of the place of registration of a circulator or individual signing a petition. [MCL 168.31(2), as added by 1999 PA 220 (emphasis added).]

8 See Michigan Legislature - House Bill 5061 (1999) (accessed April 20, 2021). 9 See Michigan Legislature - House Bill 5064 (1999) (accessed April 20, 2020).

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http://www.legislature.mi.gov/(S(dydoag01c5fiq4yuq03ya2ju))/mileg.aspx?page=getObject&objectName=1999-HB-5061

http://www.legislature.mi.gov/(S(dydoag01c5fiq4yuq03ya2ju))/mileg.aspx?page=getObject&objectname=1999-HB-5064

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In 2005, the Legislature made additional amendments to the Michigan Election Law.

Public Act 71 of 2005 amended the law to require that the qualified voter file contain the

digitized signatures of electors, and to require the use of these digitized signatures for the

purpose of determining the genuineness of signatures on petitions if the file contained a digitized

signature. See 2005 PA 71.10 Relevant here, § 476 was amended to require the Board to use the

qualified voter file with respect to signatures on initiative petitions: “The qualified voter file

shall be used to determine the validity of petition signatures by verifying the registration of

signers and the genuineness of signatures on petitions when the qualified voter file contains

digitized signatures.” MCL 168.476(1).

Along with this amendment, the Legislature amended § 31(2) to require that the

Secretary of State promulgate rules to establish uniform standards for petition signatures but kept

the permissive “may” with respect to the three example standards:

(2) Pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, the secretary of state shall promulgate rules establishing uniform standards for state and local nominating, recall, and ballot question petition signatures. The standards for petition signatures may include, but need not be limited to, standards for all of the following . . . [MCL 168.31(2) (emphasis added).]

These amendments took effect January 1, 2007. See 2005 PA 71, Enacting section 3. As

Plaintiff observes neither of the previous Secretaries of State, Terri Lynn Land and Ruth

Johnson, promulgated rules under § 31(2), nor has Secretary Benson done so since taking office

in January of 2019.

While the Secretary has not promulgated rules, she has provided instructional guidance

for circulating initiative petitions. Section 31(1) provides that the Secretary “shall . . . issue

instructions” “for the conduct of elections . . . in accordance with the laws of this state,” and shall

10 See Michigan Legislature - Senate Bill 0513 (2005) (accessed April 21, 2021).

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“[p]rescribe and require uniform forms, notices, and supplies the secretary of state considers

advisable for use in the conduct of elections[.]” MCL 168.31(1)(a), (e). Secretary Benson has

published a comprehensive instructional document entitled Sponsoring a Statewide Initiative,

Referendum or Constitutional Amendment Petition. (Compl, Ex 1.) This document walks

through the petition process from circulation to filing. Id. There are also related instructions for

circulating countywide petition forms, (Compl, Ex 2), and city/township petition forms.11

Although the “sponsoring an initiative” publication summarizes the canvassing and

random sampling process used by the Bureau on behalf of the Board to determine the number of

valid signatures, (Compl, Ex 1, pp 10-11), it does not prescribe how Bureau staff conduct

signature verifications. However, staff have long followed the same principles the Bureau has

advised local clerks to use when comparing signatures on absent voter ballots. As Plaintiffs

note, the Court of Claims held on March 9, 2021 in a different case that the signature verification

standards were invalid because they had not been promulgated under the APA. (Compl, Ex 10,

Attachment 1, Genetski v Secretary of State et al, COC Case No. 20-000216-MM.) The Court’s

decision was premised on the fact that compliance with the standards and the terms therein was

mandatory. Id. The Bureau has re-issued the signature verification guidance removing the

mandatory element and making other changes to conform with the Court’s opinion. (Ex F,

Signature Verification guidance). Again, these standards reflect the Bureau’s practices with

respect to signature comparisons, including any signature comparisons performed with respect to

the Unlock Michigan petition. Id., pp 2-4.

11 See Circulating and Canvassing City/Township Petition Forms (April 2020), August 29, 1997 (michigan.gov) (accessed April 20, 2021).

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https://www.michigan.gov/documents/sos/ED-106_Circulating_CityTwp_Nom_+_Qual_Pet_Forms_647901_7.pdf

https://www.michigan.gov/documents/sos/ED-106_Circulating_CityTwp_Nom_+_Qual_Pet_Forms_647901_7.pdf

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Defendants acknowledge that § 31(2), as amended by 2005 PA 71, provides that the

Secretary “shall promulgate rules.” MCL 168.31(2). The statute refers to “uniform standards for

state and local nominating, recall, and ballot question petition signatures.” Id. Because these

standards are to apply to all different types of petitions, their scope would be limited to

procedures that would apply uniformly to each type of petition. And the scope of the standards

is further limited to standards for “petition signatures.” The Legislature gave three examples of

possible standards: (a) a standard for determining the validity of the registration of a circulator or

individual signing a petition; (b) a standard for determining the genuineness of the signature of a

circulator or individual signing a petition, including digitized signatures; and (c) a standard for

determining the proper designation of the place of registration of a circulator or individual

signing a petition. MCL 168.31(2)(a)-(c). Notably, (a) and (c) would not apply to circulators

because circulators are not required to be registered voters.

These examples demonstrate that the Legislature’s concerns lay with a signer’s

registration status and the genuineness of the signer’s signature. Outside of those issues it is

unclear what other types of standards the Legislature contemplated could or would be

promulgated as “uniform standards . . . for petition signatures.” MCL 168.31(2).

With respect to registration the law is comprehensive. For example, regarding initiative

petitions like Unlock Michigan’s, for a signature to count, the voter must be registered within the

city or township the voter designates on the petition at the time of signing. MCL 168.544c(6),

168.544d, 168.476(1). See also Const 1963, art 2, §§ 1, 9. And under § 476, the QVF must be

used to verify the registration of petition signers:

. . . . The qualified voter file shall be used to determine the validity of petition signatures by verifying the registration of signers . . . . If the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote, there is a rebuttable presumption that the signature is invalid. If

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the qualified voter file indicates that, on the date the elector signed the petition, the elector was not registered to vote in the city or township designated on the petition, there is a rebuttable presumption that the signature is invalid. . . . [MCL 168.476(1) (emphasis added).]

When voters sign initiative petitions, they must include their street address or rural route,

and their city or township if signing a countywide petition form. MCL 168.544c(2), (6),

168.544d, 168.482(6). If a voter fails to include his or her street address or rural route, the

signature cannot be counted. MCL 168.544c(2). The voter, however, can include a mailing

address if the mailing address incorporates the political jurisdiction in which the person is

registered to vote. MCL 168.552a(2). Also, if a voter fails to designate his or her city or

township on the petition, that will not invalidate the signature if the city and an adjoining

township have the same name. MCL 168.552a(1). Using this information, Bureau staff will

look up the signer in the QVF to determine if the voter was, in fact, registered to vote “in the city

or township designated on the petition” on the day of signing. MCL 168.476(1). Virtually every

part of this review process is dictated by statute (or the constitution).

Turning to signatures, voters must include their signatures on an initiative petition to be

counted. MCL 168.544c(2), 168.544d, 168.482(6). And a signature will not be counted if it is

not, in fact, the voter’s signature. MCL 168544c(8)(a), 168.482e(1)(a), (4). Circulators must

sign their names as well or the petition sheet will be invalid. MCL 168.544c(5), 168.482(6). But

there is no specific statute requiring the Board of Canvassers to determine the genuineness of

circulator signatures as part of the canvass.12 Section 476 only requires the Board to “canvass

12 It is unlawful for a person to sign as a circulator if not a circulator, or to sign a name as circulator other than the person’s own name. See MCL 168.544c(8)(c), (d), 168.482(e)(1)(c), (d). This type of wrongdoing would generally be brought to the attention of the Board of Canvassers via a complaint or challenge submitted and resolved under MCL 168.476(2)-(3). See also MCL 168.544c(11).

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the petitions to ascertain if the petitions have been signed by the requisite number of qualified

and registered electors.” MCL 168.476(1) (emphasis added).

As with registration verification, the QVF must be used to verify the genuineness of a

voter’s signature unless the voter does not have a digitized signature on file:

. . . . The qualified voter file shall be used to determine the validity of petition signatures by verifying . . . the genuineness of signatures on petitions when the qualified voter file contains digitized signatures. . . . If the board is unable to verify the genuineness of a signature on a petition using the digitized signature contained in the qualified voter file, the board may cause any doubtful signatures to be checked against the registration records by the clerk of any political subdivision in which the petitions were circulated, to determine the authenticity of the signatures or to verify the registrations. . . . [MCL 168.476(1).]

To perform this review, Bureau staff pull up the voter in the QVF and compare the

voter’s digitized signature with the voter’s handwritten signature on the petition. As noted

above, there is no rule or specific instructional document advising Bureau staff as to how to

perform signature comparisons. But the longstanding practice of staff has been to utilize the

same principles identified in the guidance document for comparisons related to absent voter

ballots. (Ex F, pp 2-4.)

A uniform standard for performing signature comparisons to verify the genuineness of

petition signatures is one of the three potential standards the Legislature identified in § 31(2).

However, the Legislature’s use of the phrase “may include, but need not be limited to” before

listing the three potential “standards” suggests that while the Secretary could promulgate these

standards, she could also choose not to promulgate those standards and instead promulgate other

uniform standards of her choosing.

Furthermore, as Defendants understand § 31(2), to require promulgation under the APA

any proposed standard would still have to meet the definition of a “rule.” See MCL 24.207

(“‘Rule’ means an agency regulation, statement, standard, policy, ruling, or instruction of general

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applicability that implements or applies law enforced or administered by the agency, or that

prescribes the organization, procedure, or practice of the agency[.]”) With respect to the

Bureau’s process for verifying a signer’s registration, the Bureau does little more than follow the

text of the relevant statutes. A rule of this type would be redundant and not necessarily required

to be promulgated. And the Court’s decision in Genetski simply confirms what the Legislature

had already determined here—that a uniform standard for signature verification would be an

appropriate rule—should the Secretary determine to make such a standard.

And finally, while the delayed effective date of the 2005 amendment was perhaps

intended to give the then Secretary of State time to promulgate standards, § 31(2) does not

contain an express date by which standards had to be promulgated. Indeed, if the Legislature had

intended a fixed deadline for making rules, it simply could have provided for that in the text of §

31(2) itself.

Thus, while § 31(2) does mandate that the Secretary promulgate uniform standards for

petition signatures, given the lack of definiteness regarding the content of the required standards

and the lack of an express deadline, Plaintiff cannot demonstrate a substantial likelihood of

success on its claim that the Secretary has violated this statute.

But even if this Court finds some merit in Plaintiff’s claim, the Court should nevertheless

exercise its discretion to deny the request for declaratory relief under the facts of this case. “The

language of MCR 2.605 is permissive rather than mandatory; thus, it rests with the

sound discretion of the court whether to grant declaratory relief.” PT Today, Inc v Comm'r of

Office of Fin & Ins Servs, 270 Mich App 110, 126 (2006). This is true even if a case or

controversy exists. Allstate Ins Co v Hayes, 442 Mich 56, 74 (1993) (“Assuming the existence

of a case or controversy within the subject matter of the court, the determination to make such a

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declaration is ordinarily a matter entrusted to the sound discretion of the court.”) (citation

omitted).

Here, Plaintiff’s unreasonable delay in bringing suit and the prejudice it creates, its

tenuous claim as to the existence of a case or controversy, and its weak merits argument supports

exercising discretion to deny declaratory relief. Furthermore, “[i]t has [ ] been held that, as part

of the requirement that there be an actual controversy, it is necessary that all the interested

parties be before the court.” Skiera v Nat'l Indem Co, 165 Mich App 184, 188 (1987), citing

Washington–Detroit Theatre Co v.Moore, 249 Mich 673 (1930); Central High School Athletic

Ass'n v Grand Rapids, 274 Mich 147 (1936). Unlock Michigan is clearly an interested party, and

Fair and Equal Michigan may be as well. While this Court has presently granted Unlock

Michigan intervention, it is unclear whether that decision will be sustained in light of the

decision in Council of Organizations & Others for Education about Parochiaid. If Unlock

Michigan cannot participate here, that circumstance further warrants denying Plaintiff’s request

for declaratory relief.

Plaintiff has not shown it will suffer irreparable harm absent an injunction.

In order for a preliminary injunction to be granted, Plaintiff must make a “‘particularized

showing of irreparable harm that will occur before the merits of the claim are considered.’”

Michigan Ass'n of Home Builders v City of Troy, 504 Mich 204, 225 (2019), quoting Lash v

Traverse City, 479 Mich 180, 196 (2007). This “indispensable” requirement must be evaluated

“in light of the totality of the circumstances affecting, and the alternatives available to, the party

seeking injunctive relief.” Mich State Employees Ass'n v Dep't of Mental Health, 421 Mich 152,

167 (1984). “[I]t is well settled that an injunction will not lie upon the mere apprehension of

future injury or where the threatened injury is speculative or conjectural.”

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https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=2b7acdd2-d736-49d4-a3c1-2e990c3d3d5d&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A533Y-P951-F04G-Y0XD-00000-00&pdpinpoint=PAGE_145_3223&pdcontentcomponentid=7783&pddoctitle=Mich+AFSCME+Council+25%2C+293&pdproductcontenttypeid=urn%3Apct%3A30&pdiskwicview=false&ecomp=xsL2k&prid=a7f7b9b7-0c03-42e3-93ff-ab957e9134bf



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Southfield, 54 Mich App 398, 403 (1974), quoted in Mich AFSCME Council 25 v Woodhaven-

Brownstown Sch Dist, 293 Mich App 143, 149 (2011).

The “totality of the circumstances” surrounding Plaintiff’s alleged irreparable harm

counsel against a finding of irreparable harm. First, as discussed above, Plaintiff will only be

injured by the Board’s alleged unlawful practices if the Board approves the sufficiency of the

Unlock Michigan petition. But the Board has not done so yet, and it is possible that it may not.

So, Plaintiff’s injury remains speculative. Outside that scenario, Plaintiff’s injury is only

abstract—the right or interest in having some yet-to-be determined regulations adopted, that may

or may not be any different than the Board’s current processes. This is insufficient to

demonstrate irreparable harm. Second, given Plaintiff’s delay in filing this case, its claim of

irreparable harm rings hollow. An unreasonable delay in filing suit has long been a factor

evaluated in the decision whether to grant injunctive relief—and it weighs heavily against the

Plaintiff here. See, e.g., Kernen v Homestead Dev Co, 232 Mich App 503, 514-515 (1998).

And third, Plaintiff has an alternative and more appropriate remedy. If the Board approves the

petition, Plaintiff, as an aggrieved party, may file an action in the Michigan Supreme Court for

mandamus or any “appropriate remedy” under MCL 168.479.

Plaintiff has failed to demonstrate any irreparable harm that would warrant the

extraordinary relief of a temporary or preliminary injunction at this late hour. Thus, its request

for injunctive relief must be denied.

The balance of harms weighs in Defendants’ favor, and an injunction is contrary to the public interest.

The remaining factors, “harm to the opposing party and weighing the public interest . . .

merge when the Government is the opposing party.” Nken v Holder, 556 US 418, 435 (2009).

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While Plaintiff has failed to show any harm to it without an injunction, the issuance of the

requested injunction will irreparably harm Defendants.

As discussed above in the laches argument, the requested injunction would halt the

Board’s determination of the sufficiency of the Unlock Michigan petition and require the Board,

through the Bureau of Elections, to recanvass the petition at some distant point in the future after

rules have been promulgated. This will cause Defendants to incur needless expense and hamper

the Bureau’s ability to perform its other essential duties. For instance, if rule promulgation takes

a year, if Defendants started the process today and were successful by this time in April of 2022,

the Bureau will be deep in the nominating petition process for the August 2022 primary election.

Moreover, the deadline for filing initiative petitions for placement on the November 2022

election ballot is June 1, 2022. MCL 168.471. It is likely that additional ballot proposals will be

filed at that time, and the Board and the Bureau would be faced with attempting to canvass more

petitions with hundreds of thousands of signatures than is normal or necessary if the Bureau is

recanvassing Unlock Michigan’s petition, along with Fair and Equal Michigan’s petition.

In addition, enjoining the constitutional process of allowing voters to initiate legislation

based on nebulous procedural concerns that could have and should have been raised far in

advance of this date is plainly contrary to the public interest. This Court should deny Plaintiffs’

request for a preliminary injunction.

CONCLUSION AND RELIEF REQUESTED

For these reasons, Defendants Secretary of State Jocelyn Benson and the Board of State

Canvassers respectfully request that this Honorable Court enter an order denying Plaintiff’s

motion for a temporary restraining order or preliminary injunction and expedited declaratory

relief.

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Respectfully submitted, DANA NESSEL Attorney General /s/Heather S. Meingast Heather S. Meingast (P55439) Erik A. Grill (P64713) Assistant Attorneys General Attorneys for Defendant

PO Box 30736 Lansing, Michigan 48909 517.335.7659 Dated: April 21, 2021

PROOF OF SERVICE Heather S. Meingast certifies that on April 21, 2021, she served a copy of the above document in this matter on all counsel of record and parties in pro per via MiFILE. /s/Heather S. Meingast Heather S. Meingast

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Exhibit 4

ED-105 04/2020

CIRCULATING AND CANVASSING

COUNTYWIDE PETITION FORMS

NOMINATING AND QUALIFYING PETITIONS

Michigan Department of State Bureau of Elections

April 2020

Michigan.gov/Elections

2

CIRCULATING AND CANVASSING COUNTYWIDE PETITION FORMS NOMINATING AND QUALIFYING PETITIONS

This publication summarizes the laws, court rulings and Attorney General Opinions governing the validity of signatures on the following types of countywide petition forms:

Nominating Petition (Countywide Partisan) Nominating Petition (Countywide Nonpartisan)

Qualifying Petition Candidate Without Party Affiliation (Countywide)

*NEW* for the 2019-2020 Election Cycle: The Bureau of Elections is pleased to announce changes to the countywide petition forms listed above, which are intended to result in fewer signature errors.

The most significant change is the elimination of the city/township checkbox from petition forms circulated on a countywide basis, where petition signers formerly were required to lTYVT\ the boxm that aligned with the type of jurisdiction. This change was recently implemented for statewide ballot proposal petitions.

Column headings have also been reordered to make the dZX_Vcnd V_ecj ^`cV Z_efZeZgV. Rather thR_ ]VRUZ_X hZeY eYV dZX_Vcnd local jurisdiction as the first data point (where some signers mistakenly wrote their county name or entered their signature), the new petition form utilizes the more familiar order begi__Z_X hZeY eYV aVcd`_nd dZX_RefcV W`]]owed by his or her printed name, street address, city or township, zip code and date of signing.

Old format, all petition forms circulated countywide: (Revision date: 2015)

INDICATE CITY OR TOWNSHIP IN WHICH

REGISTERED TO VOTE SIGNATURE PRINTED NAME

STREET ADDRESS OR RURAL ROUTE

ZIP CODE

DATE OF SIGNING

CITY OF uJEMDI>?F E< u

1. MO DAY YEAR

CITY OF uJEMDI>?F E< u

2.

Optional NEW format, all petition forms circulated countywide: (Revision date: 2019)

SIGNATURE PRINTED NAME STREET ADDRESS OR RURAL ROUTE

NAME OF CITY OR TOWNSHIP ZIP

CODE DATE OF SIGNING

1. MO DAY YEAR

2.

3

Important Note: Use of countywide forms bearing a 2019 revision date is optional for the 2019-2020 election cycle. While the Bureau of Elections encourages clerks and candidates to use the new petition forms, please note that the adoption of the new format does not require clerks or candidates to discard old forms.

Candidates may file countywide petition forms using the 2015 format, 2019 format or a combination of both.

For the 2019-2020 election cycle, candidates may, but are not required to, use the new format of the Nominating Petition (Countywide Partisan), Nominating Petition (Countywide Non-Partisan), or Qualifying Petition (Countywide) forms. If the form was prepared by an election forms print vendor or obtained from a clerkns office, a revision date will appear at or near the bottom of the petition form. Examples include but are not limited to lRev. __/15,mlRev. __/19,m and similar. Candidates may also prepare their own petition forms as long as they comply with the 2015 or 2019 format.

If a petition signer makes an error in the city/township checkbox on the 2015 version of a countywide petition, his or her signature will not be rejected for that reason. Errors that will not invalidate signatures include checking the wrong city or township box, marking both checkboxes, and leaving both checkboxes blank.

INDICATE CITY OR TOWNSHIP IN WHICH REGISTERED TO VOTE

RESULT

CITY OF uTOWNSHIP OF %

1. Garden City VALID

CITY OF %

TOWNSHIP OF u2. Redford Twp. VALID

CITY OF uTOWNSHIP OF u

3. Detroit VALID

CITY OF %

TOWNSHIP OF %4. Wayne VALID

In the examples shown above, the candidate filed a 2015 petition form and signers checked (1) the wrong box, as Garden City is not a township; (2) the wrong box, as Redford Township is not a city; (3) neither box; and (4) both boxes. Eliminating the requirement for signers to check the correct box to indicate the jurisdiction type ensures that none of the errors shown above results in an invalid signature.

As a reminder, on both 2015 and optional 2019 countywide petition forms, the signer must include either the name of the city or township in which he or she was registered to vote on the date of signing, or the postal address or unincorporated place where registered, if the post office or unincorporated place aligns with the dZX_Vcnd RUUcVdd W`c ^RZ] afca`dVd(1

1 Note: <`c WfceYVc Z_W`c^ReZ`_ cVXRcUZ_X eYV dZX_Vcnd Vntry of the name of a local post office or unincorporated place, see MCL 168.552a.

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WHICH PETITION FORM SHOULD BE USED?

There are several different types of petitions provided for candidates depending on the office sought, which are described below. Candidates must use the proper petition form; failure to do so will cVdf]e Z_ eYV TR_UZUReVnd UZdbfR]ZWZTReZ`_(

This publication describes the requirements governing countywide petition forms only. If the candidate uses a city/township petition form or a petition form designed for use when seeking village, school, or metropolitan district offices, refer to the publication, lCirculating and Canvassing City/Township Petition Forms.m

This publication explains the laws governing the circulation of countywide petitions used by candidates, including the following:

Countywide Partisan Nominating Petition: May be used by any major party candidate who seeks a partisan office, except for candidates seeking the office of County Commissioner.

Countywide Non-Partisan Nominating Petition: May be used by any candidate who seeks a nonpartisan office, except for candidates seeking the offices of school board member, intermediate school board member, community college trustee, library or district library board member.

Countywide Qualifying Petition: May be used by any candidate without political party affiliation who seeks a partisan office, except for candidates seeking the office of County Commissioner.

Other types of candidate petitions not covered by this publication include:

City/Township Partisan Nominating Petition: Must be used by a major party candidate seeking the office of County Commissioner. May be used by any major party candidate who seeks a partisan office.

City/Township Qualifying Petition: Must be used by a candidate without party affiliation seeking the office of County Commissioner. May be used by any candidate without political party affiliation who seeks a partisan office.

City/Township Non-Partisan Nominating Petition: May be used by any candidate seeking a nonpartisan office, except for candidates seeking school board, intermediate school board, or community college trustee positions.

School Nominating Petition: Use restricted to candidates seeking a school board position. Specially designed versions of the petition form are available for candidates seeking a position on an intermediate school board or a community college board of trustees.

Village Non-Partisan Nominating Petition: Use restricted to candidates seeking a village office.

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Metropolitan District Nominating Petition: Use restricted to candidates seeking a metropolitan district office.

GENERAL INFORMATION

� A petition sheet is valid if it includes the circulatocnd signature; the date on which the circulator signed eYV aVeZeZ`_5 eYV TZcTf]Re`cnd T`^a]VeV cVdZUV_TV RUUcVdd $decVVe RUUcVdd `crural route number, city or township and state); and for a circulator who is not a Michigan resident, the name of the county where the circulator is registered to vote (if applicable) and eYV TZcTf]Re`cnd ^Rc\ $Tc`dd `c TYVT\ ^Rc\% Z_ eYV _`_cVdZUV_e S`i Z_ eYV 9ertificate of Circulator.

� A petition sheet is invalid and none of the signatures affixed to the sheet will be counted as valid if the circulator is not a resident of Michigan and fails to mark the nonresident box in the Certificate of Circulator.

� A petition sheet must include the name of the county where it was circulated; each sheet must list only a single county.

� An individual signature entry is valid if it includes eYV dZX_Vcnd dZX_RefcV; the street address or rural route number; the name of the city or township where the signer is registered to vote; and the date on which the signature was affixed to the petition.

� An individual signature entry is invalid if the QVF indicates that on the date of signing, the signer was:

1. Not registered to vote in Michigan, or

2. Registered to vote in this state but not in the city or township indicated, or

3. Registered to vote in the city or township indicated but that jurisdiction is not within the county listed in the heading of the petition sheet.

� Certain variations or errors are acceptable and will not cause a signature or entire petition sheet to be rejected. For further information, dVV l7TTVaeRble Sheet VariationsmR_U l7TTVaeRS]V IZX_RefcV Variationsm SV]`h(

PETITION SHEET VALIDITY

Imperfections in the petition sheet heading, certificate of circulator, or body of the petition sheet may jeopardize the validity of signatures appearing on the sheet.

Defects in the petition heading which render an entire sheet invalid. A petition sheet is invalid if it contains one or more of the following defects in the heading:

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� The county of circulation is omitted, and it is not apparent that circulation was confined to a single county.

� Two or more counties are listed, and it is not apparent that circulation was confined to a single county.

� Required information concerning candidate or office sought omitted, including the TR_UZUReVnd name, residence address, party affiliation (if applicable), the office sought, and the district served by the office (if any).

Note: In addition, candidates seeking judicial offices must follow the instructions for completing the heading that are printed on the reverse side of the Nominating Petition (Countywide Nonpartisan) form.

Defects in the certificate of circulator which render an entire sheet invalid. A petition sheet is invalid if it contains one or more of the following defects in the circulatocnd TVceZWZTRee:

� The petition sheet is not signed by the circulator or is signed by more than one circulator.

� The circulatorns date of signing is omitted, incomplete or earlier than the date entered by every petition signer.

� The circf]Re`cnd cVdZUence address is omitted, incomplete or includes a P.O. Box in place of a street address or rural route.

Note: TYV TZcTf]Re`cnd WRZ]fcV e` Z_T]fUV eYV T`ccVTe zip code, by itself, is not a fatal defect.

� Attention nonresident petition circulators: A petition sheet is invalid if the circulator is not a Michigan resident and fails to mark the nonresident box in the certificate of circulator.

Other fatal defects that render an entire petition sheet invalid.

� Damaged, mutilated or torn petition sheets where any of the mandatory elements (heading, warning statements, circulator certificate, signer entries) are illegible or omitted.

� Sheets where any of the mandatory elements (heading, warning statements, circulator certificate, signer entries) are obscured or covered by white-out, permanent marker, stickers or other opaque material.

Acceptable sheet variations. The following variations will not cause an entire petition sheet to be rejected:

� The name of the county where the petition sheet was circulated is omitted or more than one county of circulation listed, and it is apparent from cities and townships listed by signers

7

that circulation was within a single county.

� For all offices except certain judicial offices, the fRZ]fcV e` Z_T]fUV eYV lJVc^ ;iaZcReZ`_DReVm U`Vd not render a petition sheet invalid if the filing official can ascertain which position the candidate is seeking. For example, if a candidate is seeking nomination or election to the office of County Clerk, the candiUReV Zd _è cVbfZcVU e` Z_T]fUV eYV lJVcÊxpiratio_ :ReVm SVTRfdV eYVce is only one position to be elected. If there are multiple a`dZeZ`_d RgRZ]RS]V hZeY UZWWVcV_e eVc^ V_UZ_X UReVd& eYV TR_UZUReV dY`f]U Z_T]fUV eYV lJVcÊxpiration :ReV(m

Note: Judicial candidates seeking office in a district in which a combination of full terms and partial terms will appear on the ballot must follow the instructions printed on the reverse side of thV _`^Z_ReZ_X aVeZeZ`_ hZeY cVdaVTe e` eYV lJVcÊxpiration :ReV(m

� All of the following variations are acceptable: The circulatorns signature is illegible; circulator prints his or her name in space provided for the signature and signs in the space for printed name; circulator omits his or her printed name; circulator enters his or her cursive signature in space provided for printed name.

Note: The petition sheet is invalid if the circulator merely prints his or her name and fails to sign the petition.

� The circulator omits his or her zip code or enters an incorrect zip code.

� The circulator prints the name of a village or unincorporated place instead of the township in which he or she resides, as long as the village or unincorporated place is wholly contained within a single township.

� The circulator omits the county of registration.

� The circulator is a resident of Michigan and inadvertently checks the out-of-state circulator checkbox and/or writes the name of the Michigan county where he or she is registered to vote.

VALIDITY OF INDIVIDUAL SIGNATURES

A signature entry is valid if the voter signs the petition and prints his or her street address or rural route, city or township where registered to vote, and date of signing. (The signerns omission of his or her printed name or zip code is an acceptable variation.) Filing officials use the code lRm (registered) for valid entries.

A signature is invalid if it contains one or more of the defects or omissions listed below. The codes used to mark defects and omissions on petition sheets are shown to the left of the descriptions.

8

INVALID ENTRY CODE

EXPLANATION

SIGNATURE ERRORSCO Signature was crossed out prior to filing.

DUP

Signer signed petition multiple times, or signed nominating petitions for more candidates than there are persons to be elected to the office. Note: Duplicate signatures are invalid only if both entries would have been coded R, but for the fact that the signer signed the petition multiple times or for multiple candidates seeking the same office.

NR

On the date of signing, the signer was not registered to vote anywhere in the city or township indicated or was not registered within the electoral district. Note: If a signer is registered to vote at a different address within the same city or township as is written on the petition, the signature is valid. See examples below:

Petition Address Registration Address Result 123 Main St., Mason 987 Maple St., Mason Valid entry 456 Maple St., Flint 456 Maple St., Mt. Morris Invalid entry

IN Incomplete signature, meaning the petition signature given as follows and does not match the signature on file: lCd( I^ZeY&m lMr. Jones&m l@R_V&m lJD.m

NS No signature, meaning the signature was omitted or signer printed his or her name and the signature on file is cursive.

ADDRESS AND JURISDICTION ERRORS

NA Street address or rural route is omitted or incomplete, or signer wrote a P.O. Box in place of a street address.

OC The address given is located outside of the city or township listed.

OD The address given is located within the city or township listed, but outside of the electoral district for the office sought.

NC There is no city or township by that name located within the county listed in the heading of the petition.

DUAL Dual jurisdiction entry, meaning the signer wrote the names of two or more jurisdictions in the space for the city or township where registered.

IC A village or unincorporated place was listed instead of the township where the signer is registered, but only if the village or unincorporated place lies within two or more townships.

DATE ERRORS

ED

Voterns signature is dated before the first date of the current term of the office sought. For example, a Nominating Petition (Countywide Partisan) filed by a candidate seeking the office of State Representative in 2020 may be circulated as early as January 1, 2019. Note: For qualifying petitions only, any signature that is dated more than 180 days prior to the date of filing is invalid.

ND The signature is undated, or an incomplete date is given. SDC The signature is dated after the circulator dated his or her signature.

9

MISCELLANEOUS ERRORS

CIRC

A fatal defect in the circulatorns certificate renders the entire petition sheet invalid. Examples include but are not limited to the omission of the circulatorns signature; an incorrect or incomplete address or date of -signing; an out-of-state circulatorns failure to check the box; etc.

HEAD A fatal defect in the petition heading renders the entire sheet invalid. Examples include but are not limited to omission of the TR_UZUReVnd name, residence address, party affiliation (if applicable), the office sought, etc.

DMG

A petition sheet that is damaged, mutilated or torn such that any mandatory element (heading, warning statements, circulator certificate, signer entries) is illegible or omitted; or petition sheets where any of the mandatory elements are obscured or covered by white-out, permanent marker, stickers or other opaque material.

MC Miscellaneous identification problem.

Acceptable signature variations. The following variations are acceptable and will not result in the rejection of an individual signature:

� The signature includes one or more of the signerns initials plus his or her last name. Acceptable entries include but are not limited to: J. Smith; J.B. Smith; Mrs. J. Jones; A. John Doe.

� The signature is illegible.2

� All of the following variations are acceptable: The signer prints his or her name in space provided for the signature and signs in the space for printed name; signer omits his or her printed name; signer enters his or her cursive signature in space provided for printed name.

Note: A signature is invalid if the signer merely prints his or her name in the space provided for printed name yet fails to sign the petition, and the signature on file is a cursive signature.

� The signer is unable to sign his or her name and uses a signature stamp (instead of a pen-and-ink signature).

� The signer enters ditto marks in the space(s) provided for address, city or township, zip code or date of signing.

� On the date of signing, the signer was registered to vote in the city or township indicated but at a different street address within the same city or township.

� The signer writes the community name appearing in his or her lpostal addressm3 in the

2 Note, however, that if all of the personally identifiable information in the petition entry is illegible and cannot be validated (signature, printed name, address, city or township), the signature may be coded as invalid. 3 The term la`deR] RUUcVssm refers to the name of the local post office. In some instances, the post office name will T`ccVda`_U e` eYV _R^V `W eYV aVcd`_nd TZej `c e`h_dYZp, but in other cases, the post office name differs. As a

10

space for city or township of registration.

Example 1: Individuals who are registered to vote in Genesee Township, Richfield Township and Vienna Township have a Mt. Morris postal address. When signing a countywide petition, these voters may write the name of the township where they are registered to vote or Mt. Morris in the lCity or Townshipm column of the petition sheet, and either entry is valid.

Example 2: Parts of Texas Township are served by the Kalamazoo post office (zip code 49001) while other parts of the township are served by the Mattawan post office (zip code 49071). If a Texas Township registrant writes lKalamazoom in the city or township column but his or her postal address is Mattawan, the entry is invalid.

� The signer writes the name of a village or unincorporated place in the space for city or township of registration, and the village or unincorporated place is located within a single township.

Example 1: A signature is valid if the signer provides the name of an unincorporated place in the place for city or township of registration, and the unincorporated place is located within a single township, and the signer is registered to vote in that township. Examples of unincorporated places include but are not limited to: Hemlock (Saginaw County), Kincheloe (Chippewa County), Lambertville (Monroe County), Okemos (Ingham County), Union Lake (Oakland County), and Walloon Lake (Charlevoix County).

Example 2: A signature is valid if the signer writes the name of a village, the village is wholly contained within a single township, and the signer is registered to vote in that township. A signature is invalid if the signer writes the name of a village instead of his or her township of registration and the village boundaries cross multiple townships.

� The signer omits his or her zip code or enters an incorrect zip code.

� *NEW FOR 2019-2020* With respect to signatures appearing on 2015 petition forms, any marking in the space where a signer indicates whether the place of registration is a lcitym or ltownshipm must be treated as a valid entry. In other words, a signature must not be rejected solely because the signer checked the wrong box, checked both boxes, and checked neither box. Examples of valid entries that may appear on 2015 petition forms include the following:

result, the jurisdiction written on the petition may not always correspond to the name of the city or township where the signer is registered to vote. See Usps.com for a list of local post offices by state.

11

INDICATE CITY OR TOWNSHIP IN WHICH REGISTERED TO VOTE

RESULT

CITY OF uTOWNSHIP OF %

1. Garden City VALID

CITY OF %

TOWNSHIP OF u2. Redford Twp. VALID

CITY OF uTOWNSHIP OF u

3. Detroit VALID

CITY OF %

TOWNSHIP OF %4. Wayne VALID

� *NEW FOR 2019-2020* Abbreviations for jurisdiction names are acceptable if the abbreviation reasonably corresponds to the name of the appropriate city, township, local post office, unincorporated place, or village. Examples of commonly used abbreviations include but are not limited to the following:

Abbreviation Corresponds to b County

AA, A2 Ann Arbor city, Ann Arbor Township Washtenaw

BC Battle Creek Calhoun

BH Benton Harbor Berrien

BH, Blfd Hlls Bloomfield Hills Oakland

Dnborn Dearborn Wayne

Dnborn Hts Dearborn Heights Wayne

Det Detroit Wayne

EL, E Lan East Lansing Ingham

Farm Farmington Oakland

FH, Farm Hlls Farmington Hills Oakland

Fnt Flint city, Flint Township Genesee

GR Grand Rapids Kent

GP Grosse Pointe Wayne

GPF Grosse Pointe Farms Wayne

GPP Grosse Pointe Park Wayne

GPS Grosse Pointe Shores Wayne

GPW Grosse Pointe Woods Wayne

HP Highland Park Wayne

Kal, Knzoo Kalamazoo Kalamazoo

Lan Lansing Ingham

Musk Muskegon Muskegon

Sag Saginaw city, Saginaw Township Saginaw

SSM Sault Ste. Marie Chippewa

SH Shelby Township Macomb

SH, Ster Hgts Sterling Heights Macomb

Snfld Southfield Oakland

SCS St. Clair Shores Macomb

St. Joe St. Joseph Berrien

TC Traverse City Grand Traverse

12

Abbreviation Corresponds to b County

WB West Bloomfield Oakland

Ypsi Ypsilanti Washtenaw

SIGNATURE VERIFICATION

Circulators should encourage voters to sign petitions in a way that reasonably resembles the signature given for driverns license/state ID or voter registration purposes, but it is not necessary for the voterns signature to perfectly match the signature on file. Filing officials must perform their signature verification duties with the presumption that a voterns petition signature is his or her genuine signature, as there are numerous legitimate reasons that may explain an apparent mismatch:

� Petition signatures are often written on a clipboard, which may cause the signature to appear more slanted or less precise than the signature on file, or cause breaks or pauses in a cursive signature.

� Petition signatures (or voter registration or pin-pad signatures collected during the driverns license/state ID application process) could have been written in haste.

� A medical condition or advancing age may cause the signature to be different.

� The electronic signature on file may be smaller or larger than the signature given on a petition sheet.

� The signature may have been written using a pen with a finer tip or one with fading ink as compared to the signature on file.

None of these differences will result in the invalidation of the petition signature. If there are any redeeming qualities in the petition signature as compared to the signature on file, the filing official should treat the signature as valid. Redeeming qualities may include but are not limited to similar distinctive flourishes, more matching features than nonmatching features, and Examples 1-5 below.

A voterns signature should be considered questionable only if it differs in multiple, significant and obvious respects from the signature on file; see Examples 6-7 below. Slight dissimilarities should be resolved in favor of the voter whenever possible.

# Petition Signature Verification Examples Recommended

Result

1.

4><B6GHE: 6DD:6EF 6F >; ICG:EMF =6B9 >F GE:A7@>B< CE F=6?>B<$ DCFF>7@K 9H: GC 6

health condition or advancing age:

Catherine Metzger versus

Valid signature

13

# Petition Signature Verification Examples Recommended

Result

2.

Only part of the signature matches the signature on file such as only the first letters of the first and last name match, but rest of signature does not match:

J--- D--- versus Jane Doe J. Doe versus Jane Doe

Valid signature

3.

Signature is partially printed but at the same time, partially matches the signature on file:

lice obinson versus

Valid signature

4.

4><B6GHE: >F 6 E:8C<B>L:9 9>A>BHG>I: C; G=: ICG:EMF ;H@@ @:<6@ B6A:0

Bill Smith versus William Smith Valid signature

5.

Signature style has changed slightly over time:

Lucinda Jones versus Lucinda JonesValid signature

6.

Signature is entirely printed but signature on file is entirely written in cursive:

versus James Davis Questionable signature

7.

Signature differs in multiple, significant and obvious respects:

Questionable signature

PETITION CANVASS PROCESS

Nominating and qualifying petitions must be timely filed with the filing official designated by law to accept filings for the elective office sought. Petitions are canvassed by the designated filing official or, in the case of many federal, state and judicial offices, under the authority of the Board of State Canvassers.

A sworn complaint (challenge) alleging that the nominating or qualifying petition contains an insufficient number of valid signatures or is otherwise defective may be submitted to the appropriate filing official within 7 days of the filing deadline. Challenges are resolved by the filing official or in the case of many federal, state and judicial offices, are decided by the Board of State Canvassers.

BEST PRACTICES

Train your petition circulators. Informing petition circulators of the requirements described in this publication can minimize the likelihood that whole petition sheets and individual signatures are rejected. Errors may be averted if circulators take the following actions:

14

� Write the name of the county of circulation in the heading of the petition.

� Ask potential signers whether they are registered to vote.

� Instruct signers to provide their street address or rural route where indicated; a P.O. Box is invalid.

� Remind signers to write the date of signing, not their date of birth.

� Review each signerns entry for completeness. If information is omitted, ask the signer to fill in the blank(s).

� Encourage signers to sign in a way that reasonably resembles the signature given for driverns license or voter registration purposes. It is not necessary for the signerns petition signature to be a perfect match with the signature on file. See lSignature Verificationm

above.

� Once circulation of a petition sheet is complete, ensure that the circulator signs and dates the certificate of circulator and provides the required information. If the circulator is not a Michigan resident, he or she must also check the nonresident box in the bottom left corner of the petition sheet and write the name of the county where registered to vote, if any.

Exercise care when circulating in or near cities and villages that cross county lines. Several cities and villages in Michigan overlap county boundary lines. When obtaining a signature from a voter who is registered in a city or village that crosses county boundaries, make sure the voter signs the petition sheet that aligns with the siX_Vcnd T`f_ej `W cVXZdtration.

Implement a quality control process before filing the petition. Candidates are strongly encouraged to obtain a copy of the Qualified Voter File (QVF) for pre-filing verification purposes. Any petition signatures found to be invalid during the quality control process (i.e., because the street address or date is omitted) can be crossed out prior to filing; crossed out signatures are excluded when determining the maximum number of signatures filed.

Review all petition sheets prior to filing for completeness, especially the name of the county of circulation and the certificate of circulator.

File enough signatures. Candidates are strongly encouraged to gather and file substantially more signatures than the minimum number required. The number of excess signatures needed will vary depending on the vigorousness of the candidatens quality control process. Even if the petition has been verified by a professional signature gathering firm prior to filing, note that (1) A challenge may be filed against the sufficiency of the nominating or qualifying petition, and (2) There is a likelihood that some signatures or whole petition sheets may be found to be invalid during the canvass process. However, note that there is an upper limit on the maximum

15

number of signatures that may be filed; see MCL 168.544f for further information.

IMPORTANT

The information in this brochure is offered as a summary of the provisions governing the validity of petition signatures; it is not a complete description or interpretation of all pertinent laws. Questions may be addressed to:

Michigan Department of State Bureau of Elections

P.O. Box 20126 Lansing, Michigan 48901-0726

Telephone: (517) 335-3234

Email: [email protected]: Michigan.gov/Elections

Authority granted under PA 116 of 1954 ED-105

Exhibit 5

1

March 2021

SPONSORING A STATEWIDE INITIATIVE, REFERENDUM OR CONSTITUTIONAL AMENDMENT PETITION

The Michigan Constitution provides:

“The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum.” Article 2, § 9 of the 1963 Michigan Constitution. “Amendments may be proposed to this constitution by petition of the registered electors of this state.” Article 12, § 2 of the 1963 Michigan Constitution.

These rights are invoked through the statewide ballot proposal petitioning process, which is governed by the Michigan Election Law and overseen by the Secretary of State and Board of State Canvassers. Once a petition is filed with the Secretary of State, signatures are subjected to a verification process and the Board of State Canvassers determines whether the petition contains enough valid signatures to qualify for placement on the ballot at the next even-year, general November election. This publication outlines legal requirements and provides guidance to those interested in launching a petition drive to initiate new legislation, amend or repeal existing laws, subject newly enacted laws to a referendum vote, or amend the state constitution. There are different filing deadlines in effect for the 2021-2022 election cycle. This guide also highlights best practices which, although not legally required, are offered so that sponsors may minimize the risk that an error could disqualify the petition. Legislative changes enacted in late 2018 and subsequent legal developments in 2019-2020 altered the process for preparing and circulating statewide ballot proposal petitions. Public Act 608 of 2018 included changes in the petition format, established a ceiling on the number of voters in a single Congressional district who could sign a petition, and imposed additional regulatory requirements on paid petition circulators. In 2019, the Attorney General issued Opinion No. 7310 (May 22, 2019) interpreting Public Act 608 and concluding that many of its provisions were unconstitutional. Lawsuits were subsequently filed by the League of Women Voters and Michigan Legislature challenging portions of the statute and opinion. In late 2020, the Michigan Supreme Court dismissed both cases, meaning Atty Gen Op No 7310 remains in effect. The instructions provided in this publication are consistent with the Attorney General’s Opinion and describe the requirements of Public Act 608 that the Attorney General concluded are constitutional and enforceable.

http://legislature.mi.gov/(S(yptt1f5mgm2mlktkt2r1lbwk))/mileg.aspx?page=getObject&objectName=mcl-Article-II-9

http://legislature.mi.gov/(S(yptt1f5mgm2mlktkt2r1lbwk))/mileg.aspx?page=getObject&objectName=mcl-Article-II-9

http://legislature.mi.gov/(S(yptt1f5mgm2mlktkt2r1lbwk))/mileg.aspx?page=getObject&objectName=mcl-Article-XII-2

http://legislature.mi.gov/(S(j3rcdosilcspeuya4zmkwgj4))/mileg.aspx?page=getObject&objectName=mcl-Act-116-of-1954

https://www.michigan.gov/sos/0,4670,7-127-1633---,00.html

https://www.michigan.gov/sos/0,4670,7-127-1633_41221---,00.html

https://www.legislature.mi.gov/(S(w1g3vkyxhrpod3wvk2ui0tnz))/mileg.aspx?page=getObject&objectName=2018-HB-6595

https://www.ag.state.mi.us/opinion/datafiles/2010s/op10389.htm

https://courts.michigan.gov/courts/michigansupremecourt/oral-arguments/2019-2020/pages/160907-8.aspx

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We appreciate your interest in the statewide ballot proposal petition circulation process. If you have any questions regarding this publication, contact the Michigan Department of State, Bureau of Elections, at (517)335–3234 or [email protected], and visit our website www.Michigan.gov/Elections. Correspondence may be mailed, hand delivered, or sent via overnight delivery to the Richard H. Austin Building – 1st Floor, 430 West Allegan Street, Lansing, Michigan 48933. Be sure to call ahead and schedule an appointment before visiting in-person as the office is closed temporarily due to COVID.

Statewide proposal sponsors are subject to the registration and reporting requirements of the Michigan Campaign Finance Act. For questions regarding the these obligations, please refer to the publication, Getting Started as a Ballot Question Committee or email [email protected].


http://www.michigan.gov/Elections

http://legislature.mi.gov/(S(33ymkx0ry5dxr04v4nqa30xt))/mileg.aspx?page=getObject&objectName=mcl-Act-388-of-1976

http://mertsplus.com/mertsuserguide/index.php?n=MANUALS.BQStarted


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TABLE OF CONTENTS

SECTION I: OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . pp. 4-12

Important Note A. *UPDATED* Filing Deadlines and Signature Requirements B. Consultations Regarding Technical Form Requirements C. Mandatory Pre-Circulation Petition Filing Requirement D. Optional Pre-Circulation Process for “Approval of the Content of the Petition

Summary” E. Optional Pre-Circulation “Approval as to Form” Process F. Circulation on a Countywide Form or City/Township Form G. Circulation Period H. Law Regarding Non-Resident Petition Circulators I. Invalidation of Signatures if Circulator Provides False or Fraudulent Information J. Prohibited Conduct K. Filing, Canvass and Disposition of Proposal

SECTION II: PETITION FORMAT REQUIREMENTS . . . . . . . . . . . . . . . . . . . pp. 13-21

Important Note A. Sheet Size B. Circulator Compliance Statement C. Identification of Petition Type D. Petition Summary E. Presentation of Proposal F. Identification of County or City/Township of Circulation G. Warning to Petition Signers H. Entry Spaces for Petition Signers I. Certificate of Circulator J. Warning to Circulators K. Instruction to Circulator and Space for Circulator’s Signature and Address L. Identification of Petition Sponsor M. Extension for Instructional or Promotional Language N. Clarification of Proposed Initiated Law, Referendum of Legislation or

Constitutional Amendment O. Type Size and Font

SECTION III: FILING INSTRUCTIONS AND AFFIDAVIT . . . . . . . . . . . . . . . pp. 22-23

A. Filing Location B. Printer’s Affidavit

SECTION IV: PRESCRIBED FORMAT FOR COUNTYWIDE FORMS . . . . . . pp. 24-25

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SECTION I: OVERVIEW

Important Note: Legislative changes enacted in late 2018 and subsequent legal developments altered the process for preparing and circulating statewide ballot proposal petitions. Among other changes, Public Act 608 of 2018 modified the petition format and signature gathering process; a subsequent Attorney General Opinion concluded that many of Public Act 608’s provisions were unconstitutional. Lawsuits regarding the status of 2018 PA 608 were eventually dismissed by the Michigan Supreme Court in late 2020, meaning Attorney General Opinion No. 7310 remains in effect. A summary of the legislative changes and the Attorney General’s conclusion regarding their enforceability follows:

Proposed Requirement (2018 PA 608) Attorney General

Conclusion Citation

15% cap on the number of signatures gathered in a single congressional district

Unconstitutional MCL 168.471, 168.477, and 168.482(4)

as amended by 2018 PA 608

Circulation of petition sheets on a congressional district form

Unconstitutional MCL 168.482(4) and 168.544d as amended by 2018 PA 608

Disclosure of circulator’s paid or volunteer status on petition form

Unconstitutional MCL 168.482(7) and 168.482c as amended by 2018 PA 608

Pre-circulation filing of paid circulator’s affidavit

Unconstitutional MCL 168.482a(1) and (2)


Invalidation of petition signatures if circulator provides false or fraudulent information

Constitutional MCL 168.482a(3)


Invalidation of petition signatures if petition form does not comply with legal requirements



Invalidation of petition signatures that are not signed in the circulator’s presence



Optional approval of the content of the petition summary by the Board of State Canvassers

Constitutional MCL 168.482b(1)


Filing of lawsuit in the Supreme Court to challenge a determination regarding the sufficiency or insufficiency of a petition

Constitutional MCL 168.479(2)


Mandate to prioritize such lawsuits on the Supreme Court’s docket

Unconstitutional MCL 168.479(2)


The instructions provided in this publication are consistent with the Attorney General’s Opinion and describe the requirements of Public Act 608 that the Attorney General concluded are constitutional and enforceable. While an Attorney General Opinion is binding on state agencies, please note that a court could reach a different conclusion regarding the enforceability of any provision of Public Act 608.



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It is the intention of the Board of State Canvassers to accept petition signatures for canvassing if the petition sheets comply with the instructions that were in effect at the time of circulation, unless otherwise ordered by a court to reject such signatures. However, due to the potential for additional litigation and uncertainty that persists regarding the enforceability of Public Act 608, petition sponsors are strongly encouraged to confer with their own legal counsel regarding compliance with all applicable legal requirements. Petition sponsors must exercise extreme caution to ensure that all legal requirements are met. Refer to this link often; any updates to this publication necessitated by pending litigation will include the date on which the revised instructions became effective.

A. *UPDATED* Filing Deadlines and Signature Requirements Upcoming deadlines for filing an initiative, referendum, or constitutional amendment petition are listed below, along with the minimum number of valid signatures required for each type of petition. See MCL 168.471; 1963 Constitution Article 2, § 9; 1963 Constitution Art. 12, § 2.

TYPE OF PETITION FILING DEADLINE SIGNATURE

REQUIREMENT1

Initiative to create new or amend existing legislation

June 1, 2022 at 5:00 pm 340,047

Initiative to amend the State Constitution

July 11, 2022 at 5:00 pm 425,059

Referendum on legislation

90th day following the final adjournment of the legislative session at which the law was

enacted,2 at 5:00 pm

212,530

Best Practice: Petition sponsors are strongly encouraged to gather and submit a significant number of signatures in excess of the minimum number required, due to the likelihood that some petition signer entries or whole petition sheets may be found invalid during the verification process.

1 The minimum number of valid signatures required for each petition type is based on the total number of votes cast for all candidates for Governor at the most recent gubernatorial election. 2 For legislation enacted in 2020, the filing deadline will elapse on March 23, 2021, the 90th day following the final adjournment of the legislature, which occurred on December 23, 2020. See SCR No. 38 (2020).


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Please note, petition sponsors are authorized to make only a single submission of all the signatures intended to be considered for verification purposes; supplemental signatures are not permitted to be filed after the initial submission. MCL 168.475(2). B. Consultations Regarding Technical Form Requirements As a service to those interested in launching an initiative, referendum or constitutional amendment petition drive, the Michigan Department of State’s Bureau of Elections offers its staff for consultations on the various petition formatting requirements, provided that the petition sponsor intends to submit the petition to the Board of State Canvassers for approval as to form. Please note that while staff consultations include a thorough review of whether the petition complies with the technical formatting requirements described below, the following features are not subject to staff review and are solely the responsibility of the petition sponsor: type size, the substance of the proposal which appears on the petition, the substance of the summary of the proposal which appears on the signature side of the petition (except as noted below), whether the petition properly identifies provisions of the existing Constitution which may be altered or abrogated by a proposed constitutional amendment, and the manner in which the proposal language is affixed to the petition.

Best Practice: Petition sponsors are urged to confer with their own legal counsel for advice regarding these aspects of their proposal prior to engaging in the consultation process.

Note that under Michigan election law, if a statewide proposal petition does not comply with all the requirements of the Michigan Election Law, signatures submitted on the petition will be considered invalid and not counted. MCL 168.482a(4). C. Mandatory Pre-Circulation Petition Filing Requirement Proponents of initiative and constitutional amendment petitions are required to submit a copy of their petition (or amended petition) to the Secretary of State prior to circulating the petition. MCL 168.483a. This requirement applies to every petition to initiate legislation or amend the constitution, even if the sponsor does not intend to submit the petition to the Board of State Canvassers as part of the optional “approval as to form” process (described below). Please note, any changes made to the petition after the initial submission to the Secretary of State must be submitted as an amended petition. Copies of each initiative, referendum and constitutional amendment petition submitted in accordance with MCL 168.483a will be posted on the Secretary of State’s website, www.Michigan.gov/Elections.


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FILING INSTRUCTIONS:

1. Submit 15 printer’s proof copies of the petition. Materials must be sent to the Secretary of State in care of the Bureau of Elections, Richard H. Austin Building, 430 West Allegan Street, 1st Floor, Lansing, Michigan 48918. This address may be used for hand delivery, overnight delivery, or U.S. Mail.

2. Email an electronically generated pdf of the petition to [email protected]. In the subject line of the email message, please indicate, “483a – Petition Attached.”

Best Practice: Petition sponsors should ask the printer of the petition to sign the attached Printer’s Affidavit in the presence of a notary public and retain a copy as evidence of compliance with the type size and text requirements of the Michigan Election Law.

D. Optional Pre-Circulation Process for “Approval of the Content of the Petition Summary” The sponsor may submit the summary of the purpose of the petition to the Board of State Canvassers for approval of the content of the summary, using the procedure described in this section. MCL 168.482b. If the sponsor avails itself of this optional process, a summary of the proposal’s purpose stated in not more than 100 words must be prepared by the Director of Elections; the summary will consist of a true and impartial statement in language that does not create prejudice for or against the proposal. MCL 168.482b(2). The summary must also inform signers of the subject matter of the petition but need not be legally precise, and must use words having a common, everyday meaning to the general public. Id. The summary prepared by the Director of Elections will be presented to the Board of State Canvassers at an open meeting; the Board must approve or reject the content of the summary within 30 days of its submission by the petition sponsor. MCL 168.482b(1). If the Board of State Canvassers approves the summary as prepared by the Director of Elections, the sponsor must print the full text of the approved summary in the heading of the petition and the Board will be barred from considering a subsequent challenge alleging that the summary is misleading or deceptive. Id. Additionally, note that the Director of Elections and Board of State Canvassers are authorized to draft and approve ballot language that differs from the petition summary adopted under this procedure. Op Atty Gen No 7310 (May 22, 2019).

Best Practice: Note that due to the legal requirement that the petition sponsor must print the approved petition summary in the heading of the petition and the possibility that the Director of Elections’ proposed summary may be modified during the Board meeting, it may not be possible for the petition sponsor to simultaneously obtain “approval of the content of the petition summary” and “approval as to form” at the same Board meeting. Sponsors must plan accordingly.


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1. Submit the full text of the statewide proposal with a cover letter clearly stating that the petition sponsor is seeking the approval of the content of the petition summary. If the proposal will be presented as a constitutional amendment, the submission must include sections of the existing constitution which would be altered or abrogated by the proposal if adopted. Note that the request for approval of the content of the summary must be made before the petition is printed for circulation. Materials must be mailed, hand delivered, or sent via overnight delivery to the Secretary of State in care of the Bureau of Elections, Richard H. Austin Building, 430 West Allegan Street, 1st Floor, Lansing, Michigan 48918.

2. The sponsor may provide with its submission its own preferred language for the summary of the petition, but the Director of Elections and Board of State Canvassers are not obligated to approve the sponsor’s summary.

E. Optional Pre-Circulation “Approval as To Form” Process Sponsors of petitions to initiate legislation, amend the constitution, or invoke the right of referendum are urged to submit a proof copy of the petition to the Board of State Canvassers for approval as to form prior to the circulation of the petition.

Best Practice: Although Michigan election law does not require the sponsor of a statewide proposal petition to seek pre-approval of the petition form, such approval greatly reduces the risk that signatures collected on the form will be ruled invalid due to formatting defects.

Upon determining through the staff consultation process that an initiative or referendum petition is properly formatted, it is submitted to the Board of State Canvassers for approval as to form. The Board’s approval process does not include a review of the language of the proposed initiated law, constitutional amendment or referendum, the manner in which the proposal language is affixed to the petition, or consideration of whether the petition properly identifies provisions of the existing Constitution which may be altered or abrogated by a proposed constitutional amendment. Furthermore, the Board’s approval as to form does not include a review of the substance of the summary of the proposal, unless the sponsor avails itself of the optional process for approving the content of the petition summary (described above). Please note, staff consultations regarding compliance with the technical formatting requirements are only available to petition sponsors who intend to participate in this optional approval as to form process. The time it takes to complete the consultation process will vary depending on the type of petition and complexity of the proposal; sponsors should plan accordingly. Further, any changes made to the petition after it has been approved as to form by the Board of State Canvassers must be submitted as an amended petition with a newly executed Printer’s Affidavit.

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1. Complete and sign the attached PRINTER’S AFFIDAVIT in the presence of a notary public and attach 15 proof copies of the petition. Materials must be sent to the Board of State Canvassers in care of the Bureau of Elections, Richard H. Austin Building, 430 West Allegan Street, 1st Floor, Lansing, Michigan 48918. This address may be used for hand delivery, overnight delivery, or U.S. Mail.

2. Email a pdf of the petition to [email protected]. In the subject line of the email message, please indicate, “BSC – Petition Attached.”

3. File final proof copies of petition sheets to be circulated, reflecting all necessary changes identified through the staff consultation process, at least 48 hours prior to the Board of State Canvassers meeting at which the petition is scheduled to be considered. If the petition sponsor fails to timely file all the required materials, the petition will not be placed on the meeting agenda.

F. Circulation on a Countywide Form or City/Township Form Petitions proposing an initiated law, constitutional amendment or referendum of legislation may be circulated on a countywide or city/township form. Op Atty Gen No 7310 (May 22, 2019). (Note, Public Act 608’s requirement that statewide proposal petitions be circulated on a congressional district form was found by the Attorney General to be unconstitutional. Id.)

Best Practice: Petition sponsors are strongly encouraged to check the registration status, address, and city or township of registration of petition signers against the Qualified Voter File (QVF) prior to filing. Any petition signer entries found by the sponsor to be invalid may be crossed out with a line prior to filing. To obtain a copy of the QVF, follow the instructions on the Qualified Voter File Data Request Form.

G. Circulation Period Michigan election law states, “The signature on a petition that proposes an amendment to the constitution or to initiate legislation shall not be counted if the signature was made more than 180 days before the petition is filed with the office of the secretary of state.” MCL 168.472a. A referendum petition is not subject to the 180-day limitation of MCL 168.472a and can be circulated from the date the legislation is enacted into law until the filing deadline imposed under 1963 Constitution, art. 2, § 9 (90 days following the final adjournment of the legislative session at which the law was enacted). H. Law Regarding Non-Resident Petition Circulators Michigan election law authorizes the sponsors of statewide ballot proposals to utilize petition circulators who are not Michigan residents, provided that the nonresident circulators agree to accept the jurisdiction of the State of Michigan and service of


https://www.michigan.gov/documents/FOIA_FORM_120378_7.pdf

https://www.michigan.gov/documents/FOIA_FORM_120378_7.pdf

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process upon the Secretary of State or her designated agent. A nonresident circulator must make a cross or check mark in the box provided on the petition sheet agreeing to these terms, “otherwise each signature on this petition sheet is invalid and the signatures will not be counted by a filing official.” MCL 168.544c(1). The format of the circulator’s certificate is described in Section II below. I. Invalidation of Signatures if Circulator Provides False or Fraudulent Information Under MCL 168.482a(3), (5):

If the circulator of a petition under section 482 provides or uses a false address or provides any fraudulent information on the certificate of circulator, any signature obtained by that circulator on that petition is invalid and must not be counted.

* * *

Any signature obtained on a petition under section 482 that was not signed in the circulator’s presence is invalid and must not be counted.

J. Prohibited Conduct Under MCL 168.482e(1)-(2), it is a misdemeanor for an individual to sign a petition with a name other than his or her own; make a false statement in a certificate on a petition; sign a petition as a circulator if the individual did not circulate the petition; or sign a name as circulator with a name other than his or her own. Additionally, individuals are prohibited from signing a petition with multiple names. MCL 168.482e(3). In addition, if an individual signs a petition in violation of the above, any signature by that individual on the petition is invalid and will not be counted. MCL 168.482e(4). K. Filing, Canvass and Disposition of Proposal FILING OF PETITION: Initiative, referendum and constitutional amendment petitions must be filed with the Secretary of State. MCL 168.471. Upon receipt of the filing, the Secretary of State must provide notice to the Board of State Canvassers immediately. MCL 168.475(1). CANVASS OF PETITION: “Upon receiving notification of the filing of the petitions, the Board of State Canvassers shall canvass the petitions to ascertain if the petitions have been signed by the requisite number of qualified and registered electors.” MCL 168.476(1). VALIDATION OF SIGNATURES BY RANDOM SAMPLING, CHALLENGE PROCEDURE: The Board of State Canvassers uses a random sampling process to determine whether initiative, referendum, and constitutional amendment petitions contain enough valid signatures to warrant certification. The random sampling process yields two important results: A projection of the number of valid signatures in the entire filing, and the probability that the sample result accurately determined whether the petition contains a sufficient number of valid signatures (known as the confidence level).

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There are two different random sampling options: (1) A single-stage process whereby a relatively large sample is taken (usually 3,000 to 4,000 signatures depending on the percentage of signatures which must be valid in order for the petition to qualify); or (2) A two-stage process where a much smaller sample is drawn (approximately 500 signatures), and the result determines (a) whether there is a sufficient level of confidence to immediately recommend certification or the denial of certification, or (b) if the result indicates a “close call,” a second random sample must be taken (usually 3,000 to 4,000 signatures) to provide a definitive result with the maximum confidence level that can be obtained. Under the Board’s established procedures, staff reviews the entire petition filing sheet-by-sheet so that wholly invalid petition sheets can be identified, culled, and excluded from the “universe” of potentially valid signatures from which the random sample is drawn. The total number of potentially valid signatures from the universe is entered into a computer program along with the minimum number of signatures required, the total number of petition sheets in the universe, and the number of signature lines per sheet. The program generates a list of signatures (identified by page and line number) that comprise the random sample. Copies of signatures selected for the random sample are made available for purchase to petition sponsors, challengers, and the general public. The deadline for challenging signatures sampled from an initiative, constitutional amendment, or referendum petition elapses at 5:00 p.m. on the 10th business day after copies of the sampled signatures are made available to the public. Challenges must identify the page and line number of each challenged signature and describe the basis for the challenge (i.e., signer not registered to vote; signer omitted signature, address, or date of signing; circulator omitted signature, address, or date of signing; etc.). A challenge alleging that the form of the petition does not comply with all legal requirements must describe the alleged defect. After the random sample is canvassed and any challenges are addressed, a staff report is prepared and released to the public at least two business days before the Board of State Canvassers meets to make a final determination regarding the sufficiency of a petition. The staff report includes an assessment of any challenges and estimate of the total number of valid signatures contained in the filing based on the validity rate. INITIATIVE TO CREATE NEW OR AMEND EXISTING LEGISLATION: The Board of State Canvassers is required to “make an official declaration of the sufficiency or insufficiency of an initiative petition no later than 100 days[3] before the election at which the proposal is to be submitted.” MCL 168.477(1). If the Board of State Canvassers determines that the petition contains enough valid signatures, the state legislature has 40 session days to adopt or reject the proposal; the legislature’s failure to enact the proposed initiated law results in the proposal’s placement on the ballot at the next statewide general election. Article 2, § 9 further provides: “The legislature may reject any measure so proposed by initiative petition and propose a different measure upon the same subject … and in such event both measures shall be submitted … to the electors for approval or rejection at the next general election.”

3 In 2022, this deadline elapses on Sunday, July 31, 2022.

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If a majority of the votes cast are in favor of the proposed initiated law and/or any alternative proposal placed on the ballot by the legislature, the measure goes into effect. The Michigan Constitution states: “If two or more measures approved by the electors at the same election conflict, that receiving the highest affirmative vote shall prevail.” 1963 Const, art 2, § 9. Initiated laws become effective ten days after the date the Board of State Canvassers certifies the official election results. Id. INITIATIVE TO AMEND THE STATE CONSTITUTION: The Board of State Canvassers must make an official determination regarding the sufficiency or insufficiency of a petition to amend the Michigan Constitution “at least 2 months[4] before the election at which the proposal is to be submitted.” MCL 168.477. If the petition is determined by the Board of State Canvassers to contain enough valid signatures, the proposed amendment is placed on ballot at the next statewide general election. 1963 Const art 12, § 2. If approved by a majority of voters voting on the question, the proposed constitutional amendment goes into effect 45 days following the date of the election at which it was approved. Id. REFERENDUM ON LEGISLATION: The Board of State Canvassers is required to “complete the canvass of a referendum petition within 60 days after the petition is filed with the Secretary of State, except that 1 15-day extension may be granted by the Secretary of State if necessary to complete the canvass.” MCL 168.477(2). If the petition contains enough valid signatures as determined by the Board of State Canvassers, the implementation of the law involved is suspended pending the placement of the law on the ballot at the next statewide general election; a majority vote determines whether the law goes into effect. 1963 Const art 2, § 9, MCL 168.477(2).

4 In 2022, this deadline elapses on Friday, September 9, 2022.

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SECTION II: PETITION FORMAT REQUIREMENTS

Important Note: Legislative changes enacted in late 2018 and subsequent legal developments altered the process for preparing and circulating statewide ballot proposal petitions. Among other changes, Public Act 608 of 2018 modified the petition format and signature gathering process; a subsequent Attorney General Opinion concluded that many of Public Act 608’s provisions were unconstitutional. Lawsuits regarding the status of 2018 PA 608 were eventually dismissed by the Michigan Supreme Court in late 2020, meaning Attorney General Opinion No. 7310 remains in effect. A summary of the legislative changes and the Attorney General’s conclusion regarding their enforceability follows:

Proposed Requirement Attorney General

Conclusion Citation

15% cap on the number of signatures gathered in a single congressional district

Unconstitutional MCL 168.471, 168.477, and 168.482(4)


Circulation of petition sheets on a congressional district form

Unconstitutional MCL 168.482(4) and 168.544d as amended by 2018 PA 608

Disclosure of circulator’s paid or volunteer status on petition form

Unconstitutional MCL 168.482(7) and 168.482c as amended by 2018 PA 608

Pre-circulation filing of paid circulator’s affidavit

Unconstitutional MCL 168.482a(1) and (2)


Invalidation of petition signatures if circulator provides false or fraudulent information



Invalidation of petition signatures if petition form does not comply with legal requirements



Invalidation of petition signatures that are not signed in the circulator’s presence



Optional approval of the content of the petition summary by the Board of State Canvassers

Constitutional MCL 168.482b(1)


Filing of lawsuit in the Supreme Court to challenge a determination regarding the sufficiency or insufficiency of a petition

Constitutional MCL 168.479(2)


Mandate to prioritize such lawsuits on the Supreme Court’s docket

Unconstitutional MCL 168.479(2)


The instructions provided in this publication are consistent with the Attorney General’s Opinion and describe the requirements of Public Act 608 that the Attorney General concluded are constitutional and enforceable. While an Attorney General Opinion is binding on state agencies, please note that a court could reach a different conclusion regarding the enforceability of any provision of Public Act 608.



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It is the intention of the Board of State Canvassers to accept petition signatures for canvassing if the petition sheets comply with the instructions that were in effect at the time of circulation, unless otherwise ordered by a court to reject such signatures. However, due to the potential for additional litigation and uncertainty that persists regarding the enforceability of Public Act 608, petition sponsors are strongly encouraged to confer with their own legal counsel regarding compliance with all applicable legal requirements. Petition sponsors must exercise extreme caution to ensure that all legal requirements are met. Refer to this link often; any updates to this publication necessitated by pending litigation will include the date on which the revised instructions became effective.

A. Sheet Size The size of the petition sheet must be 8½ by 14 inches. MCL 168.482(1). The petition format must be arranged horizontally (i.e., in landscape layout) on the sheet. If the full text of the constitutional amendment, legislative proposal or legislation being subjected to a referendum is too lengthy to be printed on the reverse side of the petition sheet, the language of the petition must be continued on a fold over extension on the same sheet of paper, like a map. This is frequently referred to as a “bedsheet petition.” The fold over extension must be attached to the sheet at all times from the time the petition is placed into circulation through the time of filing. With the extension folded down and the signature side facing up, the petition must measure 8 ½ inches by 14 inches in size. The following examples depict methods for folding maps and can be used as a guide for folding “bedsheet petitions” to comply with the legal-size paper requirement. The blank part of the map represents the signature side of the petition that will lie face-up after folding.

Bi-fold (17 x 14 sheet) Tri-fold or Z-fold (25.5 x 14 sheet)

Multi-fold or Accordion-fold (34 x 14 sheet)


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B. Circulator Compliance Statement A new circulator compliance statement must appear at the top of the petition sheet. The statement must be printed in 12-point type on the signature side of the petition sheet:

If the petition circulator does not comply with all of the requirements of the Michigan election law for petition circulators, any signature obtained by that petition circulator on that petition is invalid and will not be counted.

MCL 168.482(8). C. Identification of Petition Type One of the following phrases must be printed in capital letters in 14-point boldface type in the heading of each part of the petition (which includes the signature side of the sheet and if applicable, the reverse side):

INITIATIVE PETITION AMENDMENT TO THE CONSTITUTION

or

INITIATION OF LEGISLATION

or

REFERENDUM OF LEGISLATION PROPOSED BY INITIATIVE PETITION

MCL 168.482(2). D. Petition Summary A summary of the purpose of the proposal must be printed in 12-point type following the identification of the petition type. MCL 168.482(3). This summary must describe the proposal’s purpose and cannot exceed 100 words in length. Id. If preparing a multi-page petition, reprint the summary of the proposal’s purpose in 12-point type on the reverse side of the petition sheet, below the identification of petition type. E. Presentation of Proposal The full text of the proposal must be presented in 8-point type as described below. MCL 168.482(3). 1. For a petition that fits on a single-sided 8½ by 14-inch page, print the full text

of the proposal following the summary: The full text of the proposed initiated law,

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constitutional amendment, or legislation to be referred must follow the summary and be printed in 8-point type. MCL 168.482(3). For multi-page petitions, see below.

2. For a multi-page petition, add an instruction for signers to refer to reverse

side: For petitions that require two or more pages, signers must be instructed to refer to the reverse side for the full text of the proposal; this instruction is provided following the summary. The full text of the proposal may be presented in single or dual column format only. Examples include but are not limited to those shown below:

INITIATIVE PETITION EXAMPLES

For the full text of [the law to be amended], see the reverse side of this petition.

[Include the Public Act number, Michigan Compiled Laws citation and title of the law to be amended.]

For the full text of [the new act], see the reverse side of this petition.

[Include the title of the law to be enacted.]

CONSTITUTIONAL AMENDMENT PETITION EXAMPLES

For the full text of proposed [the constitutional provision to be created], see the reverse side of this petition.

[Include the new article and section number for the section to be created.]

For the full text of proposed [the constitutional provision to be amended], see the reverse side of this petition.

[Include the article and section numbers of the provision to be amended.]

The full text of the proposal appears on the reverse side of this petition, along with provisions of the existing constitution which would be altered or abrogated if the proposal is adopted.

REFERENDUM PETITION EXAMPLES

For the full text of [the law to be referred], see the reverse side of this petition.

[Include the Public Act number and Michigan Compiled Laws citation of the law to be referred.]

The full text of the legislation to be referred appears on the reverse side of this petition.

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3. Instructions applicable to initiative petitions only: Include the title of the law to be amended, its Public Act number, and the Michigan Compiled Laws citation(s) for the statute(s) to be amended. This information must be printed in 8-point type on the signature side of the petition sheet and on the reverse side (if applicable), after the summary. 1963 Const art 4, § 24. In addition, the preface of the full text of the proposal must include the phrase, “The People of the State of Michigan enact:”. 1963 Const art 4, § 23.

4. Instructions applicable to constitutional amendment petitions only: Identify

and republish the provision(s) of the Michigan Constitution that would be altered or abrogated by the proposal if adopted. A petition proposing a constitutional amendment is required to include additional language if it “alters” or “abrogates” an existing provision of the constitution. MCL 168.482(3). The words, “Provisions of existing constitution altered or abrogated by the proposal if adopted” must be printed in 8-point type preceding the identification/citation of the provision(s) that would be so affected if the proposal is adopted. Id. Additionally, the full text of the provision(s) which would be altered or abrogated must be republished at length. Art. XII, Sec. 2, MCL 168.482(3).

A proposal is said to “alter” an existing provision only when the amendment would add to, delete from, or change the existing wording of a provision of the Michigan Constitution. A proposed amendment would “abrogate” (eliminate) an existing provision if it would: first, render that provision or some discrete component of it wholly inoperative, a nullity; or second, become impossible for the proposed amendment to be harmonized with an existing provision of the Michigan Constitution when the proposed amendment and existing provision are read together.

Best Practice: Sponsors of petitions to amend the Michigan Constitution are strongly encouraged to seek legal advice for assistance in determining whether the identification and republication requirement applies to their proposals.

A. For a constitutional amendment petition that fits on a single-sided 8½ by

14-inch page, print the following in 8-point type after the summary: the full text of the proposed amendment, and if applicable, the “Provisions of existing constitution …” clause with the full text of the provision(s) to be altered or abrogated by the proposal if adopted.

B. For a multi-page constitutional amendment petition, do all the following:

1. On the signature side of the sheet, beneath the summary, print in 8-

point type the “Provisions of existing constitution …” clause, and a statement instructing the signer to refer to the reverse side of the petition for the full text of the proposal and provisions of the existing constitution which would be altered or abrogated if it is adopted; and

2. On the reverse side of the sheet, beneath the identification of petition type, print the summary in 12-point type, the full text of the proposed constitutional amendment in 8-point type, the “Provisions of existing constitution …” clause in 8-point type, and republish the full text of

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the provisions that would be altered or abrogated by the proposal if adopted in 8-point type.

5. Instructions applicable to referendum petitions only: The petition must include

the Public Act number and full text of the law to be referred. A petition to invoke the right of referendum must identify the legislation that is the subject of the referendum vote by its Public Act number. In addition, the full text of the law that is the subject of the petition must be printed in 8-point type.

F. Identification of County or City/Township of Circulation A petition to initiate legislation, refer legislation, or amend the Michigan Constitution may be circulated on a countywide or city/township form. Op Atty Gen No. 7310 (May 22, 2019). The following statement is printed immediately above the warning to petition signers (see below). If circulating on a countywide form, the signature side of the petition must include the following statement in 8-point type:

We, the undersigned qualified and registered electors, residents in the county of ______________________, state of Michigan, respectively petition for (amendment to constitution) (initiation of legislation) (referendum of legislation).

If circulating on a city/township form, the signature side of the petition must include the following statement in 8-point type:

We, the undersigned qualified and registered electors, residents in the city

(Strike one) township

of _________________, state of Michigan, respectively petition for (amendment to constitution) (initiation of legislation) (referendum of legislation).

Op Atty Gen No 7310 (May 22, 2019). Also note that under MCL 168.552a(1), “[n]otwithstanding any other provision of this act to the contrary, a petition or a signature is not invalid solely because the designation of city or township has not been made on the petition form if a city and an adjoining township have the same name.” G. Warning to Petition Signers

A warning to the signers of the petition must be printed in 12-point boldface type, immediately above the signature lines. MCL 168.482(5).

WARNING – A person who knowingly signs this petition more than once, signs a name other than his or her own, signs when not a qualified and registered elector, or sets opposite his or her signature on a petition, a date other than the actual date the signature was affixed, is violating the provisions of the Michigan election law.

19

H. Entry Spaces for Petition Signers On countywide petition forms, the entry spaces for signers must be presented in 8-point type as shown below:

SIGNATURE PRINTED

NAME STREET ADDRESS OR RURAL ROUTE

CITY OR TOWNSHIP

ZIP CODE DATE OF SIGNING

MO DAY YEAR

1.

2.

MCL 168.482(6); MCL 168.544c(1)-(2). Also note that under MCL 168.552a(2), “Notwithstanding any other provision of this act to the contrary, if a person who signs a petition uses his or her mailing address on the petition and that mailing address incorporates the political jurisdiction in which the person is registered to vote, that signature shall be counted if the signature is otherwise determined to be genuine and valid under this act.” On city/township petition forms, the entry spaces for signers must be presented in 8-point type as shown below:

SIGNATURE PRINTED



MO DAY YEAR

1.

2.

The minimum number of signature lines is five (5) and the maximum number is fifteen (15). As any reduction in the number of lines provided for signers increases the number of petition sheets needed to satisfy the signature requirement, a minimum of five (5) lines is necessary to assure that the increased volume of petition sheets is not so great as to impede or delay the processing procedure. I. Certificate of Circulator The following statement shall be printed in 8-point type in the lower left-hand corner of the petition sheet. MCL 168.482(6); MCL 168.544c(1).

CERTIFICATE OF CIRCULATOR

The undersigned circulator of the above petition asserts that he or she is 18 years of age or older and a United States citizen; that each signature on the petition was signed in his or her presence; that he or she has neither caused nor permitted a person to sign the petition more than once and has no knowledge of a person signing the petition more than once; and that, to his or her best knowledge and belief, each signature is the genuine signature of the person purporting to sign the petition, the person signing the petition was at the time of signing a registered elector of the city or township indicated preceding the signature, and the elector was qualified to sign the petition.

20

If the circulator is not a resident of Michigan, the circulator shall make a cross or check mark in the box provided, otherwise each signature on this petition sheet is invalid and the signatures will not be counted by a filing official. By making a cross or check mark in the box provided, the undersigned circulator asserts that he or she is not a resident of Michigan and agrees to accept the jurisdiction of this state for the purpose of any legal proceeding or hearing that concerns a petition sheet executed by the circulator and agrees that legal process served on the Secretary of State or a designated agent of the Secretary of State has the same effect as if personally served on the circulator.

Best Practice: It is recommended that the check box be printed in boldface type to minimize the likelihood that an out-of-state circulator may inadvertently fail to make the selection.

J. Warning to Circulator A warning to the circulators of the petition must be printed in 12-point boldface type as specified below. MCL 168.482(6); MCL 168.544c(1). The warning must be placed in the lower left-hand corner of the sheet immediately beneath the circulator’s statement.

WARNING - A circulator knowingly making a false statement in the above certificate, a person not a circulator who signs as a circulator, or a person who signs a name other than his or her own as circulator is guilty of a misdemeanor.

K. Instruction to Circulator and Space for Circulator’s Signature and Residence Address In the lower right-hand corner of the petition sheet, the following circulator instruction must be printed in 12-point boldface type:

CIRCULATOR - Do not sign or date certificate until after circulating petition.

MCL 168.482(6); MCL 168.544c(1)-(2). Immediately beneath this instruction, the entry space for the petition circulator must be presented in 8-point type as shown below:

/ /

(Signature of Circulator) (Date)

(Printed Name of Circulator)

Complete Residence Address (Street and Number or Rural Route) [Do Not Enter a Post Office Box]

(City or Township, State, Zip Code)

(County of Registration, If Registered to Vote, of a Circulator who is not a Resident of Michigan)

21

L. Identification of Petition Sponsor The petition sheet must include, in 8-point type, the name and address of the person, group or organization paying for the printing of the petition form, preceded by the words: “Paid for with regulated funds by _____.” MCL 169.247. M. Extension for Instructional or Promotional Language During the circulation period, the petition may contain a detachable extension for optional instructional or promotional language. The extended portion of the sheet must be detached or otherwise removed prior to the filing of the petition. If a detachable stub or other type of petition sheet extension is used, the sponsor of the petition is solely responsible for the accuracy of the instructional and/or promotional language placed on the extension. N. Clarification of Constitutional Amendment, Initiated Legislation or Referendum of Legislation

Best Practice: For ease of readability, sponsors are encouraged to follow the strike/CAPS format for presenting amendatory language. For example, if the petition offers a constitutional amendment which involves alterations to existing provisions of the State Constitution, the alterations may be presented by showing any language that would be added to the provision or provisions in capital letters and any language that would be deleted from the provision or provisions struck out with a line. If the petition offers a legislative proposal or a referendum of legislation which involves alterations to existing provisions of Michigan law, the alterations may be presented by showing any language that would be added to the provision or provisions in capital letters and any language that would be deleted from the provision or provisions struck out with a line.

O. Type Size and Font The statutes that govern the form of the petition mandate the use of specific type sizes. The font size indicated in some software programs does not always measure the same type size. Petition sponsors and printers must exercise caution to ensure that the printed type measures the type size required by law.

Best Practice: Petition sponsors are strongly encouraged to utilize a sans serif font for readability purposes. Examples of such fonts are provided below.

Arial (14-point type) Microsoft Sans Serif (14-point type)

Tahoma (14-point type) Verdana (14-point type)

22

SECTION III. FILING INSTRUCTIONS FOR INITIATIVE, CONSTITUTIONAL AMENDMENT AND REFERENDUM PETITIONS

Filing Location Statewide initiative, constitutional amendment and referendum petitions are filed with the Michigan Department of State’s Bureau of Elections, Richard H. Austin Building, 1st Floor, 430 West Allegan Street, Lansing, Michigan 48918. Sponsors must contact the Bureau of Elections at 517-335-3234 to plan for the submission of the petition well in advance of the applicable filing deadline. At the time of filing, sponsors will be asked to provide the estimated number of petition sheets and signatures submitted. Please refer to the Petition Signature Guidance publication for additional information. Questions? If you have any questions, please contact the Michigan Department of State, Bureau of Elections at:

Mailing Address: P.O. Box 20126, Lansing, MI 48901-0726 Address for Overnight or Hand Delivery: Richard H. Austin Bldg., 430 W. Allegan, 1st Floor, Lansing, MI 48933

Phone: (517) 335-3234

Web: www.Michigan.gov/Elections

Email: [email protected]

https://www.michigan.gov/documents/sos/Submitting_Petition_Signatures_Guidance_703168_7.pdf



23

INSTRUCTIONS: Use this form for the initial filing of a petition with the Board of State Canvassers or when filing an amended petition with the Board of State Canvassers for approval as to form.

PRINTER’S AFFIDAVIT (2021-2022) I, , being duly sworn, depose and say: 1. That I prepared the attached petition proof. 2. That the size of the petition is 8.5 inches by 14 inches.

3. That the circulator compliance statement (“If the circulator of this petition does not comply . . .”) is

printed in 12-point type.

4. That the heading of the petition is presented in the following form and printed in capital letters in 14-point boldface type:

INITIATIVE PETITION

AMENDMENT TO THE CONSTITUTION or

INITIATION OF LEGISLATION or

REFERENDUM OF LEGISLATION PROPOSED BY INITIATIVE PETITION

5. That the summary of the purpose of the proposal is printed in 12-point type and does not exceed 100

words in length.

6. That the words, “We, the undersigned qualified and registered electors . . .” are printed in 8-point type.

7. That the two warning statements and language contained therein are printed in 12-point boldface

type. 8. That the words, “CIRCULATOR – Do not sign or date . . .” are printed in 12-point boldface type. 9. That the balance of the petition is printed in 8-point type. 10. That the font used on the petition is _______ . 11. That to the best of my knowledge and belief, the petition conforms to the petition form standards

prescribed by Michigan Election Law.

________________________________________________ Printer’s Signature ________________________________________________ Name of Proposal

Subscribed and sworn to (or affirmed) before me on this ___ day of , 20___. Signature of Notary Public Printed Name of Notary Public Notary Public, State of Michigan, County of . Acting in the County of (where required). My commission expires .

24

March 2021

INITIATIVE, REFERENDUM AND

CONSTITUTIONAL AMENDMENT PETITIONS

COUNTYWIDE PETITION FORM

PRESCRIBED FORMAT

Public Act 608 of 2018 eliminated the option for the sponsors of statewide ballot proposals to

print and circulate countywide petition forms, and instead required the sponsors to use petition

sheets circulated within a single congressional district. However, in Opinion No. 7310, the

Attorney General concluded that the elimination of the countywide petition form was

unconstitutional and unenforceable, and that petition sponsors could choose whether to circulate

petition sheets on a countywide or city/township basis.

The Michigan Election Law provides, “Petitions circulated countywide must be on a form

prescribed by the secretary of state, which form must be substantially as provided in sections

482, 544a, or 544c, whichever is applicable.” MCL 168.544d. Therefore, pursuant to my

authority under MCL 168.544d to prescribe the format of a countywide petition form for

initiative, referendum, and constitutional amendment petitions, I designate the following petition

format as substantially compliant with the requirements of MCL 168.482:

• The format of the petition sheet must be arranged horizontally.

• If the full text of the constitutional amendment, legislative initiative or legislation being

subjected to a referendum is too lengthy to be printed on a single petition sheet, the

language of the proposal must be continued on a fold over extension on the same sheet of

paper.

• If preparing a multi-page petition, the summary of the proposal’s purpose must be

reprinted in 12-point type on the reverse side of the petition sheet below the identification

of petition type. Additionally, the signature side of the petition sheet must include an

instruction for signers to refer to the reverse side for the full text of the proposal; this

instruction is provided following the summary.

• The entry spaces for the signers of countywide petitions must be presented as shown

below:

25

SIGNATURE PRINTED


CITY OR TOWNSHIP


MO DAY YEAR

1.

2.

• The minimum number of signature lines is five (5) and the maximum number is fifteen

(15).

• The petition may contain an extension for the presentation of instructional or promotional

language, but the extended portion of the sheet must be detached or otherwise removed

prior to the filing of the petition.

Exhibit 6

BOARD OF STATE CANVASSERS MEETING

April 22, 2021

Prepared by

[email protected]: 800.632.2720

Fax: 800.968.8653www.networkreporting.com

Let us assist you GLOBALLY for all of your deposition needs.

BOARD OF STATE CANVASSERS MEETING April 22, 2021

Page 1

STATE OF MICHIGAN

DEPARTMENT OF STATE

JOCELYN BENSON, SECRETARY OF STATE


Video Conference via Microsoft Teams

Thursday, April 22, 2021, 10:00 a.m.

BOARD: MR. NORMAN SHINKLE - ChairMS. JULIE MATUZAK - Vice ChairMR. ANTHONY DAUNT - Board MemberMS. JEANNETTE BRADSHAW - Board MemberMR. JONATHAN BRATER - Elections StaffMS. MELISSA MALERMAN - Elections Staff

APPEARANCES:

For the State: MS. HEATHER S. MEINGAST (P55439) MR. ERIK A. GRILL (P64713) Assistant Attorneys General 525 West Ottawa Street Lansing, Michigan 48909 (517) 373-1110

RECORDED BY: Marcy A. Klingshirn, CER 6924 Certified Electronic Recorder Network Reporting Corporation Firm Registration Number 8151 1-800-632-2720


Page 2

1 TABLE OF CONTENTS

2 PAGE

3

1. Consideration of meeting minutes for approval -4 February 25, 2021 meeting . . . . . . . . . . . . 4

5 2. Consideration of the form of a petition to form a new political party submitted by the

6 Patriot Party . . . . . . . . . . . . . . . . . . 6

7 3. Consideration of the sufficiency of the initiative petition filed by Unlock Michigan . . . . . . . . 10

8

1. Mark Brewer . . . . . . . . . . . . . . . . . 189

2. Christopher Trebilcock. . . . . . . . . . . . 2710

3. Michael Williams. . . . . . . . . . . . . . . 3011

4. Charles Schott. . . . . . . . . . . . . . . . 3812

5. Eric Doster . . . . . . . . . . . . . . . . . 4113

4. Update on canvass of Fair and Equal Michigan 14 initiative petition . . . . . . . . . . . . . . . 64

15 5. Such other and further business as may be properly presented to the Board. . . . . . . . . . . . . . 68

16

1. Senator Ed McBroom. . . . . . . . . . . . . . 7717

18

19

20

21

22

23

24

25


Page 3

1 Via Microsoft Teams Video Conference

2 Thursday, April 22, 2021 - 10:09 a.m.

3 MR. SHINKLE: Hello, everybody. This is Norm

4 Shinkle, the current chair of the Michigan Board of State

5 Canvassers. We are now starting this meeting at 10:09 a.m.

6 I'm calling it to order. In these last nine plus minutes we

7 have been trying to basically get our laptops to behave and

8 all get on in an appropriate fashion to the meeting here.

9 We're all located -- Board members and staff are at the

10 building, the offices of Secretary of State and a lot of

11 people are on the outside waiting to get in the meeting or

12 observing the meeting.

13 So this is a meeting scheduled for April 22nd,

14 2021, Michigan State Board of Canvassers. I'm going to go

15 through the agenda. And, well, the first thing I think we

16 ask because it's not on the agenda, Jonathan, was this

17 meeting appropriately posted?

18 MR. BRATER: Yes, Chair Shinkle, it was. And with

19 your permission, I will just outline the procedures that

20 we'll be using to conduct this meeting remotely?

21 MR. SHINKLE: Sure. Thank you.

22 MR. BRATER: So the meeting was posted, Chair

23 Shinkle, in accordance with the Open Meeting Act -- Open

24 Meetings Act. This meeting is being held remotely pursuant

25 to both the Open Meetings Act and a emergency resolution


Page 4

1 adopted by the Ingham County Board of County -- Ingham

2 County Board of Commissioners declaring a state of emergency

3 within Ingham County related to the COVID-19 pandemic. So

4 the meeting is being held remotely using Microsoft Teams

5 Live. So individuals who have asked to speak before the

6 Board on specific agenda items have been given access to the

7 meeting, a call-in number. Those individuals are currently

8 in the meeting. They will be able to address the Board when

9 the item that they requested to speak on comes up. Other

10 individuals who wish to provide comments to the Board can do

11 so using the Microsoft Teams chat feature. We ask that

12 individuals who are making comments on agenda items using

13 that functionality identify themselves by name and the item

14 on which they are providing their comment.

15 Additionally, because we are meeting remotely, all

16 votes will be conducted by a recorded vote. So Melissa

17 Malerman will be taking a roll call vote of all votes for

18 the Board. And we also ask that Board members identify

19 themselves by name before speaking at least the first couple

20 times so that Marcy, our court reporter, can make a proper

21 transcript and know who is speaking. So with that, I will

22 hand it back to you Chair Shinkle.

23 MR. SHINKLE: Okay. Back to the agenda.

24 Consideration of meeting minutes from our February 25th,

25 2021, meeting. They're in front of us, they've been


Page 5

1 delivered. What's the Board's pleasure?

2 MS. MATUZAK: Member Matuzak moves support --

3 moves adoption. I'm sorry.

4 MR. SHINKLE: Okay.

5 MR. DAUNT: Daunt second.

6 MR. SHINKLE: Okay. Julie -- I'll let you do

7 both, Julie, but let's one at a time here. Okay.

8 MS. MATUZAK: Yes, one at a time. I move

9 adoption.

10 MR. SHINKLE: Support is from?

11 MR. DAUNT: Member Daunt supports.

12 MR. SHINKLE: Okay. Thank you. It's been moved

13 and supported. Any further discussion? Seeing none, all

14 those in favor of approving the minutes from February 25th

15 signal by saying "aye."

16 ALL: Aye.

17 MR. SHINKLE: And all -- oh, sorry. We need a

18 roll call vote? Okay. Melissa, please call the roll on the

19 adoption of the minutes.

20 MS. MALERMAN: Chair Shinkle?

21 MR. SHINKLE: Aye.

22 MS. MALERMAN: Vice Chair Matuzak?

23 MS. MATUZAK: Aye.

24 MS. MALERMAN: Member Daunt?

25 MR. DAUNT: Aye.


Page 6

1 MS. MALERMAN: Member Bradshaw?

2 MS. BRADSHAW: Member Bradshaw just finally got

3 back online after my computer froze and I am a "yes" vote

4 for the minutes of the previous --

5 (Whereupon motion passed at 10:12 a.m.)

6 MR. SHINKLE: Yes. And I am going to say "yes"

7 from now on instead of "aye." Okay. Here we go. We are

8 now in front of us a form for a new political party

9 submitted by the Patriot Party. And, Jonathan, do you want

10 to tell us about this? They were in front of us once before

11 I know.

12 MR. BRATER: Thank you, Chair Shinkle. This is

13 Jonathan. Yes, so it would be this is a petition to form a

14 new political party. The Patriot Party attempted to file

15 this with us in time for consideration of the Board's

16 previous meeting. The paperwork they had provided at that

17 time was not sufficient. We still needed a printer's

18 affidavit and also there was some language, some verbiage

19 that needed to be adjusted on the petition form. We have

20 now gotten the printer's affidavit and to the Bureau's

21 satisfaction, the verbiage that needs to be adjusted has

22 been. So the -- so if the Board does approve this form of

23 the petition, the Patriot Party would then have, or the

24 petitioner would then have to collect a bit over 40,000

25 signatures within 180 day period and then -- within 100 days


Page 7

1 of the date of filing of the signatures looking backwards at

2 which point they would -- they would then have been

3 successful in forming the political party if those

4 signatures were (inaudible). So our recommendation based on

5 the updated paperwork is that the Board does approve the

6 form of the petition as it was submitted.

7 MR. SHINKLE: Okay. And just my question here,

8 the filing deadline is July 21st of next year. So then 180

9 days could start this coming January then as long as it is

10 completed by July 21st. Is that how this goes?

11 MR. BRATER: So all the signatures need to be

12 collected within 180 days of each other. So they can file

13 whenever they want up to July 21st, 2022. But as of the

14 date of that filing, only the signatures that are collected

15 within the 180 days of that filing deadline looking

16 backwards would be counted.

17 MR. SHINKLE: And in this process, do they have to

18 do anything other that collect signatures? They don't have

19 to have a convention or anything until after they file; is

20 that correct?

21 MR. BRATER: That's correct.

22 MR. SHINKLE: Okay. Other questions to Jonathan?

23 MS. BRADSHAW: Mr. Chair?

24 MR. SHINKLE: Yeah.

25 MS. BRADSHAW: It's Jeannette Bradshaw. I have a


Page 8

1 question about the printer affidavit. You know, it's not --

2 in the time that I've been on this Board I haven't seen a

3 printer's affidavit where names have been crossed out and

4 then someone puts their other name on it. I'm not -- I just

5 want to make sure or I haven't seen this before, so I wanted

6 to ask that question. Like, is this something that we've

7 actually agreed to, that someone notarized the document

8 where they crossed out someone else's name. They just

9 didn't print out a new affidavit?

10 MS. MATUZAK: And the follow-up question to

11 that -- this is Member Matuzak -- is Betsy Tappenden the

12 printer?

13 MR. BRATER: So I'm going to hand it off to

14 Melissa to provide details on that. But my understanding is

15 that the version of this affidavit that was notarized

16 already included these corrections. So the sig- -- the

17 Michael name and the signature have been crossed out and

18 replaced with Ms. Tappenden's information. I believe she is

19 the printer. And what was notarized by the notary had

20 already reflected these corrections. But I will just pass

21 it off to Melissa for additional details there.

22 MS. MALERMAN: Yes. So if you look in the lower

23 left-hand corner -- this is Melissa Malerman -- the lower

24 left-hand corner of the affidavit, it says that the

25 affidavit has been subscribed and sworn to by Betsy


Page 9

1 Tappenden. That is the person who presented themselves to

2 the notary public and signed in the notary public's

3 presence. The date that that occurred is February 24th. I

4 can't explain the cross-out, but it is clear to me at least

5 that it is Betsy Tappenden who is, in fact, the printer and

6 is, in fact, the person who's completing the affidavit and

7 identified themselves. They're supposed to present a

8 driver's license or state ID card or something like that to

9 the notary public.

10 MS. MATUZAK: Okay. Thank you.

11 MR. SHINKLE: Okay. Any other questions about

12 this petition to be approved for a new political party? And

13 we have I'm assuming at the beginning of this a recommended

14 motion. So the recommended motion now is in order.

15 MS. MATUZAK: This is Member Matuzak. I move that

16 the Board approve the new political party petition form

17 submitted by the Patriot Party.

18 MR. SHINKLE: Is there support?

19 MS. BRADSHAW: Member Bradshaw supports.

20 MR. SHINKLE: Okay. It's been moved and supported

21 that we approve the new political party petition form

22 submitted by the Patriot Party. Any further discussion?

23 Seeing none, I'll ask Melissa to call the role.

24 MS. MALERMAN: Mr. Chair?

25 MR. SHINKLE: Yes.


Page 10


2 MS. MATUZAK: Yes.


4 MR. DAUNT: Yes.


6 MS. BRADSHAW: Yes.

7 MS. MALERMAN: Mr. Chair, you have four aye votes.

8 MR. SHINKLE: The petition is approved. Motion

9 carries.

10 (Whereupon motion passed at 10:18 a.m.)

11 MR. SHINKLE: Now we're going on to the more

12 substantive issue in front of us today. And on the agenda

13 it is marked "Consideration of the sufficiency of the

14 initiative petition filed by Unlock Michigan." We have

15 several people wishing to speak on this. We have in front

16 of us -- well, before I ask for a witness, the overview of

17 what staff did, Jonathan, do you want to give it?


19 Jonathan. So, yes, this is the mission filing of the

20 signatures occurred on October 2nd, 2020. The number of

21 valid signatures required for this petition were 340,047.

22 The total filing made on October 2nd included 82,739 sheets

23 and 538,345 signatures. In order to review those

24 signatures, the Bureau of Elections staff first conducted a

25 face review of all the sheets and excluded from the sample


Page 11

1 that was subsequently used all of the sheets that were

2 invalid and all the signatures that were invalid. So we

3 included from this sample 348 sheets that contained 1,614

4 signatures. All of those signatures were based on a face

5 review determined to be invalid. There is a breakdown in

6 the staff report of the reasons why those were determined to

7 be invalid. So remaining then in the sample were 82,391

8 sheets containing 536,731 signatures.

9 The staff then proceeded to draw a random sample

10 of 500 signatures. Because of the relatively high volume of

11 signatures that were submitted initially by Unlock, the

12 staff determined that the two-stage sample which initially

13 involves a smaller sample that may be sufficient of 500 was

14 chosen. Based on the sample, we determined that 434 of the

15 506 signatures that were reviewed were verified. There were

16 72 that were determined to be invalid mostly based on -- the

17 signatures determined invalid because of the signer's

18 registration status and some additional errors. The

19 remaining validity rate of 434 out of 506 was well above the

20 minimum threshold that was required by the formula used by

21 the Board of State Canvassers to recommend certification.

22 So based on that, the Bureau of Elections does recommend

23 that the Board determine there is a sufficient number of

24 valid signatures on the petition.

25 There were two challenges that were filed against


Page 12

1 the petition by Keep Michigan Safe and Steve Liedel. Steve

2 Liedel has subsequently withdrawn that and he has withdrawn

3 his request to speak today. Keep Michigan Safe, their

4 challenge remains.

5 So first Keep Michigan Safe challenged a number of

6 signatures that it claimed were invalid in the sample. The

7 disposition of the Bureau of Elections' review of the

8 signatures is covered in the staff report. Of the 168

9 signatures that Keep Michigan Safe submitted for review, 11

10 were alleged to be duplicates that we didn't have line and

11 page numbers to review, so those weren't included in our

12 review. Of the remaining, there were 110 of the challenges

13 that the Bureau of Elections are rejected, 57 challenges

14 that the Keep Michigan Safe made overlap with determinations

15 that staff already made that the signatures were invalid and

16 one challenge was accepted. And then Unlock Michigan also

17 attempted to rehabilitate 64 of the challenged signatures;

18 11 of the signatures that they attempted to rebut were

19 rejected, but one was accepted by Bureau of Elections as

20 rehabilitated and then the remainder, again, overlapped the

21 determination the validity that staff already had been made.

22 In addition to the challenges of specific

23 signatures that were made by Keep Michigan Safe, Keep

24 Michigan Safe also raised a number of additional arguments

25 under which they argued that the Board of State Canvassers


Page 13

1 should not certify the petition be circulated. You have

2 those. The challenge has been provided to the Board members

3 in addition to a response by Unlock Michigan to those

4 challenges. I am happy to provide additional perspective

5 from the Bureau of Elections on any of those challenges that

6 are not already addressed in the staff report, but I'll just

7 briefly say the ones that we do not address in the staff

8 report are not addressed because they either are legal,

9 purely legal arguments, or fall outside of the issues that

10 the Bureau of Elections would typically review. So there

11 was a request that a Board member, Board Member Daunt,

12 recuse themself. That's not something that the Bureau of

13 Elections would make a recommendation on. That's an issue

14 that we would leave to the Board's discretion.

15 There is an argument under the Administrative

16 Procedures Act that the signature sampling process and

17 review process is invalid. That is currently the subject of

18 litigation and there is an argument that's been made on your

19 behalf on that point by the Attorney General's Office. So

20 if there's any questions on that legal argument, I would

21 refer you to the Attorney General's Office who is on this

22 call.

23 The Keep Michigan Safe coalition also challenged

24 the summary of the petition which was drafted by me and

25 approved by the Board of State Canvassers. We do address


Page 14

1 that briefly in our staff report. But essentially our view

2 is that that issue was already being considered by the Board

3 and cannot be considered further because of the Board's

4 approval of the 100-word summary. However, we do believe

5 that 100-word summary was sufficient. Additionally, they

6 make several arguments that information on the form of the

7 petition, including the description of the legislation, some

8 language about the effects of the initiative being passed

9 was insufficient or defective, again, the Board of State

10 Canvassers did approve the form of the petition already and

11 the Bureau's view is that the issues that were raised

12 regarding the form of the petition are not effective, it's

13 not an effective petition, and that the issues that are

14 identified here are not different from other issues that

15 have been -- have previous -- other lines as previously

16 appeared on petitions in the past. But, again, happy to

17 answer any follow-up questions there following the speakers.

18 And then finally, there is a -- there are requests

19 that the Board conduct further investigation about the

20 circumstances under which some of the signatures were

21 collected and some of the behavior by some of the petition

22 circulators. The Bureau of Elections in its staff report

23 reviews the validity of registration of the signers and

24 otherwise reviews the validity of the signatures. The

25 Bureau does not conduct investigations as to whether


Page 15

1 signatures are fraudulently obtained or other things that

2 are not apparent from the review of the petition. So that's

3 not something that the Bureau of Elections has previously

4 engaged on. There was, of course, an Attorney General

5 investigation into some of these circumstances. I believe

6 yesterday the Attorney General announced that they would not

7 be bringing charges regarding those circumstances. But,

8 again, that's not something that the Bureau of Elections

9 typically engages on as far as staff report and so therefore

10 it's not something that we responded to in our staff report.

11 So based on all of that, the Bureau of Elections

12 does recommend that the Board of State Canvassers certify

13 the petition as having a sufficient number of signatures.

14 We have gotten several requests to speak on this matter. As

15 I noted, Steve Liedel had previously requested to speak, but

16 he has subsequently withdrawn that request. So the speakers

17 that we have are Mark Brewer, Chris Trebilcock, Michael

18 Williams, and Eric Doster in that order. So the first

19 speaker who I believe we have on is Mark Brewer. Speakers

20 need to I believe hit *6. I hope that's correct.

21 MR. SHINKLE: Well, before we go to that Jonathan.

22 MR. BRATER: Yes. Go ahead.

23 MR. SHINKLE: I'm going to ask our members if they

24 have any questions for you in your explanation of the

25 petition in front of us. And if they don't, Heather, you're


Page 16

1 on the call. Our last meeting there was an effort to

2 postpone everything based on this investigation from the

3 Attorney General's Office. And if I'm not mistaken, just to

4 clarify what's happened, the investigation is over.

5 Heather, is that your reading of this?

6 MS. MEINGAST: Yes. I know as much as you from

7 the press release and the attached memorandums that were

8 published by the Department of Attorney General yesterday.

9 There was a conflict wall erected in our office, so I was

10 not part or privy to any of the investigation that was done

11 by the Criminal Division in our Department. So my reading

12 of the press release and the attached closing memorandum is,

13 yes, that the investigation is concluded and has been closed

14 with the recommendation of no charges.


16 MS. MATUZAK: Mr. Chair?

17 MR. SHINKLE: Sure.

18 MS. MATUZAK: This is Member Matuzak. My reading

19 of that information was that she did not find enough proof

20 to -- she think -- she thinks to be able to convict beyond a

21 reasonable doubt. Reasonable doubt would not be our

22 standard should we choose to investigate what happened and

23 use our subpoena power to gather additional information.

24 MR. SHINKLE: Okay. Anything else? Any other

25 questions? Okay. Let's move on to our testimony. I'm


Page 17

1 going to start with Mark Brewer. Mark, I know you've

2 requested for a certain amount of time. I know we have your

3 packet here with all the attachments and we've reviewed

4 that. So please, if you can, just paraphrase your arguments

5 and try to limit it to five minutes, Mark. And you're an

6 attorney, so I'm not going to swear you in. Mark Brewer,

7 are you there?

8 MR. MARK BREWER: Yes.

9 MR. SHINKLE: Unmute him if he's muted.

10 MR. MARK BREWER: Thank you, Mr. Chair.


12 MR. MARK BREWER: Board members --

13 MR. BRATER: Mr. Brewer, could you try to adjust

14 your microphone or get closer to it? We're having trouble

15 hearing you.

16 MR. SHINKLE: You're very faint, Mark.

17 MR. MARK BREWER: Chairman and Board members, can

18 you hear me now?

19 MR. SHINKLE: It's still like you're in a chamber

20 of some sort, Mark. If you can raise your volume, that

21 would be good.

22 MR. MARK BREWER: All right. How's this? Is that

23 better?

24 MR. SHINKLE: Oh, that's good.

25 MS. MATUZAK: Much better.


Page 18

1 MARK BREWER

2 MR. MARK BREWER: All right. Very good. Very

3 good. Thank you. Thank you, Mr. Chair. Understanding your

4 limitations, I will tailor my remarks accordingly.

5 This is Mark Brewer of Goodman Acker on behalf of

6 Keep Michigan Safe with my colleague Chris Trebilcock of

7 Clark Hill. Given the time limitations that have been

8 artificially imposed on us and the fact that there has been

9 no evaluation by the staff or anybody else of our voluminous

10 challenge, I'm going to direct my limited time to responding

11 to the response of Unlock Michigan issue by issue.

12 So first of all, as to the disqualification of

13 Member Daunt, Unlock's response is essentially that Board

14 members have no ethical responsibilities at all. They point

15 out a number of revisions that they claim do not apply here

16 at all. And I'll just say simply it's a shame that we live

17 in a time where people that they have no ethical obligations

18 and can shirk their official duties as apparently Unlock

19 asked this Board to do, that essentially the ends justify

20 the means while we have honorable people like your former

21 colleague Aaron Van Langevelde who are punished for honoring

22 their oaths of office. I'll simply conclude this portion by

23 asking that Member Daunt be disqualified from the

24 consideration of the petition for the reasons that we have

25 indicated in our challenge.


Page 19

1 As to our request for an investigation, we

2 detailed many examples of illegal activity in our challenge.

3 Yesterday's report of the Attorney General substantiates

4 those charges because she found that several circulators

5 engaged in illegal activity, although she concluded that she

6 could not prove beyond a reasonable doubt that they were

7 criminal. I'd like to quote from some sections of her

8 report. For example, circulator Catherine Tomassoni, quote

9 from the report, "This suspect clearly violated a criminal

10 statute by signing a petition as a circulator when she did

11 not actually circulate that petition."

12 Circulator David Scott,

13 "The evidence establishes that this paid petition

14 circulator left petitions for voters to sign unattended

15 at a store and signed petitions making certification as

16 a circulator before the voter signed the petition."

17 Circulator Ava Reyes,

18 "The video taken at the Brighton Farmers Market

19 clearly shows that Ms. Reyes told a person it was all

20 right to sign her husband's name and the facts and

21 circumstances indicate that Reyes intended to have that

22 person sign so she could collect payment."

23 And finally and most damningly, the conclusions as

24 to circulator Erik Tisinger,

25 "It would actually be charitable to say that Mr.


Page 20

1 Tisinger exemplifies the worst of the worst in the

2 occupation of professional petition circulators. The

3 evidence indicates that he was fully aware of the

4 requirements of the law and takes relish in finding

5 ways around the rules" and on and on and on in the

6 report.

7 So there is clearly ample evidence of wrongdoing

8 and the Board should proceed to conduct an independent

9 investigation before doing anything further in this matter.

10 Unlock's responses are completely meritless.

11 First of all, Unlock says the Board can't investigate fraud.

12 We're not asking the Board to investigate fraud. We're only

13 asking the Board to investigate illegal signature

14 collection, unattended petitions, people signing a

15 circulator so we're not (inaudible) which the Board has the

16 power to do under the statutes we have cited in our

17 challenge. Unlock's legal cites are to cases that are

18 either irrelevant or actually support our position here.

19 First, they cite cases that are about the substance of a

20 repeal. We're not complaining about the substance of the

21 repeal before this Board at this time. We're asking for an

22 investigation of the signatures. They also confuse the case

23 law that limits this Board's authority to certify elections

24 with its broad authority to investigate elections -- excuse

25 me, investigation petitions. The case law on certifying of


Page 21

1 elections is completely irrelevant here because the Board

2 has very, very broad power in regard to investigating

3 petitions. In fact, the response of Unlock quotes cases

4 that support our position here. Page 9 of their response

5 they quote the Auto Club case which says, "The Board of

6 State Canvassers possesses the authority to consider whether

7 there are sufficient, valid signatures." That is exactly

8 what we are asking for. On page 10 of their response they

9 acknowledge that, "This means the Board can examine 'the

10 validity of signatures.'" That is exactly what we are

11 asking for here. So we ask that the Board take no action on

12 these petitions until there is a complete and thorough

13 investigation of the petitions.

14 As to our Administrative Procedures Act claim,

15 again, Unlock's response is completely unsatisfactory and

16 quite frankly disingenuous. They first argue that

17 essentially the Board doesn't have to comply with the APA.

18 Every other state agency and state board and commission has

19 to comply with the APA, so does this Board. And the statute

20 that we quote in our challenge is quite clear. Unlock then

21 tries to wiggle away from the statute by saying, "Well, the

22 'shall' language in the statute doesn't mean 'shall.'"

23 Unfortunately, they ignore the Standup for Democracy case

24 that the Supreme Court decided in 2012 in which the court

25 told this Board and everybody else in Michigan that in the


Page 22

1 Michigan Election Law, "shall" means "shall." They also

2 claim that we have no right to make this APA claim and that

3 we have not been harmed citing irrelevant, non-election

4 cases. Again, the 2012 Michigan Supreme Court case allowed

5 a private party in a challenge to enforce the use of

6 language "shall" in the election law. Unlock apparently

7 isn't aware of that case because they don't even cite it let

8 alone try to distinguish it.

9 Finally, Unlock claims that the Board can apply

10 rules retroactively. There's nothing retroactive going on

11 here at all. These signatures are before you today for

12 evaluation here and now. Frankly, even if retroactivity is

13 an issue, in their response at page 23 they acknowledge,

14 citing the Michigan Court of Appeals case, that rules can

15 have a retroactive effect if the rules so provide. So that

16 argument is rejected by the courts as well.

17 Finally, Unlock speculates that it will be hurt by

18 new rules which may change the standards, but that is

19 exactly that, speculation. There are no rules right now so

20 no one knows whether Unlock will be hurt. The rules could

21 be the same as the invalid manuals the Board is currently

22 using or they may not be, but that's an issue to be decided

23 after rules are promulgated and, of course, there's plenty

24 of time promulgate rules because this petition doesn't need

25 to be certified until July of 2022.


Page 23

1 In the end, Unlock set a big gamble here and can't

2 complain or play the victim. The statute requiring rules is

3 clear, been on the books for decades, and every election

4 lawyer in this state knows that rules are required here and

5 they don't exist. Their lawyers should have advised them of

6 that, that they were taking an enormous risk proceeding with

7 a petition drive when there are no rules in place to

8 evaluate the signatures. So either Unlock was ignorant of

9 the law or they knew what they were doing and decided to

10 roll the dice. Either way they are not the victims or claim

11 that they are somehow hurt.

12 Mr. Chair, we will rest the rest of our challenge

13 on the many petition defects as well as the invalid

14 signatures on the written documents that we submitted.

15 Except I will state that the staff's conclusion that we are

16 unable to present challenges today because of the previous

17 approval is a violation of my client's due process rights

18 among other things. But the Board refuses to consider those

19 defects and that's obviously something that we will take up

20 in court. But we are not barred here today from challenging

21 the form or the summary of the petition as we have laid out

22 in detail in our challenge.

23 Finally, we ask that the Board conduct an

24 investigation here, and there's ample evidence to justify

25 that, and not proceed until after that investigation is done


Page 24

1 and there are APA rules with -- compliant APA rules in

2 effect governing this process. Until then, the Board should

3 not act, certify or not certify this petition. Thank you,

4 Mr. Chair.

5 MR. SHINKLE: Okay, Mr. Brewer. That's just over

6 eight minutes according to my watch, but -- we've just heard

7 from Mr. Brewer. I want to quick comment before we go to

8 questions from the Board and that is as far as one of our

9 members, the accusation that a member should be

10 disqualified. That accusation has been leveled against me

11 more than once over my 12-year tenure here on the Board.

12 And there are certain positions you hold that you can argue

13 there's a conflict or an appearance of conflict on almost

14 every issue. I mean, I was deputy director -- deputy chair

15 of the State Republican Party for several years while I was

16 on this Board and the party takes positions. I mean, we all

17 have political backgrounds and I think any accusation like

18 that is just without merit and it's not for us to decide

19 anyway. So, with that comment, are there questions to Mr.

20 Brewer from the Board members? No questions? I'm going to

21 move on to the second --

22 MS. MATUZAK: Hang on. Hang on. Hang on. You're

23 moving fast here. I got that --

24 MR. SHINKLE: Is that you Julie? What's your

25 question, Julie? Go ahead.


Page 25

1 MS. MATUZAK: Mark, can you talk a little bit more

2 about the -- the ability to investigate? I've been on this

3 Board a little more than a decade. We've always been told

4 we can't investigate. If someone's standing at a rest area

5 and says the petition does one thing and it really doesn't

6 do that, that that's a matter of fraud and it has to go to

7 the local prosecutor or to the Attorney General. What --

8 what's the distinction between that which we've been told we

9 can't do and your presentation of the statute which says we

10 can investigate?

11 MR. SHINKLE: And let's leave the questions --

12 answering the questions to two minutes, Mark, if you can.

13 Thanks.

14 MR. MARK BREWER: Yes, Mr. Chair. I'll do my

15 best. So the distinction is this: When somebody makes a

16 representation about what's contained in the petition, that

17 is beyond the scope of what you can investigate. But the

18 statute is very clear that you have the authority to

19 investigate the validity of signatures that were collected,

20 specifically things like were they collected in the presence

21 of a circulator or was a petition left unattended as we have

22 alleged in our challenge and as the Attorney General found

23 yesterday, that there were several examples of that, that

24 she found in just the limited investigation that she did.

25 You can also investigate, for example, whether that is a


Page 26

1 valid signature of that person. Did somebody else sign for

2 them or not? If somebody signed for somebody else, that's

3 an invalid signature. It has nothing to do with the verbal

4 exchange between a circulator and a potential signer. So

5 those are the examples of the kinds of things that you have

6 broad authority to investigate and to disqualify signatures.

7 Not based on what a circulator said to somebody, but based

8 on the conduct of the circulator or the conduct of the

9 signer. You have broad authority to disqualify the illegal

10 signatures in that capacity.


12 MS. MATUZAK: Thank you.

13 MR. SHINKLE: Julie, is that it for you? Any

14 other questions?

15 MS. MATUZAK: I'll have more during discussion,

16 but no particular questions.

17 MR. SHINKLE: Jeannette, Tony, any questions for

18 Mr. Brewer? Seeing none, we'll move on to witness number

19 two here and that's Chris Trebilcock. Chris, it says here

20 "if necessary." Are you interested in making comments?

21 MR. BRATER: He may need to -- he may need to

22 unmute himself.

23 MR. SHINKLE: Yeah. Adam, whoever -- Carol?

24 Carol, could you unmute Chris Trebilcock, please?

25 MR. CHRISTOPHER TREBILCOCK: Sorry. I forgot you


Page 27

1 guys automatically mute.

2 CHRIS TREBILCOCK

3 MR. CHRISTOPHER TREBILCOCK: So just quickly,

4 Chairman Shinkle, I wish to address a few points and provide

5 viewpoints Mr. Brewer made. And the first one being on the

6 statement that the staff did not review the challenges to

7 the form of the petition because the Board in last July had

8 prior -- previously approved it. That again, I'd like to

9 make the record clear that the form of the petition that was

10 presented to the Board was never provided to the public.

11 Unlock Michigan provided that form to the Board late on the

12 afternoon before the meeting and it was never provided to

13 the public, it was never made available on the web site

14 prior to the Board meeting, and therefore the due process

15 rights of those who wish to challenge that particular form

16 and its approval by this Board has been violated and we will

17 be challenging that if the Board proceeds with

18 certification.

19 MR. SHINKLE: Well, Chris, I'm going to interrupt

20 you. What is the law on how much time the public has to

21 look at a form before we approve it?

22 MR. CHRISTOPHER TREBILCOCK: In a contested

23 hearing there is case law that the information has to be

24 provided. I believe even if you are following your manual,

25 it provides that that information has to be provided at


Page 28

1 least two days prior to the hearing.

2 MR. SHINKLE: Two days is what you're saying?

3 Okay.

4 MR. CHRISTOPHER TREBILCOCK: Correct. And then

5 second, I would just again respond to the issue and the

6 challenges saying that we have to rush this through. Why

7 and what is the rush? There is no -- the Board, under --

8 under the statute this Board is not required to take any

9 action to approve this until next July 29th, 2022. The

10 question is, is what is the rush? Why are we not taking the

11 time to do this right? The bill, the statutory obligation

12 to confirm that the signatures presented to this Board are

13 true, they're valid, they're correct, let's get this right.

14 Take the time to get the rules in place as the statute

15 mandates. Follow the law. That's what it means.

16 MR. SHINKLE: Okay, Chris. Thank you. My comment

17 would be that, you know, we set out our internal policies

18 here and one of them was that we review petitions like this

19 in 60 days and get that sample out in the field and 60 days

20 from the date this was turned in would be December 2nd. So

21 when you say what's the rush? The rush is just getting our

22 job done in a timely manner is my comment. Questions for

23 Mr. Trebilcock from the Board? Anybody have a question?

24 Okay. Seeing none, I'm going to move on. Now, Jonathan,

25 I've got both Michael Williams and Eric Doster on my list.


Page 29

1 Is that it for this issue as far as original testimony?

2 MR. BRATER: We also got a -- so in addition to

3 those two, we also got a request from Charles Schott to

4 speak so that would be -- actually, can staff clarify? Is

5 Charles Schott requesting to speak on this agenda item or

6 the next one? This agenda item; correct?

7 MS. PIERCE: This agenda item, yeah.

8 MR. BRATER: Okay. Thank you. So Michael

9 Williams, Eric Doster, and then Charles Schott on this

10 matter.

11 MR. SHINKLE: Okay. I'll call on Michael

12 Williams. And Michael, for the record, I can assume that

13 you're a licensed attorney in Michigan; is that true?

14 MR. MICHAEL WILLIAMS: Yes.

15 MR. SHINKLE: I didn't --

16 MR. MICHAEL WILLIAMS: Hi. This is Michael. Can

17 you hear me?

18 MR. SHINKLE: I can hear you now, Michael.

19 MR. MICHAEL WILLIAMS: Okay.

20 MR. SHINKLE: Are you a licensed attorney in

21 Michigan?

22 MR. MICHAEL WILLIAMS: I am, yes.

23 MR. SHINKLE: Okay. Very good. No swearing in

24 necessary. And so Michael, take it away and try to keep it

25 under five minutes, Michael. Thank you.


Page 30

1 MICHAEL WILLIAMS

2 MR. MICHAEL WILLIAMS: Absolutely. And thank

3 your, Mr. Chair. And, again, Michael Williams for Unlock

4 Michigan from Bush Seyferth.

5 I want to start first of all by saying thank you

6 to the incredibly professional staff at the Bureau of

7 Elections. As you saw in their report, they did their sort

8 of typical, meticulous and thorough review of the signatures

9 that were provided. 538,000 plus signatures that were

10 ultimately provided and as you saw from their analysis,

11 their conclusions were that we have more than sufficient

12 signatures to certify this petition. You have now heard

13 today a number of suggestions as to sort of these collateral

14 issues frankly that at least challengers suggest are good

15 reasons not to certify this petition. But for all the

16 reasons we've kind of already laid out, again, these are

17 largely distractions and to the extent that they're properly

18 even considered by the Board, they ultimately prepare a

19 lesson. I'm not going to reread you our response because,

20 again, that's not anything anyone wants to do today. But I

21 do want to briefly address just a couple of the comments

22 that were made by both Mr. Brewer and Mr. Trebilcock just

23 now.

24 On the issue of the qualification, obviously it

25 appears that the Board has the right due there. It's not


Page 31

1 our position that there are no ethical responsibilities at

2 all. Of course that's not the case. It's merely our

3 position that a political association or a political

4 affiliation standing alone is not a good enough reason to

5 find an actual conflict of interest that would bar an

6 individual from discharging their responsibilities as a

7 public officer on a board. There are clear standards that

8 apply to these qualifications and I've heard no suggestion

9 from any of the challengers that any of those standards are

10 actually violated here.

11 So putting that issue aside and moving on to the

12 investigation that was discussed at length by Mr. Brewer. I

13 think it's important to actually go back and look at what

14 was said yesterday by the Attorney General. They ultimately

15 did not find that there were sufficient charges to bring --

16 or, excuse me, sufficient evidence to bring criminal charges

17 against any of the individuals that they talked to, that

18 they investigated. To be clear, the Attorney General said

19 that she was looking into every allegation and every

20 complaint concerning the Unlock Michigan petition process

21 that was brought to their attention. So to the extent that

22 there was a suggestion that there was a limited

23 investigation, I think that that's somewhat inconsistent

24 with what Attorney General Nessel said yesterday.

25 At the end of that process what they said about


Page 32

1 Unlock Michigan was actually quite clear. Said,

2 "Unlock Michigan was completely cooperative

3 throughout the investigation, most importantly, it's

4 representative provided documentation to support the

5 assertion that the committee had acted appropriately

6 ensuring that all circulators were aware of the legal

7 obligations regarding the circulation of ballot

8 initiative petitions."

9 It then goes on to list some of the specific

10 things that Unlock Michigan did including providing talking

11 points, training, copy of the laws an actual video, and at

12 the end it says,

13 "Just as soon as Unlock Michigan became aware

14 of the suspect petitions identified, they pulled those

15 petitions and provided them to the investigator. These

16 suspect petitions were not provided to the Secretary of

17 State to support the ballot initiative."

18 So this discussion about Mr. Tisinger and some of

19 the others, including petitions that were actually sort of

20 advanced by a KMS person who the AG dubbed a provocateur,

21 frankly I think that the Attorney General's report only

22 supports our insistence that Unlock Michigan's petition is

23 fully supported by entirely valid and not at all fraudulent

24 signatures. Most importantly, the challengers are

25 continuing to overlook the important limitations on the


Page 33

1 power of this Board to even investigate fraud. And we heard

2 the challenge today was sort of recharacterized into this

3 illegal signature collection argument. Well, all I can say

4 is that Michigan Civil Rights Initiative, a Court of Appeals

5 case from about 15 years ago, specifically said that

6 168.4762, which is the statute the challengers are citing

7 here today, is not a delegation of additional authority or

8 an expansion beyond the authority prescribed under 476.1,

9 which is just a review and certification of the signatures.

10 "Investigation that goes beyond the four corners

11 of the petition itself and to the circumstances by

12 which the signatures were obtained is clearly beyond

13 the scope of the Board's authority."

14 And that's not me saying that, that's the Michigan

15 Court of Appeals. So although we're very clear and

16 insistent and think that the Attorney General's conclusions

17 yesterday support our notion that there is not any sort of

18 widespread fraudulent activity underlying signatures that

19 were actually submitted by Unlock Michigan, we still take

20 the position that there's no authority on the part of this

21 Board to actually undertake the broad range investigation

22 that the challengers are suggesting it should.

23 As for the APA argument, the Attorney General

24 actually has made that argument well enough for me. They've

25 submitted a brief before the Michigan Court of Claims that


Page 34

1 takes the same position that we do which is that the decades

2 long practice of the Board and the decades long practice of

3 applying the standards and manuals that are being asked to

4 apply today is not a violation of the APA, it's not a

5 violation of Michigan Election Law. And for many, many

6 different reasons it would be inappropriate even if it was

7 to sort of undo the entire process and decline to certify

8 Unlock Michigan's petition here today. And, again, that's

9 not just my position. That's the position of the Attorney

10 General on behalf of both the Board and the Secretary. I

11 don't think it's fair at all to say that Unlock Michigan

12 took "an enormous risk" -- I think is what Mr. Brewer

13 said -- in merely following the procedures that are in place

14 and playing by the rules as they stand today. Mr. Brewer

15 himself has submitted petitions: Rate Michigan, Michigan

16 Time to Care, Michigan One Fair Wage, these are all

17 petitions that he was a part of under the same sort of

18 regulatory regime. So if we're going to -- if we're going

19 to talk about who's disingenuous, then I guess I would say

20 that that might be disingenuous there.

21 The last point I guess I'll address is this

22 question of the review of the form of the petition. And,

23 again, as we suggest in our submission, we do agree that the

24 staff review of the form and the review of the summary, that

25 those should have some effect. Otherwise, sort of what's


Page 35

1 the point of that approval process and what's the point of

2 that Board's early involvement if it's not going to have any

3 early effect? But even if they didn't, even if you were to

4 sort of put those determinations aside, we lay out in

5 extensive detail why our form, why our summary is, in fact,

6 entirely consistent with the standards that are already in

7 place and I have yet to hear any response to any of those

8 specific rebuttal points from our response.


10 MR. MICHAEL WILLIAMS: The very last -- oh, sorry.

11 I'll stop there.

12 MR. SHINKLE: Wrap her up, would you? Thank you.

13 MR. MICHAEL WILLIAMS: Absolutely. The very last

14 thing I was just going to say is a suggestion from Mr.

15 Trebilcock that we simply take our time. Again, the Board

16 understands its responsibility to act expeditiously. We're

17 well past the sort of ordinary 60 days and 500,000

18 Michiganders want to have their voices heard. That's the

19 only reason why we think the Board should act today. Thank

20 you.

21 MR. SHINKLE: Okay. Thank you very much. Are

22 there any questions from Board members to Mr. Williams?

23 Seeing none, I see on my list of people to speak Mr. Doster

24 would speak if necessary. So I'm going to call on Charles

25 Schott right now to speak and then see if Doster still wants


Page 36

1 to speak, Eric. Charles Schott, are you on the call?

2 Somebody can unmute Charles? Mr. Schott, are you there?

3 MR. BRATER: He may need information about how to

4 unmute himself. Oh, could staff remind me what he needs

5 to --

6 MR. SHINKLE: Is it *6? Well, *6 is the --

7 MR. BRATER: *6; is that right?

8 MS. PIERCE: *6, yes.

9 MR. BRATER: Mr. Schott, if you're on, you need to

10 hit *6 to unmute yourself.

11 MS. PIERCE: Mr. Schott, are you still wishing to

12 speak? If you are, you will have to hit *6 on your phone.

13 I cannot unmute you from this end.

14 MR. SHINKLE: Yeah. I see what appears to be his

15 phone number, 248-210-4029 number on our list of

16 participants so I think he's on the call, but he's muted

17 himself. And we can't unmute him? Or what we can do we've

18 already done. Is that right, Carol?

19 MS. PIERCE: That's correct. I can't unmute.

20 It's a privacy thing.

21 MR. SHINKLE: Okay. Okay. We're going to go

22 beyond then from Mr. Schott right to Mr. Doster. Mr.

23 Doster, you say you wanted to speak if necessary. Is it

24 necessary, Mr. Doster?

25 MR. ERIC DOSTER: Chair Shinkle?


Page 37

1 MR. SHINKLE: Yes.

2 MR. ERIC DOSTER: Chair Shinkle, Eric Doster here.

3 Can you hear me okay?

4 MR. CHARLES SCHOTT: Hello?

5 MR. SHINKLE: I can hear you, Eric. Who said

6 "hello" just then?

7 MR. CHARLES SCHOTT: Hello.

8 MR. SHINKLE: Is that Charles Schott?

9 MR. CHARLES SCHOTT: Hello.

10 MR. SHINKLE: Hello. Eric -- hang on a moment.

11 Charles, this is Norm Shinkle speaking to. Charles, are you

12 a licensed attorney in Michigan?

13 MR. CHARLES SCHOTT: No, I'm not.

14 MR. SHINKLE: Do this for me. Raise your right

15 hand. Do you solemnly swear what you're about to say today

16 is the truth, the whole truth, so help you God?

17 MR. CHARLES SCHOTT: So raised and so accepted, I

18 do.

19 MR. SHINKLE: Oh, very good. Thank you very much.

20 Charles, spell your name for the record for us and then go

21 ahead and have -- if you can get it done in a couple

22 minutes, that'd be great. Go ahead, Charles.

23 MR. CHARLES SCHOTT: Certainly. Thank you, Mr.

24 Chair. Charles Schott, C-h-a-r-l-e-s S-c-h-o-t-t.

25 MR. SHINKLE: Go ahead.


Page 38

1 CHARLES SCHOTT

2 MR. CHARLES SCHOTT: And thank you. My comments

3 are brief and just basically I support this petition. I

4 think it's important to note the 60 day limit was mentioned.

5 I didn't see that as part of the report. Mr. Chairman, I'd

6 like you to address the Secretary of State and have them add

7 as an addendum to the report which I didn't see, say, -- I

8 saw the date of submission, October 2nd, I saw the date of

9 the report, April 19th, but nowhere in the comments or the

10 paragraphs were the explanation of why the Secretary of

11 State took more than 60 days. I think that'd be important

12 to let people know what the big holdup was.

13 Other points that I heard today that I'm somewhat

14 curious about and concerned with is Vice Chair Matuzak said

15 that you do have subpoena power. I'd like her to explain

16 that. Previously I heard that the Attorney General

17 influenced the Board by sending out e-mail to either direct

18 to Van Langevelde or direct to the Board members. Mr.

19 Chairman, if you would conduct a roll call vote and see if

20 any member was induced or coerced by any of the respondent

21 today or the Attorney General, her staff, or the Secretary

22 of State? I'd like that to be part of the public record.

23 And lastly, dare I bring up the "ministerial" word

24 used previously several hundred times. I do think the Board

25 has a ministerial duty to merely approve of this petition.


Page 39

1 Thank you, Mr. Chair.

2 MR. SHINKLE: Thank you, Mr. Schott. My

3 comments -- and Jonathan, you can correct me if I veer off

4 track here. But I was asking you, you know, what's the

5 holdup last year and it was the election, all about the

6 election and the audit of the election was the reason this

7 thing was spread out so long. That was my understanding of

8 why it took so long. And Jonathan, is that still the

9 correct analysis of the length of this thing?

10 MR. BRATER: Chair Shinkle, I agree with that. I

11 would just say there is not actually a 60-day requirement.

12 There is no such thing as a 60-day requirement. The 60 days

13 that have been referred to repeatedly I believe are based on

14 a affidavit of declaration that I made in another lawsuit

15 that explained that it usually takes approximately 60 days

16 for staff to complete the review of petitions. In the

17 context of that case, we were talking about the timeline in

18 which petitions are usually submitted, which is usually

19 close to the deadline. That's the time in which the Bureau

20 of Elections has that allocated and has prepared to review

21 petitions and that's usually how long it takes us to get

22 through them. There is no -- there is no specific

23 requirement anywhere that petition process review be

24 completed within 60 days. So that's just not accurate.

25 However, I will say that ordinarily we are able to


Page 40

1 complete review of petitions in less time than was the case

2 here. The reason that that was not the case here is because

3 this petition was submitted on October 2nd, 2020, the month

4 before our presidential election. And as I don't need to

5 remind anyone on this Board, there was quite a bit of

6 activity in that election well after election day that

7 required the Bureau of Elections' attention. So between

8 those two things and the fact that we had then the holidays,

9 we really were not able to focus on that until we got into

10 2021. So that's essentially what accounts for the number of

11 days that it took to complete the staff report here, which

12 was not in excess of any requirement, but was longer than

13 the typical time it takes because of those factors.

14 MR. SHINKLE: Okay. Thank you, Jonathan. Any of

15 the Board members which to comment based on Mr. Schott's

16 testimony?

17 MS. MATUZAK: This is Member Matuzak.


19 MS. MATUZAK: I would just like to point out that

20 we have no rules -- 60 days, communication with other

21 branches of government, communications with each other, none

22 of that's in the rules. And by the way, Mr. Schott, I don't

23 think I've ever received a communication from the Attorney

24 General's Office other than from our staff here at

25 Elections.


Page 41

1 MR. SHINKLE: Okay. Thank you. Anybody else?

2 Any other comments? Okay. I'm going to swivel back to

3 asking Mr. Doster. Eric, if we can unmute him or unmute

4 himself? Are you in a mood to testify or is it unnecessary?

5 MR. ERIC DOSTER: Yeah. Chair Shinkle, can you

6 hear me okay now?

7 MR. SHINKLE: I can hear you.

8 MR. ERIC DOSTER: Okay. Yeah, just very briefly.

9 MR. SHINKLE: And Mr. Doster, I know that you're a

10 licensed attorney. No swearing in is necessary. Go ahead.

11 MR. ERIC DOSTER: Thank you.

12 ERIC DOSTER

13 MR. ERIC DOSTER: Thank you, Mr. Chair. Again,

14 Eric Doster on behalf of Unlock Michigan, the petitioner in

15 this matter. I mean, first and foremost we just want to

16 thank the professional staff at the Bureau of Elections who

17 did their absolute, usual, meticulous review in this case of

18 538,345 signatures. The staff report presented to this

19 Board reflects this meticulous review. And of course you

20 just heard Director Brater's very thoughtful, consistent,

21 detailed analysis, every aspect of every item that's been

22 challenged and responded to with respect to this petition.

23 And after reviewing all the materials in this matter,

24 whether filed by the challengers or filed by us, the staff

25 has determined that this petition should be certified. We


Page 42

1 urge this Board to adopt the staff report. 538,345 Michigan

2 citizens are exercising their constitutional right to

3 petition government. While one would think that citizen

4 participation should be rewarded, campaign finance

5 complaints against this effort have been filed and

6 dismissed. An Attorney General's investigation on this

7 effort was opened and now closed. Mr. Liedel filed two

8 challenges against the form of this petition and now he has

9 withdrawn these form challenges. So with all this

10 distraction that has been thrown against citizen

11 participation and all this smoke screen that's being thrown

12 at this Board, one document is before this Board that stands

13 out like the beacon in the night and, of course, that is the

14 staff report. So, again, we just urge this Board to adopt

15 the staff report and, again, thank you for the opportunity

16 to make these comments.

17 MR. SHINKLE: Well, thank you, Mr. Doster. Any

18 questions of Mr. Doster from Board members? Okay. That

19 completes the witnesses that want to testify that I have

20 anyway. Are there any more out there, Jonathan, do you

21 know?

22 MR. BRATER: Not as far as I know.

23 MR. SHINKLE: Okay. Jonathan, do you have any

24 comments you'd like to make after the testimony has been

25 heard?


Page 43

1 MR. BRATER: Well, I mean, I'll just note that,

2 again, that the Bureau's -- what the Bureau is doing in

3 these staff reports is responding to challenges that are

4 made about the validity of specific signatures. I recognize

5 that the challengers here have raised other issues, some of

6 which are legal, some of which are requesting the Board to

7 exercise it's own discretion or authority. Those are really

8 questions for the Board. But the Bureau's recommendation is

9 based on what it was able to determine based on the

10 information submitted to it regarding the signatures that

11 were provided and the signatures that were in the sample.

12 So our recommendation is generally limited to those issues.

13 I'm, of course, happy to talk about any of the additional

14 issues that have been raised by either side here to the

15 extent that it can be helpful for the Board.

16 MR. SHINKLE: Okay. Jonathan, just so the numbers

17 in my brain are correct, we had 506 signatures in the

18 sample, we -- you, the staff, needed 338 to call this --

19 these petitions satisfactory with enough signatures. 338

20 was the magic number and we ended up with 434. That's 94

21 more than the minimum; is that correct?

22 MR. BRATER: That is correct.

23 MR. SHINKLE: Okay. Question from Board members?

24 Do we have any?

25 MS. MATUZAK: Mr. Chair? This is Member Matuzak.


Page 44

1 Could I request a little five-minute break?

2 MR. SHINKLE: Sure. Five minutes.

3 MS. MATUZAK: Five minutes. Very good.

4 MR. SHINKLE: If I get a ticket for my parking

5 outside --

6 MS. MATUZAK: Hey, I'm parked near, at the same

7 meter so I get it.

8 MR. SHINKLE: Okay. We're at the same time limit.

9 Okay. We'll come back. Right now I got 11:05 and we'll

10 plan on coming back at 11:10.

11 MS. MATUZAK: Okay. Thank you.

12 MR. SHINKLE: Without objection, we are recessed.

13 (Off the record)

14 MR. SHINKLE: The five minutes is over. It is now

15 almost 11 minutes after 11:00. Julie Matuzak (inaudible)

16 and I believe that Julie has a motion she'd like us to

17 consider. Before Julie makes the motion, are there any

18 Board members that have any comments to make? Okay. Julie,

19 the floor is yours.

20 MS. MATUZAK: Thank you, Mr. Chair. I make a

21 motion that the Board of State Canvassers initiate an

22 investigation into the collection of signatures on this

23 petition.

24 MS. BRADSHAW: Member Bradshaw supports the

25 motion.


Page 45

1 MR. SHINKLE: Okay. The motion is made and

2 supported by Jeannette that the Board investigates the

3 collection of the signatures of the Unlock Petition. Is

4 that it? Investigate the collection of signatures?

5 MS. MATUZAK: Well, we've never done this before

6 so I'm not sure what the proper wording would be.

7 MR. SHINKLE: Well, okay. The motion has been

8 made and supported.

9 MS. MATUZAK: Right.

10 MR. SHINKLE: And for the court reporter, it's a

11 motion to investigate the collection of signatures of the

12 Unlock Petition. If you don't like that, I'm not going

13 to -- that's what I wrote down. And so the question is, I

14 mean, how long would the investigation last? What's your

15 thoughts on this, Julie?

16 MS. MATUZAK: Well, my thoughts are that we

17 have -- I made basically these comments before. We've

18 always been told that, you know, someone standing in a rest

19 stop who says that the petition does one thing and it

20 doesn't do another, that that's just the sort of general

21 form of fraud and has to be taken up locally and it's not

22 the Board's business. But I think we are not looking at

23 that sort of casual fraud, if you will. But we are really

24 looking -- our job is to look at these signatures in light

25 of any, frankly, illegal gathering of signatures. It's


Page 46

1 different when someone says, "Petition A does this" when it

2 really doesn't. It's an entirely different thing to violate

3 the warnings and rules on the petition itself. Questions

4 about observing the signatures, questions about signing, who

5 can sign, who doesn't sign. And the Attorney General did,

6 in fact, investigate. Her report indicates that there were

7 a number of folks engaged in if not outright illegal,

8 certainly questionable activities. But her standard of

9 looking at these things is looking for a reasonable

10 expectation that you could convince someone beyond a

11 reasonable doubt. Our expectation is looking at the

12 signatures and how they were gathered and were any of them

13 gathered in violation? I understand that the sponsors of

14 the petition say that none of the questionable signatures

15 were submitted. That's fine. I would like to have a lot of

16 discussion about those sorts of things and have it under

17 oath which is something that we can do under this statute.

18 So this is an activity we have never done. In

19 fact, I was under the impression we specifically couldn't do

20 it until now I've been informed that we can. My motto is

21 learn something new, do something better. And so I'm

22 concerned about the validity of some of these signatures,

23 not the questions about are they registered, not does their

24 signature match, but rather how these signatures were

25 gathered. And I think it behooves us to actually exercise


Page 47

1 our power to look at that. We are the gatekeepers of

2 election integrity and election integrity includes

3 petitions. And I think we let down voters if we don't

4 exercise the power we have to make sure signatures were

5 collected legally. So that's why I'm in favor of the Board

6 conducting an investigation, calling in witnesses under

7 oath, gathering information, and trying to make a decision

8 about this one way or the other. Thank you, Mr. Chair.

9 MR. SHINKLE: Any other comments on Julie's

10 motion?

11 MS. BRADSHAW: Mr. Chair, it's Member Bradshaw. I

12 think the other thing is, you know, we look at -- and I

13 think that Member Matuzak said this point, is that we can

14 petition our government, we want to make sure that we're

15 following the rules that are set in place. You know, in --

16 so I -- that's where I'm at. It's making sure that we

17 can -- we haven't done this, so this is new for us. I sit

18 with Julie on that, that we haven't gone down this road.

19 But to keep the integrity of citizens being able to petition

20 our government, I feel it's important that we do exercise

21 that right to investigate.


23 MR. DAUNT: Chair Shinkle?


25 MR. DAUNT: If I -- if I may just --


Page 48

1 MR. SHINKLE: Tony, go ahead.

2 MR. DAUNT: -- this is Member Daunt. I would

3 just, you know, I'm new to this Board. I have great respect

4 for each of the members on here. But I think in particular

5 what Member Matuzak is saying about, you know, we've never

6 done this before I think is a sign that it's something that

7 it hasn't been undertaken for a reason and that it's

8 potentially opening a what I would consider a Pandora's box

9 for kind of eternal delay tactics on things just because we

10 may disagree with the content. And I think that the staff

11 report has been very clear, you know, it shows ample

12 signatures have met the qualifications and that it is

13 recommended for passage. The Attorney General's Office has

14 conducted an investigation and, as we heard from multiple

15 folks on this meeting already, determined that there was

16 nothing there that was worth investigating further or

17 bringing charges on. And so I think, you know, we could go

18 down many rabbit holes related to, you know, what may or may

19 not have happened, but the evidence before us is that there

20 are ample signatures and that there has been no criminal

21 wrongdoing found, and so I think we should move forward with

22 certification and appreciate the time to make those

23 comments.

24 MR. SHINKLE: Thank you, Tony. Yeah, my comments

25 would be that -- I mean, we've been doing this for years,


Page 49

1 most of us, other than Tony who's kind of new, and we almost

2 always follow staff recommendations. Staff did a thorough

3 review of this. I mean, the Attorney General did a thorough

4 review and it took several months investigating these

5 signatures. It's already been done, this investigation, and

6 the Attorney General found no evidence, insufficient

7 evidence to bring any charges. And so we're going to start

8 another investigation? I mean, talk about delaying this

9 process and it's already been delayed six months and we

10 typically get to these in two months, but the election had

11 helped delay it further. I don't see -- if we -- if we

12 delay this thing indefinitely, I mean, this motion is

13 basically an indefinite delay, we are -- might as well not

14 exist. I mean, our job is to certify petitions and how can

15 we do that if we already delayed six months and delay

16 another six? I mean, it doesn't make any sense to me. We

17 should follow the staff advice. We've got good staff. And

18 not only do they meet the threshold, they went almost 30

19 percent above the threshold, from 338 to 434 signatures of

20 the 506. I mean, that -- that's a tremendous cushion. So

21 even if we find a whole bunch of signatures that we want to

22 throw out, it's not going to make a difference in the

23 outcome that staff is recommending. So I don't think

24 delaying this makes any sense at all. But that being said,

25 any other comments from members?


Page 50

1 MS. MATUZAK: Member Matuzak again?

2 MR. SHINKLE: Sure. Go ahead, Julie.

3 MS. MATUZAK: Second round. I, unlike some on

4 this Board, have approved many petitions I liked and many

5 petitions I haven't liked. And in my mind this is not about

6 delay, frankly. This is about we learn something new -- I

7 learned something new in terms of what this Board is

8 responsible for doing. And as I said, when I learn new

9 things, then I change my behavior. So we have never done

10 one of these before, but now it has come to my attention and

11 I think to others on this Board that we do have this other

12 right and responsibility that we didn't know we had before

13 or were not aware of and perhaps that's our fault for not

14 combing through the statutes. But I learned new information

15 and I intend to -- I would like us to engage in different

16 behavior.

17 And in terms of the delay, quite frankly, the

18 Supreme Court stripped the Governor of most of these powers

19 already. The timeline, the legislature could pass this any

20 time they want to pass this, even if the Governor is going

21 to veto it. They could pass it multiple times. And no

22 final decision on this petition needs to be made until July

23 2022. So I would rather us get this right and if that means

24 establishing new procedures about how we look at things --

25 and the other thing is John Pirich gave us a letter back in


Page 51

1 the fall about this very petition drive and how these

2 signatures were gathered. We didn't do anything formally

3 with it. We accepted it. And he's been -- he was doing

4 this work longer than I've been doing this work and he

5 commented in that letter that he had never seen anything

6 quite as egregious as this in terms of how these signatures

7 were gathered. So I do think it is worth pursuing an

8 investigation. That's my final comment. Sorry.

9 MR. SHINKLE: Okay. Very good. And, Julie, just

10 a quick question. You have no idea how long it's going to

11 take. Who's going to pay for it? Do you have any idea who

12 pays for it?

13 MS. MATUZAK: This is all new territory. We're

14 going to figure that out as we go.

15 MR. SHINKLE: So we don't know who's going to pay

16 for it?

17 MS. MATUZAK: I don't know.

18 MR. SHINKLE: Okay. Okay. I don't know either.

19 Anyway, very good. A motion's on the floor. Any further

20 discussion? A vote "yes" would be a vote to initiate an

21 investigation on the collection of signatures for the Unlock

22 petition. I'll ask Melissa to call the roll.


24 MR. SHINKLE: No.



Page 52

1 MS. MATUZAK: Yes.


3 MR. DAUNT: No.



6 MS. MALERMAN: Mr. Chair, you have two aye votes

7 and two nay votes.

8 MR. SHINKLE: Okay. The motion fails on the two

9 to two vote.

10 (Whereupon motion failed at 11:23 a.m.)

11 MR. SHINKLE: And Julie, is it my understanding

12 that you might have another motion you want to make?

13 MS. MATUZAK: I certainly do.

14 MR. SHINKLE: Okay. Go ahead. The floor is

15 yours.

16 MS. MATUZAK: And I got to tell you this motion

17 has obviously related to this petition, but doesn't actually

18 have a lot to do with this petition. We, I have been on

19 this Board for ten years -- well, first let me make my

20 motion. I'm sorry. I'm speaking before the motion. I

21 should be making the motion. I move that the Board of State

22 Canvassers and the Bureau of Elections engage in an APA

23 rulemaking process to develop rules for the form of the

24 petition, the submission of the petition, the gathering of

25 the signatures, and the canvassing of the said signatures.


Page 53

1 MR. SHINKLE: Do you have that written out, Julie?

2 MS. MATUZAK: I don't, but I can really quickly.

3 MR. SHINKLE: Because I'm not sure. I couldn't

4 get it all down and I doubt our court reporter has got it

5 all down. I got a motion that we engage in the APA process

6 to -- I can't read my words.

7 MS. MATUZAK: Yeah. To develop rules regarding

8 petitions, the form of the petition, the gathering of the

9 signatures, and the canvassing of said signatures.

10 MS. BRADSHAW: Mr. Chair? Member Bradshaw

11 supports the motion.

12 MR. SHINKLE: Okay. And my initial question is,

13 Julie, how do you propose that we engage this process? I

14 mean, physically, what do we do?

15 MS. MATUZAK: The same way everybody else does.

16 We put out -- we draft a set of rules, we put it out for

17 comment, we gather comment, we vote on the rules. I mean,

18 it's a pretty standardized procedure.

19 MR. SHINKLE: And do you have any idea how long

20 it's going to take to adopt all these rules?

21 MS. MATUZAK: Well, I would assume, again, this is

22 a fairly standardized procedure. It's going to take a few

23 months would be my guess to start to gather and write.

24 MR. SHINKLE: It might take a few years, too. I

25 mean, I was in the legislature. I saw how the rules making


Page 54

1 process works. This could be a very long process. And my

2 assumption is while we're doing this rulemaking, nothing

3 else takes place to the Bureau of Elections; is that true?

4 Do you stop everything in its tracks?

5 MS. MATUZAK: Well, you stop to -- you stop to

6 make the rules regarding petitions. Everything else goes

7 on. What do you mean?

8 MR. SHINKLE: But no petition process?

9 Everything --

10 MS. MATUZAK: No petition process.

11 MR. SHINKLE: There's one -- this is about the

12 only petition that they're reviewing right now.

13 MS. MATUZAK: Correct; correct.

14 MR. SHINKLE: And my guess is that this Unlock

15 petition would also stop until the rules are done?

16 MS. MATUZAK: I think it should.

17 MR. SHINKLE: And if it were to stop and the rules

18 were done and if one of the rules adopted isn't exactly what

19 this petition did, would you throw the petition out based on

20 that?

21 MS. MATUZAK: I would have to hear the argument to

22 and fro. We've had some of those arguments today in the

23 challenges and the responses. I would like a more in-depth

24 look at that before I can answer that question. May I speak

25 to why I think this rulemaking is important?


Page 55

1 MR. SHINKLE: Yeah. Go ahead.

2 MS. MATUZAK: Yeah. I mean, I've been on this

3 Board a little more than ten years now and every time a

4 petition comes before us, we have the same debate as to

5 form, as to short title, as to reprinting the entirety,

6 abrogation, timing, I mean, the issues that have come up

7 today, ethics, timelines for approving them or not approving

8 them. Sometimes we try to aim for 60 days, sometimes it

9 doesn't work. We have been having the same debates for the

10 entire ten years I've been here. And we see a lot of very

11 smart lawyers come before us and I understand that proposing

12 and adopting a set of rules may cut into their income a

13 little bit, but they'll figure that out. And then we make a

14 decision based on our procedures that we have sort of

15 written down, but then sometimes we modify the procedures.

16 And when we evaluate signatures, sometimes you got to fill

17 out all the little squares on the petition form, sometimes

18 you don't, sometimes it's okay if someone fills out all the

19 lines except the signature line, sometimes we accept one

20 abbreviation for one town, but a different abbreviation the

21 next time. We're constantly doing this every petition we

22 see. And it's very frustrating because once we make a

23 decision, then one of those smart lawyers sues us and then

24 some judge makes the decision about what the rule is which

25 usually mucks it up even more.


Page 56

1 So this -- this amendment is less about this

2 particular petition or the other one that's in line, and

3 more about finally straightening out a set of rules that

4 everyone has input into and everyone can live with. I think

5 that's how you achieve fairness for voters in this state.

6 Everybody has the same set of rules going in, we understand

7 type size. My God, I do not wish to discuss type size ever

8 again in my life. But if we standardize this, then I think

9 the voters in this state are well served because then you

10 sign a petition that you have some confidence in that your

11 signature is going to count and that everybody's going to do

12 it the same way and that we are going to follow a set of

13 rules that are written down as opposed to our little memos,

14 we have multiple memos. And I, you know, I'm a -- I'm -- I

15 will freely admit that I am a nerd about rules. I like

16 rules. I think rules promote fairness. I think rules

17 promote participation. I think rules promote involvement.

18 And so I very much am about us making a set of rules that is

19 written in stone, if you will, and that involves a process

20 that people get to submit their comments. So -- people

21 walking near me. And so I think that's why I've made this

22 motion. I think it's really important that we all finally

23 get on the same page. So thank you, Mr. Chair.

24 MR. SHINKLE: One moment. One moment here. Okay.

25 We might have a problem with people listening on the outside


Page 57

1 that maybe they can't get on at the moment.

2 I'm just going to respond myself to Julie's

3 comments. I was chair of the Michigan Tax Tribunal for

4 almost eight years and I remember being on that tribunal.

5 Mark Hilpert was one of my judges when I first got there.

6 And we had problems just trying to operate and we found it

7 much easier to go to the legislature and change our statute

8 as opposed to try to get a rules change because it took so

9 long for a rules change. It was easier to amend the

10 statute. And we have amendments to our statute on Election

11 Law all the time. I mean, the font size, everything we do

12 is under statute. We don't need rules. We have statute.

13 Statute trumps rules. So it doesn't make any sense to me

14 that we stop everything until we adopt rules. The

15 legislature can change everything overnight whatever our

16 rules are and that's probably why we don't have rules

17 because we work under statute. And the word "intent," we

18 always try to blame the voter's intent. You're not going to

19 put that in a definition. That is somebody's opinion, "What

20 is the voter's intent?" Whether they cross and circle out

21 or -- I guess everybody is on the call. So the intent

22 cannot be -- it's always in the eye of the beholder what

23 someone's intent may be and we can't fine tune that. I

24 think this motion would just basically suspend the whole

25 Board of Elections process indefinitely, and that final end


Page 58

1 of that is going to be a set of rules that the legislature

2 can nullify in one vote. So I'm not in favor of it. I'd

3 encourage a no vote. Anybody else wish to comment on the

4 motion?

5 MR. DAUNT: Member -- or Chair Shinkle, Member

6 Daunt.

7 MR. SHINKLE: Okay. Go ahead, Tony.

8 MR. DAUNT: I just -- a couple things that come to

9 mind for me would be, you know, we just -- if this issue of

10 the APA rules is so important, we shouldn't forget that

11 prior to taking up this item we approved a petition to form

12 related to the Patriot Party and this discussion was not at

13 all involved with that. And that being said, I do think

14 Member Matuzak makes some points, some good and valid points

15 that require further discussion among this Board and the

16 Secretary's Office and even the legislature regarding the

17 statutes and the rules that govern our activity and what can

18 and cannot be done and what supercedes what.

19 But what we have before us is a petition from

20 Unlock Michigan that has met the threshold of the rules that

21 this Board has been operating under for however many years

22 and I think even if we were to move forward with adopting

23 this resolution from Member Matuzak, it flies in the face of

24 fundamental fairness to have it retroactive to folks who

25 started the process, whether that's the Patriot Party or


Page 59

1 Unlock Michigan or Fair and Equal Michigan or anything else

2 that may be out there that I'm simply not aware of right

3 now. That they started the process with an understanding of

4 the rules as they are now, and to change them and force them

5 to abide by something is much like having a team be up, you

6 know, 55 to 15 in a football game and the rules changed at

7 the last moment where that team with 55, the points they

8 scored are no longer valid because it was done in a way

9 that's since been deemed improper. And I think that that's

10 unfair and it flies in the face of what each of these groups

11 have been operating under when they started the process.

12 MR. SHINKLE: Okay. Is that it?

13 MS. BRADSHAW: Member -- Chairman Shinkle?

14 MR. SHINKLE: Jeannette? Go ahead. Jeannette?

15 MS. BRADSHAW: Yeah, I just -- just to comment on

16 that. If we wait and try to find the perfect time to make

17 this motion, we're never going to make the motion because

18 there's always going to be something that's there. I've

19 been on the Board -- I'm -- I know the question was asked on

20 one of our -- in the live chat that we have. But, you know,

21 I just get reappointed. This is my third term on this

22 Board. I think out of everyone here, Norm, you have been

23 here the longest.

24 MR. SHINKLE: Barely.

25 MS. BRADSHAW: And we have -- and we have sat and


Page 60

1 we've had these questions about rules, about, you know, what

2 is -- I know that the legislature could come in and change

3 things because we've seen it. We've seen it on the recount,

4 we've seen it on other bills. So it -- but for us, for me

5 we need to have a rules making process here. We need to

6 have -- I brought it. I know you guys can't see me but they

7 can hear me. We have a manual which I brought with me today

8 that was given to us in 2013. So over seven years ago. But

9 I'm looking at it and it really doesn't -- it doesn't really

10 address some of the issues that we have that come in. So

11 I'm in support of starting the process. But I just wanted

12 to make that comment. There's never a good time because

13 there's always going to be something that's going to come in

14 front of us.

15 MR. SHINKLE: Okay. And my last comment is that

16 we go by statute. If something needs to be changed, the

17 statute is changed, the Governor signs the bill. If it's

18 not changed, then we go by the Court of Appeals and Supreme

19 Court decisions case law and that's how the manual operates,

20 that's how we operate. And any so-called rulemaking process

21 could be overturned overnight. It makes no sense. I think

22 we're operating just fine the way it is. I think Chris

23 Thomas set up a good program and we got a good staff doing

24 it right now and they just went through this whole process

25 with this petition in front of us. But the petition is not


Page 61

1 in front of us right now and right in front of us now is a

2 delay of this whole process until these rules are

3 promulgated. That is the motion. I'm going to ask the

4 court reporter to read the motion back to us, whatever you

5 got. Could you please do that for us?

6 REPORTER: Give me just a moment.

7 MR. SHINKLE: Sure. Yeah, we need to know what

8 we're voting on here because I have more than one motion

9 written down and I can't read some of my words here. How

10 are we doing with our motion?

11 REPORTER: Just a minute.

12 MR. SHINKLE: We'll just stand at a temporary

13 recess. We're waiting for the court reporter to read back

14 our motion to us.

15 (Off the record)

16 MR. SHINKLE: Okay. The question, right now I

17 asked for the motion to be read back to us. Go ahead.

18 (Read back of motion)

19 MR. SHINKLE: Thank you. Okay. We've had

20 discussion on it. Is there further discussion? Okay. I'll

21 ask Melissa to call the roll. A "yes" vote is a vote to go

22 into rulemaking process, a "no" vote is a vote not to.

23 Melissa?


25 MR. SHINKLE: I'm going to vote no.


Page 62


2 MS. MATUZAK: Yes.


4 MR. DAUNT: No.



7 MS. MALERMAN: Mr. Chair, you have two aye votes

8 and two nay votes.

9 MR. SHINKLE: Okay. The motion fails for lack of

10 receiving three votes.


12 MR. SHINKLE: So back to the agenda. The item

13 that we've been discussing is the valid signatures on the

14 Unlock petition. Staff made a recommendation that the Board

15 certify the petition. It has a sufficient number of valid

16 signatures. On that topic, what is the Board's pleasure?

17 MR. DAUNT: Chair Shinkle, this is Member Daunt.

18 I move that we accept the report from staff considering the

19 sufficiency and move -- I'm probably mucking this up with

20 the wording -- but move forward and certify this petition

21 based on that staff report.

22 MR. SHINKLE: That sounds good to me. I'll

23 support that motion. So the motion in front of us is to

24 approve the petition from Unlock as recommended by staff.

25 Discussion on that motion?


Page 63

1 MS. MATUZAK: I was going to say "Member Shinkle."

2 I can't get you in the chair yet, Norm.

3 MR. SHINKLE: Just say "Shinkle." Everybody

4 knows.

5 MS. MATUZAK: I'll be voting against this motion

6 because I really am committed to the investigation and the

7 rulemaking.

8 MR. SHINKLE: Okay. Any other discussion? My

9 comments would be that we're shutting down the system here

10 indefinitely if we have two votes that say we're not

11 approving anything without an investigation or without

12 rulemaking. It could be a year or more. We're just

13 shutting down and I don't think we should shut down. So I'm

14 hoping we can approve this. They've got well more than they

15 need as far as percent goes, as far as signatures go. Staff

16 did a great job looking at it and they spent a lot of time

17 so I'm encouraging a "yes" vote on the motion. Further

18 discussion?

19 MS. MATUZAK: Just to clarify, Norm?


21 MS. MATUZAK: This motion -- we're past the -- I

22 was merely giving my explanation, but we are past the -- if

23 we deadlock on this or if it passes or it doesn't pass, that

24 bears no relationship on our ability to start the rulemaking

25 process which makes me think --


Page 64

1 MR. SHINKLE: Correct; that's correct. We can

2 always start -- I bet you staff can get started without us,

3 you know, to tell you the truth. But I don't know the

4 answer to that really. But right now the motion's on

5 approving a certification of the Unlock petitions. That's

6 what the motion is. Further discussion on that motion?

7 Seeing none, I'll ask Melissa to call the roll.


9 MR. SHINKLE: Yes.


11 MS. MATUZAK: No.


13 MR. DAUNT: Yes.


15 MS. BRADSHAW: No.

16 MR. SHINKLE: Okay. The motion -- the motion

17 fails two to two. Is that right, Melissa? Sorry. I didn't

18 let you go first.

19 MS. MALERMAN: Yes, sir. That's okay.

20 MR. SHINKLE: Two to two, the motion fails.


22 MR. SHINKLE: Okay. Let's move on. Update of the

23 Fair and Equal Michigan Initiative petition. Jonathan?


25 Jonathan. I'll just give a quick update on this because I


Page 65

1 think we have a speaker who wants to provide comment to the

2 Board during other business. But I'll just say that we

3 have -- in the Fair and Equal petition that was submitted a

4 couple weeks after the Unlock petition, the staff has

5 completed the face review and we are just about done

6 stamping those petitions. So we expect to release a sample

7 I guess pending what this Board determines what to do, but

8 we expect to release a sample in the next few weeks for

9 that. I do want to note that in addition to the traditional

10 paper signatures that were submitted, which were in excess

11 of 340,000, not as many as were submitted by Unlock -- we'll

12 get you an exact number as soon as possible, but I think it

13 was somewhere between 4-, and 500,000. In addition to those

14 there were about 13,000 copies of electronic signatures that

15 were submitted. We are retaining those, but we are not

16 reviewing them or including them in the sample or our

17 account. The Board may recall there was a lawsuit on this

18 issue and as a result of that lawsuit, Fair and Equal was

19 given additional time to canvass but there was no part of

20 that lawsuit that required us to accept electronic

21 signatures. So we have those but what sample we release

22 will not include those, unless we are instructed otherwise.

23 So just an update on that and we will release the sample,

24 again, pending any further discussion on some of the items

25 that have been discussed by the Board today.


Page 66

1 MR. SHINKLE: Well, Jonathan, just in my

2 mathematical head, how many -- they needed -- how many

3 signatures did they need, how many were turned in, and how

4 many were electronic?

5 MR. BRATER: So they needed 340-some thousand. I

6 don't have an exact number for you. We will have that

7 number as soon as we release the sample. It's somewhere

8 between 4- and 500,000, I believe. I realize that's not a

9 very specific number. But whatever number we do release in

10 the sample, which will be subject to the -- you know, the

11 random sampling will not include the 13,000 electronic

12 signatures which we are holding onto but we're not doing

13 anything with essentially.

14 MR. SHINKLE: Yeah. I mean, what might be an

15 appropriate thought here is maybe you should just stop

16 working on it until we have rules approved. I mean, that's

17 the vote of our two members that voted against Unlock.

18 We're not going to do anything until the rules are approved.

19 So if that's the case, there's no reason to waste taxpayers'

20 dollars working on this. That's my just thought right

21 there, so --

22 MS. MATUZAK: I believe, Member Shinkle, that my

23 motion failed and we're not setting a rulemaking process.

24 Again, I support some petitions, I oppose some petitions,

25 but on this Board, if they meet the qualification --


Page 67

1 MR. SHINKLE: Okay. So basically you're saying on

2 some petitions you'll vote for them if you like them, but if

3 you don't like them, you're going to insist on rules being

4 passed first?

5 MS. MATUZAK: Member Shinkle, I would have been

6 very happy to hold up any petition before us to get some

7 rules. You chose not to do that. That's fine. I accept

8 the decision of this Board to not be in a rulemaking

9 process. But any implication that I favor one petition over

10 another is highly offensive.

11 MR. SHINKLE: Okay. Well, so what you're

12 suggesting --

13 MS. MATUZAK: You have no history of me on this

14 Board doing that.

15 MR. SHINKLE: You might vote for a petition

16 without rules is what you just said; right?

17 MS. MATUZAK: I would like to not vote for a

18 petition because we are in a rulemaking process. That

19 rulemaking process was rejected by this Board.

20 MR. SHINKLE: Right.

21 MS. MATUZAK: I will respect that decision. That

22 means the next petition that comes before us we'll examine

23 given the current state of --

24 MR. SHINKLE: Okay. So you might -- you might

25 approve the next one. That's what I was saying. You might


Page 68

1 approve the next one. Very good. Where are we? We're

2 on -- oh, the report. Jonathan, are you done with your

3 report on Fair and Equal?

4 MR. BRATER: Yes, Chair Shinkle, that's all.

5 MR. SHINKLE: Okay. The last thing I think that

6 we're going to talk about is audits and our motion that we

7 made on November 23rd to ask the legislature to review the

8 election process of the 2020 election and I think Senator

9 McBroom might be on the call. Carol, do you know if Senator

10 McBroom is on this call right now?

11 MR. BRATER: Just to clarify, Chair Shinkle.

12 We're now in other business.


14 MR. BRATER: As part of the other business item as

15 you noted, Chair Shinkle, there was a unanimous resolution

16 from the Board that requested the legislature to look at

17 some of the issues from any election. Senator McBroom

18 agreed to come give a quick update on that. I'm also going

19 to -- after Senator McBroom -- give you a quick update on

20 the status of the Bureau of Elections audits which have

21 also --

22 MR. SHINKLE: Right; right. And I have that, your

23 report physically in my hand. So back to -- I'm looking for

24 a phone number that matches -- no, that's not it. Well,

25 bottom line, is Senator McBroom on the call? Well, if he


Page 69

1 gets on, we'll go back to him. But Jonathan, give us your

2 report on the audits of the number for 2020 general

3 election. It would be appreciated.

4 MR. BRATER: Thank you, Chair Shinkle. So I have

5 given some updates on this previously, but we've now

6 completed our report, which you have paper copies of. It

7 will be posted I believe later today if it hasn't been

8 posted already. But -- and I'll just note as I was speaking

9 if we do get Senator McBroom back, I'm happy to defer to

10 him. I know he's probably very busy but I'll just go on

11 until we get him.


13 MR. BRATER: We conducted this year the most

14 extensive post-election audits in the history of the state.

15 In addition to the more than 200 randomly selected voting

16 precincts that are audited for procedures as it happened in

17 past cases, we also conducted a full hand count -- well, I

18 should say we also conducted four in-depth audits of absent

19 voter counting boards in four major cities. And in addition

20 to that, we conducted a statewide risk limiting exercise

21 which was essentially a random sample -- talk about random

22 sampling today -- but essentially a random sample of ballots

23 that were cast throughout the state to compare the

24 presidential election, so those randomly reflected ballots

25 to what the tabulator totals were statewide. And in


Page 70

1 addition to that, we also in Antrim County, Michigan

2 conducted a full hand count of all the ballots that were

3 cast in that county for the presidential election.

4 So the full report details what was found in all

5 these audits, but I'll just -- I'll just go over some top

6 lines and, of course, happy to answer any questions or

7 follow up on this in a future meeting if you want a chance

8 to digest the report. But essentially among the 200 audits

9 that were conducted by county clerks of in-person precincts,

10 we did get confirmation that those audits were all

11 completed. They review extensively a number of issues

12 including whether the local jurisdictions properly published

13 pre-election notices, whether they properly conducted tests

14 of election equipment, whether election equipment was

15 properly used on election day, whether all the records that

16 are required were retained. So those -- those audits were

17 completed. They were extensive. Those audits also included

18 I should add a complete hand count in those precincts of all

19 the votes that were cast for U.S. Senate and we did not get

20 any reports that based on the review of the paper ballots

21 that were reviewed in all those precincts for the U.S.

22 Senate vote that there were any significant disparities from

23 the tabulated total, which provides a measure of additional

24 confidence there. I will just note that there is a more

25 detailed -- you know, the counties aren't required to


Page 71

1 provide detailed reports on their audits, but they can and

2 there was a more detailed report that was produced by Ottawa

3 County which I would recommend. I think it's a very good

4 explanation of the process and it's in a footnote to the

5 report.

6 Secondly, the absent voter counting board audits.

7 So this has not been done previously, but in this election

8 the Bureau of Elections decided to look at absent voter

9 counting boards in four of the largest cities in the state:

10 Sterling Heights, Livonia, Detroit, and Grand Rapids. The

11 reason we decided to do that is because -- and I'm getting a

12 note that Senator McBroom may be on, so I'm happy to pause

13 this. I have probably three or four more minutes so just

14 let me know what your preference is and feel free to

15 interrupt me.

16 MR. SHINKLE: Well, you're on counting boards.

17 I'm thinking counting boards. Why don't you finish up with

18 the counting boards?

19 MR. BRATER: Yeah. Okay. I'll try to summarize

20 quickly. The reason we decided to look at absent voter

21 counting boards is that this year a larger percentage of

22 absent voter counting boards were out of balance, meaning

23 that the number of votes in the poll books didn't match --

24 the number of names in the poll books or voting list didn't

25 match the number of ballots exactly. In previous elections


Page 72

1 we've usually seen this happen more in in-person voting

2 precincts and the absent voter counting boards have

3 generally been more in balance. But this year, for a

4 variety of factors which are explained in the report but

5 mostly have to do with the massive increase in the number of

6 absentee ballots that were received, we saw in a lot of

7 larger cities that more of that counting boards are out of

8 balance. So we worked cooperatively with the city and

9 county officials in all of those cities and we spent several

10 days at least going through each of those counting boards,

11 reviewing the ballots in the containers, reviewing the names

12 on the lists of voters, and reviewing the number of

13 envelopes, the actual AV envelopes, to try to determine a

14 reason why some of these counting boards are out of balance

15 and, in fact, if they were actually out of balance or

16 whether more time would have revealed that they actually had

17 explanations or were invalid.

18 I will just say that all of the cities and

19 counties, both parties put -- you know, officials of both

20 parties and appointed officials were extremely open to the

21 audits, they participated actively in the audits, and they

22 welcomed the audits. I just want to commend all those

23 officials in all those cities and counties for their real

24 dedication to that process and openness to it. We did

25 determine that most of those out of balance precincts


Page 73

1 actually could be balanced or explained with more time. So

2 we were able to identify issues like an absent voter ballot

3 envelope that actually had been received but hadn't been put

4 into the computer system as received which was throwing off

5 the numbers. Or a lot of issues in which ballots were

6 improperly duplicated which led to the numbers being off.

7 There's details about all those things in the report. But

8 we did find that after further review, most of those issues

9 could actually be explained but they were not able to be

10 identified on election night or the day after the election

11 in many cases or during the two-week canvass period that the

12 county set.

13 We think that there's a lot of issues that need to

14 be addressed in terms of training and design of systems

15 which is a shared effort that both the cities, the county,

16 and the state all need to work together on to improve, but

17 those -- those really focus primarily on protocols to ensure

18 daily tracking and controls of applications and envelopes to

19 keep all the numbers in line, training on identifying empty

20 envelopes which can be a real tricky issue when you're

21 trying to balance numbers -- we do get some of those -- and

22 also issues on ballot duplication which, when a ballot needs

23 to be duplicated because it's not reading properly, that can

24 be a real source of challenge and errors. So those are

25 going to be the major points of clarity.


Page 74

1 The final thing I'll just say is that we looked at

2 about 317,000 total absentee ballots in those four cities

3 and although there were some issues, there were certainly

4 some precincts that were out of balance. The total

5 difference for those 317,000 when looking at the absent

6 voter ballot list, the actual envelopes for the absent voter

7 ballots and the ballots themselves, the actual difference

8 was there was 22 fewer ballots or 21 fewer ballots in those

9 four places than there were names on lists. So any

10 suggestion that there was some sort of large number of

11 ballots that should have been -- you know, shouldn't have

12 been counted that were still didn't hold up when looking at

13 those numbers. And so while controls are needed and better

14 procedures are needed all across the state, we do think that

15 the -- -- in doing the core function of administering the

16 election, all four of those cities and counties did the

17 fundamental job of counting the ballots that should have

18 been counted. But certainly there are rooms -- there

19 certainly are a lot of areas for improvement at all levels.

20 Finally, the biggest issue, frankly, is that the

21 clerks and the counties don't have enough time to do this.

22 When you're asking them to take two or three times as many

23 absentee ballots and start tabulating them on election

24 morning and then expecting them to get through all of these

25 ballots and keep all the numbers up to date, we want that to


Page 75

1 happen but if it's going to be the case if you, if you

2 require this under a short amount of time when people get

3 fatigued and are under a lot of pressure, you are going to

4 see errors. What compounds that is the fact that counties

5 only have less than two weeks to complete the canvass

6 process for all of their jurisdictions. That's enough time

7 for small counties. But if you're talking about Kent

8 County, Oakland County, Wayne County, Macomb County, some of

9 the biggest counties in our state, they have so many more

10 ballots and so many more voters to deal with that they

11 simply just need more time. And, in fact, a lot of the

12 issues that we identified probably would have been caught by

13 the county canvassers if they had an extra week. So we

14 think that they need more time to do that.

15 MR. SHINKLE: Very good.

16 MR. BRATER: And fi- --

17 MR. SHINKLE: Go ahead, Jonathan.

18 MR. BRATER: Okay. And then finally I'll just say

19 very quickly the risk and the audit, the numbers, in fact,

20 basically matched up. So we did a statewide review of

21 ballots, the percentage we saw on these randomly selected

22 ballots, which are paper ballots, matched the tabulated

23 totals. So there's no reason to think that there were any

24 problems with the machines statewide. So with that, I'm

25 happy to answer any questions, but I think we might have


Page 76

1 Senator McBroom on.

2 MR. SHINKLE: Yeah. Senator McBroom is ready to

3 go. Jonathan, before we get to Senator McBroom, I know you

4 said you're making suggestions on changes to internal

5 policies and training. Are you making any suggestions in

6 your report on statutory changes?

7 MR. BRATER: Yes. We're recommending that clerks

8 be allowed to tabulate ballots before election day, which

9 would give them much more time to get through them

10 accurately. We're recommending that there be at least

11 another week for the post-election canvass. And then we're

12 also recommending that some of the strict rules about

13 recountability of out-of-balance precincts be adjusted so

14 that some of these precincts that are out of balance can

15 actually be included in recounts under certain circumstances

16 because the strict recountability rules we have are part of

17 the reasons these out-of-balance precincts are a problem and

18 we think that there needs to be some closer look at why

19 exactly we're not allowing recounts in some circumstances.

20 MR. SHINKLE: Okay. That being said, I'm flipping

21 it over to Senator McBroom. Senator McBroom is the chair of

22 the Oversight Committee and you've been having some

23 hearings. Senator McBroom, are you with us?

24 SENATOR ED MCBROOM: I'm here, Chairman Shinkle.

25 MR. SHINKLE: Take over. It's all yours.


Page 77

1 SENATOR ED MCBROOM

2 SENATOR ED MCBROOM: Thank you very much Chairman

3 Shinkle and I want to pass on my thanks to Director Brater

4 for that presentation and we're very much looking forward to

5 having him and the Secretary of State come before the

6 committee to share those findings and such with us in more

7 detail. My committee, as you probably know, since November

8 has been also doing a investigation and many of our findings

9 are very much parallel or verify the same things that you

10 were just hearing from Jonathan. And so I haven't yet

11 completed the report because it just seems to continue to

12 grow as I try to make it as comprehensive as possible to

13 demonstrate to voters where there were weaknesses and where

14 they can be assured that the results are accurate in the

15 last election and it's very extensive. We do hit on, you

16 know, a number of the key points I think that you already

17 heard Jonathan mention about process and the need for more

18 time for processing, for Boards of Canvassers, et cetera. I

19 also discuss and I go into great lengths about how we

20 researched allegations of deceased voters voting, out-of-

21 state voters voting, the difficulties and the problems that

22 come along with the unsolicited mailing of applications, the

23 confusion that arose for people who thought they were

24 receiving ballots or claimed that they had received ballots

25 unsolicited. It goes on and on and it's a very lengthy


Page 78

1 thing. Of course spent a lot of time looking at what

2 happened in Antrim County and providing additional research

3 into that issue as well. And the reliability of the

4 machinery that we used in the state as continues to be

5 verified by hand recounts, and just overall the very

6 difficult and hard work our Boards of Canvassers such as

7 yourselves and our local boards do and our election

8 officials all over this state. It's been a enormous

9 undertaking for myself personally and for the members of my

10 committee. I'm very proud of what we're putting together

11 and I look forward to being able to release it to all the

12 folks of this state very soon. With that --

13 MR. SHINKLE: And when do you think that might

14 happen? When do you think it will be released?

15 SENATOR ED MCBROOM: Well, I just stayed up 'til

16 2:00 o'clock in the morning last night still working on it.

17 So, I mean, I am trying very hard to get it done. I thought

18 I'd have it done a couple of weeks ago and as you may know

19 there continue to be kind of evolving theories and

20 speculation, and so that continues to add to my efforts as I

21 try to get ahead of those curves. And I think I'm getting

22 to the point where I'm having to personally recognize that

23 some of these things I'm just never going to get ahead of

24 and I need to get out what we've put together. Even if it's

25 a interim and isn't completely finalized because I do feel


Page 79

1 very much that having the Secretary of State and Mr. Brater

2 come in to testify is a significant part of what we want to

3 include in the report, and there's some other issues such as

4 the usage of private money to fund election activities at

5 the government level that deserves more look than we've had

6 a chance in the committee yet to give it.

7 MR. BRATER: Okay. And when your report comes

8 out, where will it be?

9 SENATOR ED MCBROOM: Well, the committee will

10 adopt --

11 MR. SHINKLE: How will it be accessed when it

12 comes out?

13 SENATOR ED MCBROOM: The committee will adopt the

14 report and make it available online or through my office.

15 MR. SHINKLE: Okay. And Jonathan, is your report,

16 which is over 40 pages here, I think, is it online right

17 now, your report?

18 MR. BRATER: It is either online or will be posted

19 shortly. I can certainly feel Senator McBroom's pain about

20 the difficulty of completing a voluminous report. But we

21 have completed it and if it's not already up on the web

22 site, it will be some point today.

23 MR. SHINKLE: Okay. Senator McBroom, thank you

24 for being on. Do any members have any questions for Senator

25 McBroom while he's still on the call? Okay. Well, Senator


Page 80

1 McBroom, what's hometown for you?

2 SENATOR ED MCBROOM: I'm up near Norway, which is

3 kind of in between Escanaba and Iron Mountain.

4 MR. SHINKLE: Okay. Yeah. My deer camp was Iron

5 County, Crystal Falls Township. Haven't been there in a few

6 years since my dad passed, but beautiful territory where you

7 grew up. Anyway, thanks for being on the call, Senator

8 McBroom. Have a good day.

9 SENATOR ED MCBROOM: Thank you. Thank you, Mr.

10 Chairman, and members of the committee. Appreciate it.

11 MR. SHINKLE: Okay. I think we're -- we're under

12 other business. Any other business to come before the

13 Board? Go ahead.

14 MS. MATUZAK: Well, it's related to the report.

15 Jonathan, I would like a chance to take this home and

16 actually read it rather than skim through it and so hope

17 that it can be brought back to whatever the next meeting is

18 that we have so we can have a little more in-depth look at

19 it.

20 MR. SHINKLE: Well, yeah. I mean, the

21 communication back and forth with Jonathan Brater are

22 totally appropriate, but the Board -- I don't believe the

23 Board is going to be voting on this report. It's just a

24 report from Jonathan. Is that correct, Jonathan?

25 MR. BRATER: That's correct, but, of course, I'm


Page 81

1 happy to -- you know, I'm happy to answer any questions. We

2 typically have questions that come up during other business

3 about election administration issues. I'm always happy to

4 answer those questions. And I recognize that you probably

5 haven't had a chance to read this report, so we'll -- you

6 know, we can talk about that whenever it is appropriate or

7 whatever the Board prefers.


9 MR. SHINKLE: Any other questions or any other

10 business to come before this Board? And as in the past, I

11 don't ask for a motion to adjourn. I just say without

12 objection we're going to adjourn. We are adjourned. Thank

13 you, everybody.

14 (Proceedings concluded at 12:05 p.m.)

15

16 -0-0-0-

17

18

19

20

21

22

23

24

25

Exhibit 7


February 25, 2021

Prepared by

[email protected]: 800.632.2720

Fax: 800.968.8653www.networkreporting.com

Let us assist you GLOBALLY for all of your deposition needs.

BOARD OF STATE CANVASSERS MEETING February 25, 2021

Page 1

STATE OF MICHIGAN

DEPARTMENT OF STATE

JOCELYN BENSON, SECRETARY OF STATE


Video Conference via Microsoft Teams

Thursday, February 25, 2021, 2:00 p.m.

BOARD: MS. JEANNETTE BRADSHAW - Chair/Board MemberMR. ANTHONY DAUNT - Board MemberMR. NORMAN SHINKLE - Board Member/ChairMS. JULIE MATUZAK - Board Member/Vice ChairMR. JONATHAN BRATER - Elections StaffMS. MELISSA MALERMAN - Elections Staff

APPEARANCES:

For the State: MS. HEATHER S. MEINGAST (P55439) MR. ERIK A. GRILL (P64713) Assistant Attorneys General 525 West Ottawa Street Lansing, Michigan 48909 (517) 373-1110

RECORDED BY: Marcy A. Klingshirn, CER 6924 Certified Electronic Recorder Network Reporting Corporation Firm Registration Number 8151 1-800-632-2720


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1 TABLE OF CONTENTS

2 PAGE

3

1. Consideration of meeting minutes for approval -4 December 23, 2020 meeting . . . . . . . . . . . . 4

5 2. Election of Board Chairperson and Vice-Chairperson for terms ending February 1, 2023 . . . . . . . . 5

6

3. Consideration of multiple proposed de minimis 7 modifications to approved voting systems:

8 a. Addition of an alternative equivalent circuit board part to the Approved

9 Manufacturers List as "preferred," change in status of the existing circuit board

10 part to "alternate," and clerical changes to user manual, submitted as ECO No. 1389

11 by Hart InterCivic . . . . . . . . . . . . . 8

12 b. Replacement of an obsolete commercial-off-the-shelf (COTS) monitor

13 used with the Verity workstation with an equivalent product recommended by the

14 manufacturer, submitted as ECO No. 1440 by Hart InterCivic . . . . . . . . . . . . . 11

15

c. Replacement of an obsolete battery with an 16 extended-life battery used to power the

accessible voting device, submitted as 17 ECO No. 1103 by Election Systems and

Software (ES&S). . . . . . . . . . . . . . . 1318

4. Update on the processing of initiative petitions . 1519

a. Chris Trebilcock. . . . . . . . . . . . . . . 2020

5. Consideration of the form of a petition to form a new 21 political party submitted by the Patriot Party. . --

22 6. Such other and further business as may be properly presented to the Board . . . . . . . . . 31

23

24

25


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1 Via Microsoft Teams Video Conference

2 Thursday, February 25, 2021 - 2:02 p.m.

3 MS. BRADSHAW: Okay. I'd like to welcome

4 everyone. I'd like to welcome everyone to the Michigan

5 Board of State Canvassers meeting. Before we begin, we'll

6 have Elections Director Jonathan Brater explain how our

7 meeting will be run today.

8 MR. BRATER: Thank you, Chair Bradshaw. This is

9 Jonathan. I can confirm that the notice for the meeting was

10 posted in conformance for the Open Meetings Act and this

11 meeting is being held remotely in accordance with the Open

12 Meetings Act as amended by Public Acts 228 and 254 of 2020.

13 A couple notes about how this meeting will be

14 conducted. We're conducting it remotely using Microsoft

15 Teams Live. Those individuals who have requested to speak

16 to the Board live on an issue on the agenda have been given

17 a call-in number so we'll be able to speak with you

18 directly. Other members of the public who are participating

19 and who would like to comment on an issue before the Board

20 can do that using the chat feature in Microsoft Teams. We

21 ask that the individual provide the individual's name as

22 well as the agenda item on which the individual is

23 commenting.

24 A couple other points in terms of how the meeting

25 is going to work. We are going to request that individuals,


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1 at least the first couple times to speak to announce

2 themselves by name so that our court reporter can know who

3 is speaking. Any and all votes will be by roll call vote.

4 Melissa Malerman will take the roll for votes. And with

5 that, we should be good to go.

6 I'll note that we do have a new Board member, Mr.

7 Anthony Daunt. Welcome, Board Member Daunt. And with that

8 I will hand it back to you, Chair Bradshaw. Oh, sorry, one

9 other item. I apologize. I think I should mention that on

10 the agenda we do have one tentative item that we were

11 (inaudible) a petition form for a new political party, for

12 the Patriot Party. We did not get a printer's affidavit for

13 them, so that will not be on the agenda today. And at such

14 time we do (inaudible) that we need one, we'll bring it back

15 before the Board at the appropriate time. So with that,

16 I'll hand it back to you Chair Bradshaw.

17 MS. BRADSHAW: Thank you very much Director

18 Brater. We're going to move on to our agenda and that is to

19 the consideration of the meeting minutes for approval from

20 our December 23rd, 2020 meeting.

21 MR. SHINKLE: I move for approval. This is Norm.

22 MS. MATUZAK: Julie supports.

23 MS. BRADSHAW: It has been moved and supported to

24 approve our minutes from our meeting held on December 23rd,

25 2020. Is there any discussion? Hearing none, Melissa, will


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1 you please take a roll call vote?

2 MS. MALERMAN: Chair Bradshaw?


4 MS. MALERMAN: Mr. Daunt?

5 MR. DAUNT: Yes.

6 MS. MALERMAN: Ms. Matuzak?

7 MS. MATUZAK: Yes.

8 MS. MALERMAN: Mr. Shinkle?

9 MR. SHINKLE: Yes.

10 MS. MALERMAN: Madam Chair, you have four aye

11 votes.

12 MS. BRADSHAW: And so the motion is moved.

13 (Whereupon motion passed at 2:05 p.m.)

14 MS. BRADSHAW: So our next agenda on our -- the

15 next item on our agenda is the election of a new chair and

16 vice chair.

17 MR. BRATER: Thank you, Chair Bradshaw. The

18 Michigan Election Law requires the Board elect a chair and

19 vice chair during the month of February in odd number years,

20 and so that is the item before the Board now. The motion

21 can either be made with a single motion to elect a

22 chair/vice chair, or separate motions if the Board prefers.

23 MS. BRADSHAW: What is the pleasure of the Board

24 today, one motion or two?

25 MR. DAUNT: I'm the new guy. It doesn't matter to


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1 me as long as I'm not selected as chair. I think generally

2 my understanding is it's been kind of rotated between the

3 parties and given that, that narrows it down to myself or

4 Norm for this one and so, you know, I would intend to

5 nominate Norm to serve as chairperson. Don't want to make

6 any assumptions as to which of you ladies would like to be

7 the vice chair. So if you would prefer to do it for Julie,

8 well, then I'll make this easy. This is Tony Daunt. I

9 nominate Norm Shinkle to serve as chairperson and Julie

10 Matuzak to serve as vice chairperson of the Board of State

11 Canvassers for the term February 1, 2023.

12 MS. BRADSHAW: Is there support for Tony's motion?

13 MR. SHINKLE: I'll support it.

14 MS. BRADSHAW: It has been supported. Is there

15 any discussion on the motion? I just want to say on the

16 discussion thank you very much for allowing me to be chair

17 for the last two years and I look forward to going into the

18 next two years as a member. Is there any other discussion?

19 If none, Melissa, will you please take a roll call vote?

20 MS. MALERMAN: Ms. Bradshaw?



23 MR. DAUNT: Yes.

24 MS. MALERMAN: Ms. Matuzak?

25 MS. MATUZAK: Yes.


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1 MS. MALERMAN: Mr. Shinkle?

2 MR. SHINKLE: Yes.

3 MS. MALERMAN: There are four aye votes.

4 MS. BRADSHAW: The motion is moved.


6 MS. BRADSHAW: And I now hand the gavel to new

7 Chairman Shinkle.

8 MR. SHINKLE: I do have a gavel. It's up on the

9 wall. I'm going to leave it there for now. I'll use my

10 phone to bang anything if I need it. I just want to say in

11 my 12 years on the Board, this last two has been the most

12 unique and Jeannette you have done a splendid job being fair

13 to everybody that's on the call. Thank you for being chair

14 in this unique time.

15 So I'm just going to go right back to the agenda.

16 And we got the consideration of multiple de minimis

17 modifications for voting systems. Jonathan, you want to

18 take this?

19 MR. BRATER: I'm sorry, Chair Shinkle. We had a

20 technical issue there.

21 MR. SHINKLE: That's okay. We're on the motion

22 for de minimis modifications. If you want to address what's

23 on the agenda?

24 MR. BRATER: Yeah. Thank you, Chair Shinkle. And

25 thank you also Board Member Bradshaw for your service and


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1 leadership. We had a slight -- we have a slight technical

2 issue where I think the visual -- the ability of members of

3 the public who are watching it to see. The agenda on the

4 screen has come down, but they can still hear us. So I

5 think we'll probably get visual back up, but I just wanted

6 to flag that for the Board.

7 So there are three de minimis changes for the

8 Board to consider. A de minimis change is a change that is

9 one in which it will not materially alter in a system's

10 reliability, functionality, capability or operation, and

11 that the original hardware and the replacement hardware are

12 electronically and mechanically interchangeable and have

13 identical functionality and tolerances. So each of these

14 three are de minimis.

15 The first for the Board to consider is a de

16 minimis modification to approve voting system Hart ECO No.

17 1389. It makes two changes essentially. One is that it

18 adds a new circuit board component which is a buck

19 converter. It already uses a buck converter, but what a

20 buck converter does is adjust the voltage within the circuit

21 board to control the temperature and reduce the amount of

22 heat that's emitted which extends the battery life on the

23 circuit board. So this basically swaps in a newer buck

24 converter model as the preferred chip to be used and

25 redesignates the existing preferred model as an alternate


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1 chip that can still be used as an alternate. The other

2 thing it does is it corrects basically some typos in the

3 manual that describes the approved manufacturer's list.

4 There were some digits that were transposed and model

5 numbers that are being fixed in the manual. So those are

6 the two changes and it has been approved as de minimis by

7 U.S. Elections and Systems Commission.

8 MR. SHINKLE: Jonathan, do you want us to handle

9 these one at a time?

10 MR. BRATER: Yes, Chair Shinkle. I think that

11 would be the most efficient way.

12 MR. SHINKLE: Okay. So we're on agenda item --

13 they're not numbered -- but de minimis small letter a.

14 What's the Board's pleasure?

15 MS. BRADSHAW: Chairman Shinkle, if I may ask a

16 couple questions?


18 MS. BRADSHAW: Okay. So someone generally ask

19 when we have the kind of component changes, obviously moving

20 a designation from a alternate to preferred and making it

21 function that these buck converters are, you know, it's

22 not -- it's not a necessary at this time, but more for most

23 likely maintenance. And what is the cost on these or is it

24 included in that maintenance cost that's usually covered?

25 MR. BRATER: My expectation -- and I will ask Dave


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1 Tarrant from my staff to jump in if I say anything that's

2 not accurate, please do. But I believe that this is

3 something that would be done during routine maintenance.

4 When a machine is undergoing the typical cycle maintenance,

5 they would swap this chip in, but I'm not actually sure

6 about that so I just want to verify that with Dave.

7 MS. MALERMAN: Jonathan, this is Melissa. If Dave

8 is not on the call, I can verify that the intention is to

9 address these issues at preventive maintenance.

10 MS. BRADSHAW: And also if I may, Chairman

11 Shinkle, add my additional question? And that is, is there

12 a difference between the high speed tabulators? Are these

13 for the tabulators themselves or is this for a different

14 component?

15 MR. BRATER: If I believe -- again, I will ask to

16 be corrected if I'm wrong -- but I believe that this is for

17 the regular speed tabulators for Hart. I don't believe this

18 would be used for the high speed equivalent with Hart.

19 MS. MALERMAN: This is Melissa. I can confirm.

20 MR. SHINKLE: Dave, are you on the call right now?

21 Okay. Well, Dave, if there's a problem, I want you to call

22 somebody. But I think we've had enough discussion. What's

23 the Board's pleasure on small letter a?

24 MS. MATUZAK: Member Matuzak makes a motion. I

25 move that the Board of State Canvassers to approve the


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1 addition of the alternative circuit board buck converter

2 manufactured by Texas Instruments as the preferred option on

3 the approved manufacturer's list and redesignate the Texas

4 Instrument buck converter currently in use as the alternate.

5 I further move that the Board approves the corrections of

6 clerical errors in the approved manufacturer's list

7 regarding class type screws and the USB cable and the

8 transposed digits in parts numbers in the bill of materials.

9 MR. SHINKLE: Is there support for that motion?


11 MR. SHINKLE: Okay. Any further discussion on the

12 motion? Seeing none, I'll ask the clerk call the roll.






18 MR. DAUNT: Yes.




22 MR. SHINKLE: Thank you very much.


24 MR. SHINKLE: Now for small letter b on the

25 agenda. Jonathan?


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1 MR. BRATER: Thank you, Chair Shinkle. This is a

2 proposed de minimis modification. This does involve the

3 Hart high speed equipment. So what we're talking about here

4 is a de minimis modification to the Verity cert- -- Hart

5 Verity System certified voting machine which will replace an

6 obsolete commercial-off-the-shelf monitor with the

7 equivalent newer version of that. So basically the high

8 speed system workstation has a computer that has a computer

9 monitor and the computer monitor that they use is now no

10 longer being manufactured by Hewlett-Packard, so they're

11 recommending to swap in a newer model of that from Hewlett-

12 Packard to be a modern equipment to the computer.

13 MR. SHINKLE: Okay. Any discussion from the

14 Board? Seeing none, a motion's in order.

15 MS. BRADSHAW: Chairman Shinkle, I'd like to make

16 a motion.

17 MR. SHINKLE: Sure, Jeannette. Go ahead.

18 MS. BRADSHAW: I move that the Board of State

19 Canvassers approve the addition of the alternate Verity

20 workstation monitor manufactured by Hewlett-Packard as the

21 preferred option on the approved manufacturer's list and

22 redesignate the Hewlett-Packard monitor currently in use as

23 the alternate.

24 MR. SHINKLE: Okay. Is there support?



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1 MR. SHINKLE: Okay. It's been moved and

2 supported. Any further discussion on the motion? Seeing

3 none, I'll ask the clerk to call the roll.


5 MR. SHINKLE: Yes.


7 MS. MATUZAK: Yes.


9 MR. DAUNT: Yes.




13 MR. SHINKLE: Thank you very much.


15 MR. SHINKLE: We're going on to de minimis section

16 little letter c. Jonathan?


18 Jonathan. We have our final de minimis proposed

19 modification. This involves the Election Systems &

20 Software, ES&S system rather than Hart. They are seeking

21 the Board's approval of a de minimis modification to a

22 battery that goes into the ExpressVote version 2.1

23 accessible voting device. So what we're talking about now

24 is the voter assist terminal which is a ballot measuring

25 device that votes with disabilities and other individuals


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1 may use to assist them in marking a ballot which is then put

2 into the tabulator. And so they are requesting the use of a

3 new type of CMOS battery which is a small disk battery that

4 goes into devices. They're common components in

5 electronics. And essentially the existing CMOS is reaching

6 end of life and they're trying to replace it with one that

7 lasts longer. I guess -- I'm sorry. I should correct that.

8 It's not that the previous one is at end of life, but the

9 new one is a better battery that lasts longer and will

10 reduce the need to replace these batteries going forward.

11 MR. SHINKLE: Okay. Discussion by the Board?

12 MS. BRADSHAW: Chairman Shinkle, if it's okay? I

13 just wanted to say thank you to Director Brater for giving

14 more explanation on these motions for these de minimis

15 changes, especially talking about what components these are

16 going into. So just more of a comment. Thank you.

17 MR. SHINKLE: Okay. Any further discussion?

18 Motion to --

19 MR. DAUNT: Chairman --

20 MR. SHINKLE: -- go ahead.

21 MR. DAUNT: -- Chairman Shinkle, I'll make a

22 motion. This is Member Daunt. I move that the Board of

23 State Canvassers approve the replacement of the CMOS battery

24 used with ES&S EVS 6050 voting system certified for use in

25 the state of Michigan.


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1 MS. MATUZAK: Member Matuzak supports.

2 MS. BRADSHAW: Oh, she beat me.

3 MR. SHINKLE: Moved by -- showing support by

4 Julie. Any further discussion on the motion? Seeing none,

5 I'll ask the clerk to call the roll.


7 MR. SHINKLE: Yes.


9 MS. MATUZAK: Yes.


11 MR. DAUNT: Yes.




15 MR. SHINKLE: Four ayes. We have approved the de

16 minimis changes.


18 MR. SHINKLE: The next item on the agenda is the

19 update on the processing of initiative petitions. Jonathan,

20 that's probably back to you.


22 Jonathan. So the -- currently pending are two initiated law

23 petitions. One is the Unlock Michigan petition which would

24 repeal the Emergency Powers of Governor Act, the other is

25 the Fair and Equal petition which would amend the


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1 Elliott-Larsen Civil Rights Act. So we are processing on

2 the Unlock petition currently with the Fair and Equal

3 petition pending.

4 Currently the status of the Unlock petition is

5 that we have completed the face review of all of the sheets

6 of the petition, meaning we have gone through and looked at

7 each sheet and eliminated from the sort of universe of

8 sheets all of those that are wholly invalid. Meaning, for

9 example, they didn't have a signed circulator statement or

10 some other aspect that would render all the signatures on

11 that sheet invalid. We are currently counting the

12 signatures. So we're about a quarter of the way through the

13 process of actually counting the signatures and we expect

14 that to be done by probably early next week. At that point

15 we would then -- we would then proceed to generate and draw

16 the random sample of signatures that will be reviewed to

17 determine, based on the formula used by the Board, whether

18 or not there are sufficient number of valid signatures on

19 the petition, and we expect to be able to release that

20 sample in a matter of weeks.

21 The other item I just want to flag on the Unlock

22 Petition -- yeah, and I should -- I should note also that in

23 the process of -- I should note also that in the process of

24 releasing that sample, we do also did number the sheets so

25 that the signatures can be found in the sample.


Page 17

1 We do have a letter which was addressed to the

2 Board that requested that we suspend counting signatures

3 because of a pending AG investigation. That letter has been

4 submitted to the Board and I believe that Chris Trebilcock

5 may wish to speak on that matter. I know he's requested to

6 speak to the Board. We are continuing to count signatures

7 and we will continue to count them until, you know, unless

8 the Attorney General or the Board of State Canvassers tells

9 us not to. So we're proceeding with that.

10 But then the other thing I just want to note is

11 that on the other petition, the petition that updates the

12 Elliott-Larsen Civil Rights Act, as we complete the counting

13 of the signature, just the sheer counting signatures on the

14 Unlock petition, we would then have staff start to do the

15 face review of the other petition because that will be a

16 different set of staff. I'm looking to both at the same

17 time. So that's basically the status of both of those

18 petitions.

19 MR. SHINKLE: Well, Jonathan, if I can ask, when

20 was the Fair and Equal petition filed with you?

21 MR. BRATER: I believe it was filed -- I mean, it

22 was definitely -- it was filed after the Unlock petition.

23 It was either in October or November of 2020. I'm not sure

24 of the exact date.

25 MR. SHINKLE: And the reason for this delay, can


Page 18

1 you explain it to us? Why we're sitting here at the end of

2 February talking about Fair and Equal not started yet?

3 MR. BRATER: Well, both petitions were filed in

4 and around a presidential election which is not the typical

5 period in which we see these petitions filed. So frankly we

6 were not devoting staff time to counting signatures on

7 either petition because we really were maxed out preparing

8 for the November 2020 election, and then we also did have a

9 particularly extensive post-election canvass and

10 post-election audit process which I'll discuss a little bit

11 later. So we've had a lot of staff that are doing those

12 processes. We typically do have our staff set up -- you

13 know, we have staff that do multiple different things and

14 they're set up on a certain calendar because we expect to

15 get petitions at a certain time of the year. Because of

16 when this fell, we basically were not able to allocate the

17 staff resources to start and to count these petitions until

18 we got through the November 2020 cycle. But now that we

19 are, we're moving much more quickly and, again, I expect

20 them both -- you know, the Unlock should be, you know, a

21 matter of weeks and then the Fair and Equal some number of

22 weeks after that we should be able to have a sample of that

23 for both.

24 MR. SHINKLE: So what I'm hearing you say,

25 Jonathan, that these delays are not caused due to a budget


Page 19

1 problem?

2 MR. BRATER: Well, I mean, I think that it is an

3 issue of staff resources. So, I mean, if we had an infinite

4 number of people working, we could have people working on

5 multiple things at once. But with that -- I mean, with the

6 staff that we have, the way we're set up now, we don't have

7 the resources to count those signatures and manage the

8 presidential election at the same time.

9 MR. SHINKLE: Other questions of Jonathan? Okay.

10 So you want to talk now about the post-election audit? Did

11 you say you were going to bring that up?

12 MR. BRATER: I will talk about that, Chair

13 Shinkle, during the other business, but I believe we did

14 have an individual who wanted to speak to the Board on the

15 matter of the petitions.


17 MR. BRATER: If Chris Trebilcock is on?

18 MR. SHINKLE: Do I know if somebody wants to speak

19 as I sit here and look at my monitor?

20 MR. BRATER: I think that's my job to let you know

21 that, Chair Shinkle. I was not clear about that so I

22 apologize.


24 MR. BRATER: But I do believe (inaudible).

25 MR. SHINKLE: Do you know who it is that wants to


Page 20

1 speak? Do we have (inaudible) --

2 MR. CHRIS TREBILCOCK: Yeah; yes. Good afternoon,

3 Board of Canvassers and Chairman Shinkle. It's your good

4 friend Chris Trebilcock back to discuss some election issues

5 if you don't mind.

6 MR. SHINKLE: Go ahead, Chris. The floor is

7 yours.

8 CHRIS TREBILCOCK

9 MR. CHRIS TREBILCOCK: Thank you, sir. And

10 welcome Board Member Daunt. It's nice to meet you virtually

11 at least.

12 The reason for our letter and our request is that

13 there are serious allegations and evidence of fraud being

14 investigated involving the process to collect signatures in

15 the Unlock Michigan petition. Election integrity and fraud

16 has been at the forefront of our public discussion the last

17 six months. Indeed the House of Representatives held

18 hearings on election fraud and it appears that if they were

19 looking for fraud, they did not look any further than the

20 Unlock Michigan petition drive. It is currently under

21 investigation by the Attorney General's office. We would

22 suggest and strongly recommend in a manner consistent with

23 this Board's statutory authority found at MCL 168.476(2) to

24 adjourn and suspend further review of the Unlock Michigan

25 petition signatures pending the outcome of the Attorney


Page 21

1 General's investigation. There is absolutely no prejudice

2 by suspending the review at this time to Unlock Michigan.

3 Indeed, the law does not require the Board of Canvassers to

4 canvass and certify the Unlock Michigan petition until

5 sometime in July 2022. There are 17 months to allow the

6 Attorney General to complete its investigation, to then

7 allow the Bureau of Elections staff to conduct its review

8 while if we rush through this and if the Board rushes

9 through it, included in the signature count very well may be

10 fraudulently, illegally obtained signatures in violation of

11 law. And since there is no prejudice to Unlock Michigan, we

12 would strongly urge and request that this Board of

13 Canvassers take action to suspend the petition count.

14 What is more is even if the AG completes her

15 investigation, I would remind the Board that it has

16 independent statutory obligation and authority to complete

17 its own investigation. And this Board at such time should

18 take the steps to ensure that every signature submitted by

19 Unlock Michigan when there is evidence of fraud being used,

20 in fact Unlock Michigan admitted and segregated part of its

21 signatures because of the fraudulent activities, that take

22 an independent review of all those signatures. Use your

23 subpoena power. Pull in the circulators who submitted

24 signatures to verify that those signatures are valid. If

25 this Board is here to ensure the integrity of our elections,


Page 22

1 this calls for that, those steps to be taken.

2 So with that, we would request that the Board

3 direct the Bureau of Elections to suspend the review of the

4 Unlock petition signatures, allow them to focus on Fair and

5 Equal Michigan. As you heard Director Brater state, you

6 know, there's limited staff resources. Why waste public

7 resources reviewing signatures that were obtained by fraud?

8 MR. SHINKLE: Chris, let me ask you a question.

9 MS. BRADSHAW: Chairman Shinkle? Chairman

10 Shinkle?

11 MR. SHINKLE: When did you file this complaint

12 with the Attorney General?

13 MS. BRADSHAW: Chairman Shinkle? I wanted to make

14 you aware that Vice Chair Matuzak got dropped from our

15 meeting.

16 MR. SHINKLE: Oh.

17 MS. BRADSHAW: I don't --

18 MS. MATUZAK: I'm back now.

19 MS. BRADSHAW: Okay. Okay. I just wanted to make

20 sure --

21 MS. MATUZAK: I got dropped and now I'm back.

22 Sorry.

23 MR. SHINKLE: Chris, when did you file the

24 complaint with the AG's office?

25 MR. CHRIS TREBILCOCK: I didn't file a complaint


Page 23

1 with the AG's office, Mr. Shinkle.

2 MR. SHINKLE: Do you know when one was filed?

3 MR. CHRIS TREBILCOCK: I do not know when one was

4 filed.

5 MR. SHINKLE: Okay. You know, obviously anybody

6 can file a complaint at any time and because we got several

7 weeks here before the sample is even going to be drawn, I

8 personally don't see a reason for any delay on our part.

9 Any other member wish to comment on this?

10 MS. MATUZAK: This is Member Matuzak. I've been

11 on the Board now a long time as have you, Norm, and I don't

12 know how many times we have gotten our hands slapped for

13 talking about fraud on petitions and been told directly that

14 we have no ability to look at fraud, that it's a buyer

15 beware situation and that fraud complaints have to be taken

16 to the local prosecutor or the Attorney General. This is a

17 case where the Attorney General is actually looking at fraud

18 so I am very encouraged by that. I would like to see us try

19 to figure out a way to deal with fraud in petition

20 gathering, but we've always been told we couldn't sort of do

21 that. So I am heartened that the Attorney General is

22 looking at it.

23 The petitioners themselves don't have to be -- not

24 going to be on the ballot until November 2022. That being

25 said, I also want the petitions to move forward and in most


Page 24

1 efficient way as possible. So I guess I'm a little -- I'm a

2 little mixed about this. I don't see a problem with delay

3 because they're not going to be on the ballot for a long

4 time yet and I would love to actually have a look at fraud

5 and see what we find out, what the Attorney General is going

6 to find out. But I'm also not clear how the Board can look

7 and make a judgment on signatures -- and maybe Mr.

8 Trebilcock can address this -- how the Board has the ability

9 to look at signatures before they're even presented to us to

10 make a decision about that. So those are my comments in

11 general.

12 MR. SHINKLE: Well, Julie, I think the Unlock

13 petition is an initiative, so that means that once the

14 petition is approved it goes back to the legislature. We're

15 not going to be waiting probably until November of 2022.

16 That's one thing. There is a substantive cause for delaying

17 this. I personally think we can just ask the Attorney

18 General's office, maybe Erik can comment on it, where we are

19 right now with this complaint. Erik, do you know anything

20 about it?

21 MS. MEINGAST: Norm, it's Heather.

22 MR. SHINKLE: Heather. I don't see your picture

23 there. Go ahead.

24 MS. MEINGAST: Sorry.

25 MR. SHINKLE: No, I see it now. Hi, Heather.


Page 25

1 MS. MEINGAST: I had some problems before but I'm

2 here. So what I can tell you is -- so the hard part here is

3 that there is a conflict law within the Department of

4 Attorney General on this investigation between Erik and

5 myself and all of you and the team that's doing the

6 investigation. So I do not have a lot of personal knowledge

7 of what is going on with the investigation so I can't give

8 really any more of an update on that. I don't really know

9 that much more than you.

10 MR. SHINKLE: Do you know when it started?

11 MS. MEINGAST: You know, I think how it started

12 was we essentially got a complaint through -- you know, to

13 our office to the AG from folks who were concerned about it

14 and so we sort of took it from a public complaint aspect and

15 that was way, probably back in the summer; last summer or

16 early fall. So, you know, again, not, you know, having

17 there be a firewall and not -- I can't recall everything,

18 but it's been certainly pending for awhile. And my

19 expectation would be from other investigations that have

20 happened in our office that that team, or that part of the

21 office will announce at some point the results of the

22 investigation and then we'll -- you know, we'll know about

23 that at that time and may have a little bit of difference

24 before that happens. But right now that's kind of all I can

25 report as far as the status of the investigation.


Page 26

1 MR. SHINKLE: Well, Heather, is there a way for us

2 just to get an update from the team that's doing the

3 investigation as their status of when they might be

4 concluded?

5 MS. MEINGAST: Yes. I could ask -- I could, you

6 know, reach out to that team and see if there's information

7 that I can report back to the Board as far as a time frame.


9 MR. CHRIS TREBILCOCK: Member -- Chairman Shinkle,

10 this is Chris Trebilcock. If I could address a point, a

11 question you just raised and address that issue raised by

12 Member Matuzak?

13 MR. SHINKLE: Go ahead.

14 MR. CHRIS TREBILCOCK: First, the statutory

15 deadline for this Board to complete the canvass of

16 initiative petition is 100 days prior to the November

17 general election and that's MCL 168.474(a) and .480. So the

18 canvass does not have to be completed until July of 2022.

19 So you're talking 17 months from now, Member Shinkle, before

20 this Board of Canvassers has to do anything. You're legally

21 required to do that.

22 MR. SHINKLE: Chris, give me a break here, Chris.

23 Once this petition is approved, it goes back to the

24 legislature. They could act within a week or two. They're

25 not going to wait until November of 2022. Let's get


Page 27

1 serious. They could wait until November --

2 MR. CHRIS TREBILCOCK: Member Shinkle, I'm not

3 saying that that is what has happened. I'm saying this

4 Board of Canvassers does not have a legal duty to take

5 action until the 100th day prior and that's the deadline

6 you're shooting against. And so what I am saying is that

7 allowing -- suspending the review and prioritizing the

8 resources that the Secretary of State and the Bureau of

9 Elections has on a petition drive such as Fair and Equal

10 Michigan that doesn't -- isn't subject of an Attorney

11 General criminal investigation, to allow that to proceed

12 first before you reach Unlock Michigan and allow the

13 Attorney General to proceed with their investigation, and by

14 the time Board's, the Bureau of Elections is done with Fair

15 and Equal Michigan, maybe you have a result from the

16 Attorney General's office and you can do with it as you may.

17 MR. SHINKLE: Yeah, Chris, maybe we will, maybe we

18 won't. The thing is --

19 MR. CHRIS TREBILCOCK: Yeah, I understand --

20 MR. SHINKLE: -- I personally believe that we

21 should continue processing the petitions, find out from the

22 Attorney General's office the status of this investigation

23 and we'll make a decision at that point. That's what I

24 personally think. Are there any other Board members that

25 want to comment?


Page 28


2 If I just may for a moment kind of piggyback on what you

3 said? And Mr. Trebilcock, thank you for being here and

4 discussing this. You know, I -- we are trying to nail down

5 when this complaint was filed. And, you know, if the

6 petitions were filed with the Board back in, let's say, the

7 fall of last year, that complaint surely followed right

8 after so it'd have been a number of months where there's

9 already been kind of an unexpected delay as Director Brater

10 laid out because of the focus on the election and the

11 post-election work that was necessary, and I think further

12 delay is just an attempt to continue muddying the waters.

13 There's plenty of time while this is continuing to be

14 reviewed for this investigation to continue and I disagree

15 with the idea of incentivizing groups to file kind of

16 frivolous complaints to just delay a process. You know,

17 these folks that signed this petition did so with the

18 intention of quick action. I think it's been known that the

19 legislature intends to act quickly on this once they receive

20 it. And so I view this as simply a delay tactic that isn't

21 necessary and that incentivizes, you know, future bad

22 behavior from folks who wish to stop something simply

23 because they disagree with it.

24 MR. SHINKLE: Thank you. Any --

25 MR. CHRIS TREBILCOCK: If I can respond to --


Page 29

1 MR. SHINKLE: -- any other Board members -- no,

2 Chris, you've had enough for now. Any other Board members

3 that would like to speak on this?

4 MS. BRADSHAW: Chairman Shinkle, I guess this goes

5 back. I mean, I'm thinking how long I know myself and

6 Member Matuzak and yourself have been on the Board and maybe

7 this is something -- I have -- we, as a body, this Board,

8 have ever entertained or made these kind of suspensions. I

9 know that they are set in statute that we could or can, and

10 I am encouraged that there is a process here that, you know,

11 we've always -- and I mirror what Member Matuzak said, but

12 my curiosity has been piqued of if this Board has ever made

13 or has entertained these kind of motions?

14 MR. SHINKLE: Yeah. Jeannette, right now I think

15 we've been in a suspension since October between you and me.

16 But I like to -- well, Heather, do you know if we've ever

17 suspended processing a petition after we've had it for four

18 months?

19 MS. MEINGAST: I'm not aware of another

20 circumstance where we have halted or suspended the canvass

21 process.

22 MR. SHINKLE: Okay. I think --

23 MR. CHRIS TREBILCOCK: How many others have you

24 had that are under AG investigation?

25 MR. SHINKLE: Well, she doesn't remember ever


Page 30

1 doing this before. Let's -- let's ask Heather and Erik to

2 get us back a report on the status of this investigation and

3 in the meantime let's get the petition done. We can always

4 stop it before we approve it. So we have time here. This

5 investigation has --

6 MR. CHRIS TREBILCOCK: Chairman Shinkle? Chairman

7 Shinkle?

8 MR. SHINKLE: -- it's been undergoing for months.

9 They should give us an idea when it's going to be completed.

10 MR. CHRIS TREBILCOCK: Chairman Shinkle, if I

11 could just state? You know, one thing that I think we have

12 to be mindful of is that the petition sheets and the

13 signatures that Bureau staff are handling, that's evidence

14 in a criminal investigation right now. And if that is

15 manipulated or lost or destroyed in some way, that's

16 interfering with the AG. And I just see there's no

17 prejudice to Unlock Michigan if it's suspended for even a

18 month, even if you just say let's adjourn --

19 MR. SHINKLE: Okay, Chris. Chris --

20 MR. CHRIS TREBILCOCK: -- (inaudible) let's see

21 what we get from the AG and go forward. There's significant

22 (inaudible) --

23 MR. SHINKLE: Chris, let's move on here. If the

24 Attorney General wants us not to touch the petitions, we'd

25 hear directly from the Attorney General. We don't need to


Page 31

1 hear it from you. So I want to move on here. We're going

2 to get a report back from the Attorney General on the status

3 of the investigation. Are there any other Board members who

4 would like to comment on this? Seeing none, let's move on.

5 Jonathan, you ready for that audit report?

6 MR. BRATER: Yes, Chair Shinkle. This is

7 Jonathan. So we're now moving on to the other business.

8 There's two items that I wanted to raise. One of them is a

9 resolution for former Member Van Langevelde, but before that

10 I wanted to give the Board an update on the post-election

11 audit process and where we are with that.

12 We are closing out, very near the end of the road

13 on what is by quite a margin I think the most extensive

14 post-election audit process that we've been involved in, in

15 the state of Michigan. We did have the roughly 200 audits

16 that were conducted of random precincts. Those were done

17 primarily by county clerks as is usually the case, but the

18 Bureau of Elections also conducted a small number of those

19 precinct audits as well. In addition to that, we conducted

20 a full hand tally of the votes for president in Antrim

21 County. So that was a -- not a recount, but similar to a

22 recount in the fact that we hand counted the ballots there

23 for president. That process was completed and we determined

24 that the vote totals were very similar to the tabulator

25 totals with only a handful of differences which are similar


Page 32

1 to what we'd usually see in a hand count.

2 We also have wrapped up the statewide risk audit

3 exercise in which we randomly sample 18,000 ballots pulled

4 from jurisdictions all across the state to determine the

5 vote for president. We're in the process of writing up the

6 results in more detail, but broadly speaking the percentages

7 that we saw for president from that random sample were in

8 line with the tabulated totals.

9 And then finally, the piece that we haven't quite

10 finished yet are the audits of absent voting counting

11 boards. This is the first time that the state has done

12 this. But we looked at absent voter counting boards in

13 Sterling Heights, Livonia, Grand Rapids, and Detroit. Those

14 are four larger cities that all had a substantial number of

15 absent voter counting boards that were out of balance. We

16 have completed the three smaller cities. We are just in the

17 final stages of wrapping up with Detroit. And as soon as

18 that is over, we will write up the results and I can give

19 the Board a full report on what we found. But I'll just say

20 at this point, broadly speaking, we haven't found any issues

21 to suggest that there were any problems with the tabulation

22 equipment. We have found human error on election day which

23 is typically what we see with these out of balance

24 precincts. A couple of the issue -- we have found actually

25 that with more time a significant number of these counting


Page 33

1 boards actually were able to be balanced or were able to be

2 explained upon further review. And then we've also

3 identified a couple of issues that we're going to focus on

4 for training and also for canvassing, how to deal with some

5 of the issues that seem to have been causing some of the

6 problems including ballot duplication, issues with sometimes

7 ballots being put in the wrong container after they're

8 tabulated, and then also an issue of better documentation of

9 cases in which an absent voter ballot envelope may be

10 missing a ballot or may include two ballots.

11 So those are some of the things we're looking at.

12 We'll have a full report and writeup for you as soon as

13 that's done, but we're in the closing stages of the process.

14 MR. SHINKLE: Thank you, Jonathan. Antrim County

15 is internationally known now with the first results coming

16 in so lopsidedly backwards. Jonathan, at this point in time

17 now that we've had a chance to review what happened, I mean,

18 I've heard different reasons, that software wasn't changed

19 appropriately by the county clerk, all this other stuff.

20 What happened in Antrim County in your opinion to have those

21 numbers so wrong at the beginning?

22 MR. BRATER: Yes. So the issue had to do with the

23 way that the tabulators communicated with the software that

24 reports the unofficial results. So in order to get people

25 results on election night more quickly, we have software


Page 34

1 that will give an unofficial tally of the votes. The

2 official tally is kept on paper, from paper ballots and is

3 printed out on paper tape from the tabulators. So what

4 occurred here was that because of some updates that were

5 needed to down ballot races, there were some contents of

6 ballots down the ballot in a couple of the precincts. The

7 software had to be updated, the chips had to be updated to

8 go into the machines so that the ballots would basically be

9 read properly for every race on the ballot including ones

10 that were previously missing. And so when those were

11 updated, because -- so essentially the two townships that

12 were initially in question, the machines had the software

13 that's supposed to go into the tabulators properly updated.

14 So those two townships, the ballots actually were

15 counted properly on the tabulator and the paper totals say

16 that came on the tabulator actually had the right total for

17 all the races in those two townships. However, because the

18 programming was changed, the clerk -- what the clerk needed

19 to do was actually update all the tabulators in the county,

20 not just the two where there were changes. And so when that

21 update was not made to those other tabulator chips, when the

22 data came back into the unofficial results reporting

23 software, because there were two different basically

24 databases on there, the results for the unofficially

25 reporting got scrambled. So even though the tabulators


Page 35

1 counted all the ballots properly for president, when they

2 went into the system that tells you unofficially who won,

3 basically the wrong totals were being assigned to the wrong

4 candidate and that's why the numbers were so out of whack on

5 election night. So that is something that was identified

6 fairly quickly. It would have -- you know, even if it

7 hadn't been caught soon after election night, it would have

8 been caught during the canvass because during the canvass,

9 the canvassers always review the paper totals tapes from the

10 machines. However, because all the software was not

11 properly updated prior to that, that's why you saw that skew

12 in the unofficial results reporting.

13 MR. SHINKLE: So Jonathan, did any other county

14 have this problem?

15 MR. BRATER: This specific problem, no. I mean,

16 we do always see a few different errors on election night

17 reporting. Sometimes you'll see a situation in which the --

18 not all of the results were actually transmitted properly on

19 election night so that the results that were reported may be

20 missing certain tabulators totals. You might also sometimes

21 see an unofficial reporting, that accidentally totals get

22 reported twice for purpose of the unofficial reporting. So

23 we did see that in a few other places around the state. You

24 know, typically there you have more of like a double, you

25 know, sort of a double report of what's missing as opposed


Page 36

1 to the numbers getting scrambled up. But this was the only

2 case in the state of this specific problem although it was

3 only -- it was one of a few different unofficial reports --

4 results for reporting errors that occurred.

5 MR. SHINKLE: Okay. And just, my last question

6 for you, Jonathan. When do you think the audit will be

7 completed?

8 MR. BRATER: We expect to wrap up as soon as this

9 week, and then it'll take us a bit of time to write it up,

10 but we're pretty much in the final stages there.

11 MR. SHINKLE: Okay. Thank you. Any other

12 questions?


14 And just regarding the Antrim issue, you know, I think Craig

15 Mauger with the Detroit News had a very good piece on this

16 that was hit February 22nd, and goes through kind of what

17 Director Brater has laid out in writing. And a little

18 easier to follow in writing than listening to verbally. And

19 so anybody that's interested in kind of following that, I

20 would recommend taking a look at that as well.

21 MS. BRADSHAW: And this is Member Bradshaw. That

22 actually is under a pay wall, so if you do go looking for

23 that, you will have to pay for that story. I read that one.

24 Just a couple questions I have for Director Brater. And

25 they do -- they're not really specifically on the audit,


Page 37

1 Chairman Shinkle, but I know that there is legislation

2 talking about changing the rules in the state of Michigan

3 when it comes to recounts and whether or not that a precinct

4 that's out of balance, of whether or not you can recount

5 that out of balance precinct. And I'm curious of how the

6 Bureau is looking at that legislature.

7 MR. BRATER: I think in general the Bureau's view

8 is that we would like to see more precincts be able to be

9 recountable. So I think the rules we do have are quite

10 strict, you know, basically unless the precinct is in

11 balance or an explanation can be found, or if after you open

12 up the container you can see the number of ballots match the

13 number in the tabulated total, you basically can't recount

14 that. That's a very strict rule. There's other states that

15 don't have rules that strict. And I think that we would

16 like to see a little bit more flexibility in allowing more

17 precincts to be able to be recounted. Obviously we want to

18 see every precinct be in balance to begin with, but even if

19 it's not, we'd like to see more of them to be recountable.

20 MR. SHINKLE: Well, I just want to point out to

21 Jeannette and Julie we've been trying to get the legislature

22 to tweak the recall laws relative to how we're interfacing

23 with that --

24 MS. BRADSHAW: Yeah.

25 MR. SHINKLE: -- because they're quite onerous to


Page 38

1 us. They've got to call us within, I don't know, 24 hours,

2 36 hours and the same person keeps coming back with the same

3 petition every couple weeks. Something has to be done to

4 make this a little more appropriate I think for recalling

5 somebody. That recall law was put together, I think, in the

6 last hour of 2012 and it should be revisited for some of

7 those restrictions that we have on us, when we have to meet

8 and how soon we have to schedule a meeting type of thing.

9 So if we are -- you'll be amending that Act, we should be

10 aware of our suggestions that we have verbalized many, many

11 times in the past.

12 MS. BRADSHAW: I was going to add that, Chairman

13 Shinkle, but I didn't want I didn't want to, you know, add

14 more to what my other comment was. But, yeah, take in

15 consideration all those things that we've been asking for,

16 for a number of years.

17 MR. SHINKLE: Yeah. Anybody else, comments on the

18 audit? Okay. We're under other business. Is there any

19 other business to come before this Board?

20 MR. BRATER: Chair Shinkle, this is Jonathan. The

21 other item that I was going to raise is we do have a draft

22 resolution, a special tribute from the Michigan Board of

23 State Canvassers to Aaron Van Langevelde. I can read this

24 off if you would like for the Board.

25 MR. SHINKLE: Sure. Go ahead.


Page 39

1 MR. BRATER: So,

2 "Whereas, Aaron Van Langevelde was appointed by

3 Governor Rick Snyder to represent the Republican Party

4 on the Michigan Board of State Canvassers on December

5 18th, 2018; and

6 Whereas, Mr. Van Langevelde served as the

7 Vice-Chair of the Board from February 25th, 2019

8 through January 31st, 2021; and

9 Whereas, Mr. Van Langevelde faithfully performed

10 his duties as a dedicated public servant and valued

11 colleague; and

12 Whereas, Mr. Van Langevelde's numerous

13 contributions include fairly applying Michigan's

14 election laws governing ballot access, petition

15 circulation, canvassing, and recounts;

16 Whereas, Mr. Van Langevelde's attentive oversight

17 of voting systems helped increase public confidence in

18 the security and integrity of Michigan's election

19 (sic); now, therefore, be it

20 Resolved, by the Michigan Board of State

21 Canvassers, that we commend and congratulate Mr. Van

22 Langevelde for his contributions and leadership while

23 serving on the Board; and be it further

24 Resolved, that this resolution be transmitted to

25 Mr. Van Langevelde as evidence of our highest esteem


Page 40

1 and appreciation for his public service."


3 MS. MATUZAK: Member Matuzak moves.

4 MS. BRADSHAW: I support, Member Bradshaw.

5 MR. SHINKLE: The motion and support for

6 resolution honoring Aaron Van Langevelde. I also support

7 that. Aaron was a great member for me. He was always

8 thoughtful and he thought of things that I didn't. So I

9 think his IQ might be higher than mine.

10 MS. BRADSHAW: I'd like to -- I'd like move to --

11 Member Shinkle, I'd also like to state that Aaron's

12 professionalism and his mannerisms on this Board were

13 amazing and he was really great to work with. Not -- and I

14 just want to note that in the transcript and our record,

15 so --

16 MS. MATUZAK: Uh-huh (affirmative).

17 MR. SHINKLE: Yeah. Okay. Motion's on the floor

18 to adopt a resolution. Any further discussion? Seeing

19 none, all those in favor? Well, let's have a roll call

20 vote. We can do that.







Page 41

1 MR. DAUNT: Yes.



4 MS. MALERMAN: Mr. Chair, there are four aye

5 votes.


7 MR. SHINKLE: And I'm not sure if we can somehow

8 get our signatures on the resolution. That'd be nice if we

9 could. But when are we going to get together in person?

10 Who knows? Any bets?

11 MR. BRATER: I think we will -- Melissa -- and if

12 I'm not -- maybe we'll plan to circulate this to the members

13 for them to sign; is that correct?

14 MR. DAUNT: Good.

15 MS. MALERMAN: Yes.


17 MR. BRATER: Yeah.

18 MR. SHINKLE: Good.

19 MS. MATUZAK: Tony, welcome to the Board. You

20 have a lot to live up to as we just said. You can prove

21 that your IQ is smarter than the rest of us. We always love

22 different views on the Board of different issues. It's

23 great to have another person. So welcome.

24 MR. DAUNT: Thank you. Thank you. I'm thrilled

25 to be joining and look forward to contributing and I can


Page 42

1 state without equivocation I certainly have a higher IQ than

2 Norm.

3 MR. SHINKLE: I don't know.

4 MS. BRADSHAW: I think we've now started very

5 well. I (inaudible) --

6 MR. SHINKLE: And Jonathan, if you can make sure

7 this resolution ends up in a frame that costs more than

8 $1.59, that'd be good. Okay? Get something decent. I'll

9 help -- I'll chip in myself if needed. Okay?

10 MR. BRATER: I understand.

11 MR. SHINKLE: Okay. Any other business to come

12 before this Board?

13 MS. MATUZAK: This is Member Matuzak. Just one

14 thing, it's not really business before the Board exactly.

15 It is a mild complaint about how soon we receive our meeting

16 materials.


18 MS. MATUZAK: We've talked about this repeatedly.

19 Two days would be great as opposed to receiving it the night

20 before when I may not look at my e-mail until the morning.

21 I understand there are last minute things that come up like

22 the new political party that (inaudible) their stuff. But I

23 really would like to receive my meeting materials more than

24 the night before the meeting. Thank you.

25 MR. SHINKLE: Yeah. We've talked about this many


Page 43

1 times with Lydia, Melissa. I mean, I think we actually

2 established a policy of two business days before our meeting

3 we want to see the reading materials, and often they come

4 overnight and that type of thing. But what happened on this

5 meeting even though we didn't have a lot of substantive

6 stuff to think about? It was just the last minute. We got

7 to stop that.

8 MR. BRATER: Yes. So I -- this is Jonathan. I

9 apologize. This is not the timeline that we intend to get

10 you things and I completely agree that you need more time.

11 We just got a teaching layer. I'm sorry. We did have a

12 couple staff members out, but we still should have figured

13 out a way to get it to you sooner. So I -- we will -- we

14 will do a better job next time.


16 MR. SHINKLE: Let's go 48 hours before the meeting

17 is a better job. That's a definition of "better job."

18 Okay?

19 MS. BRADSHAW: Chairman Shinkle, can we get an

20 update on if there is any pending litigation?


22 MS. MATUZAK: Who's doing this now?

23 MR. SHINKLE: Erik?

24 MS. MEINGAST: Let's see. What -- I guess it's

25 just on the --


Page 44

1 MR. SHINKLE: She doesn't have a prepared report.

2 MS. MEINGAST: I know. Well, you know, I had all

3 sorts of computer problems which was making me think I might

4 not even be here. Usually not -- we have only a few, a

5 smattering of cases against the Board that remain open.

6 There is nothing of particular significance other than if

7 the Board recalls it was a defendant in the King et al case

8 versus Whitmer case, which was the federal case with Judge

9 Parker that denied the TRO. That's just up to various

10 claims against, you know, the results of the elections in

11 Detroit and it wanted to, you know, halt certification of

12 all the electors and so forth. And so that is -- has

13 actually been voluntarily dismissed. It kind of went to the

14 6th Circuit, nothing happened there. They did a petition

15 for certiorari to the U.S. Supreme Court, that was denied.

16 And right now back in the District Court there are a couple

17 of motions for sanctions pending. Member Daunt, this was

18 before you joined, but I had told the Board about, you know,

19 wanting to be part of the sanctions motion and that was not

20 something that we had sort of heard enough support back

21 from. So that motion was just filed in the name of Governor

22 Whitmer and Secretary Benson. So the Board's not part of

23 that motion. Technically the case has been dismissed, but

24 there's just kind of a few lagging things until that's fully

25 sort of closed out and resolved. And that's really it at


Page 45

1 the moment.

2 MR. SHINKLE: Any other business? Any other

3 questions? And we don't have motions to adjourn, I just

4 declare it so I'm ready to do it. I'm using my phone. We

5 are adjourned.

6 (Proceedings concluded at 2:57 p.m.)

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