Mich. judge axes 'presumption of validity' rule for absentee ballot signature verification

Lansing — A Court of Claims judge on Wednesday ruled absentee ballot signature verification guidelines issued to Michigan clerks cannot contain language instructing them to presume the validity of a signature.

But Judge Christopher Yates, in the same opinion, upheld other parts of the rules issued by Secretary of State Jocelyn Benson that address potential explanations for why a signature might not match, such as age, disability or the quality of a digitized signature.

The litigation filed by the Republican National Committee and Michigan Republican Party against Benson centered around guidance Benson issued to clerks in December regarding how they are to check the signature on absentee ballot applications and ballot envelopes against the signature of the voter in the state’s qualified voter file.

Part of Benson’s guidance issued in December instructed clerks to start the review with a presumption of the validity of the signature, followed by several other measures that should be used to match the signature to a registered voter.

Yates, an appointee of Democratic Gov. Gretchen Whitmer, agreed with the RNC that the presumption language should be excised from the rules since the state constitution requires an absentee ballot envelope signature to be compared against the one in state records.

“Our constitution calls for a signature comparison without making a presumption for or against validity,” Yates wrote. “Similarly, the language in Michigan statutes precludes the application of a presumption of validity.”

Yates’ decision marks the second time a Michigan court has struck down guidance related to the presumed validity of signatures; in 2021, the Court of Claims ruled such guidance had not gone through the proper rulemaking process.

Michigan Republican Party Chairman Pete Hoekstra, in a statement Thursday, said Benson "cannot pick and choose which election laws to enforce and which to ignore."

"Michigan is crucial to the pathway to victory in November," Hoekstra said. "We must protect and enforce all our election laws to maintain confidence in our system."

Benson's office, in a statement Thursday, noted the judge reaffirmed the office's authority to implement signature verification rules to allow for consistency across Michigan's more than 1,500 independent clerks.

"Michigan's clerks have and will continue to carefully review every ballot signature to ensure they agree sufficiently with the signature on file before accepting any ballot," said Angela Benander, a spokeswoman for Benson's office.

Benson’s office had argued the guidance didn’t mean all signatures should be determined to be valid without further review.

The guidance went on to the say that clerks "must review all signatures and should determine that a signature does not agree sufficiently on file only after completing review of the signature as described in these instructions and in Michigan election law.”

"Clerks should consider a voter’s signature questionable only if it differs in significant and obvious respects from the signature on file," the guidance added. "Slight dissimilarities should be resolved in favor of the voter."

A separate part of the rules issued by Benson and challenged by the RNC was upheld in Yates' Wednesday decision.

The rules require clerks, when assessing differences in signatures, to consider possible explanations such as a shaking hand because of health or age issues, an individual using a nickname or initials, the possibility that someone’s signature may have changed over time or the potential that the individual was writing on a soft or bumpy surface.

Yates noted state law requires a “generous approach” to verifying absentee signatures and nothing in the rule “puts a thumb on the scales in the analysis of a voter’s signature.”

“Instead, Rule 4 modestly offers real-world explanations consistent with the generous approach to signature verification that our Legislature has prescribed,” Yates wrote.

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Staff writer Craig Mauger contributed.