Opinion: Protect Michigan's election process integrity

Almost a month after Election Day, the matter of who should get Michigan’s 16 Electoral College votes remains hotly contested, though they will likely go to Joe Biden.

The Trump campaign claims its observers weren’t given “meaningful access” to the ballot tabulation process. There are also claims about fraud and other irregularities in several states, as well as allegations in Michigan that a software glitch temporarily tabulated nearly 6,000 votes for Joe Biden that had, in fact, been cast for President Donald Trump.

The Michigan Legislature convened a rare Saturday oversight committee joint session to review the allegations and to discuss how the state’s system might be improved. State senators also asked Michigan’s secretary of state to investigate and report findings.

That’s a good start.

As recent history shows, elections can turn on razor-thin margins. Ensuring the integrity of the process is paramount. Here are some ways Michigan and other states can better protect the integrity of the electoral process. 

► Set clear rules and don’t let anyone change them close to an election.

The U.S. Constitution vests state legislatures with primary responsibility for setting the rules for election procedures and processes in federal elections. Justice Neil Gorsuch forcefully reiterated this point recently saying that “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”  

Yet this year, only weeks before Election Day, the Michigan Court of Appeals had to remind a Michigan trial judge of this fact when he incorrectly required the state to accept mail-in ballots up to 14 days after Election Day and barred the state from enforcing its laws relating to who, other than the voter, can handle and deliver his or her ballot. The appellate court made clear that “designing adjustments to our election integrity laws is the responsibility of our elected policymakers, not the judiciary.”

► Implement basic security procedures such as requiring photo ID.

Americans have to show photo ID for many everyday activities: from banking, to picking up prescriptions, to applying for government benefits.

In 2005, a bipartisan commission chaired by former-President Jimmy Carter and former-Secretary of State James Baker urged states to adopt the commonsense safeguard, and 36 states currently request or require some form of ID to vote. Yet the debate over whether photo ID should be required to vote rages on.

Michigan requests, but does not require, that voters present some form of ID to cast a ballot. Those without an ID can instead sign an affidavit at their polling location before casting their vote.

The big security gap here, however, is the lack of an ID requirement for absentee ballots. State legislators should revisit this policy and implement a photo ID requirement for both in-person and absentee voting, just as states such as Kansas and Alabama have done. 

Citizens should be able to get the photo ID necessary to vote easily and cheaply — obviating the need for the less secure affidavit process. States such as Georgia and Alabama make IDs for voting available at no cost.  

► Ensure that voter rolls are accurate and up-to-date.

The need for accurate, up-to-date voter registration rolls became even more apparent this year as many states greatly increased their use of vote-by-mail procedures. 

States should join voter registration crosscheck programs to identify voters registered in multiple states. And states should compare voter rolls with other government records to identify any ineligible voters such as non-citizens or convicted felons. States should utilize Department of Homeland Security and other databases to verify citizenship, residence and other state eligibility requirements.

Only 11 months before the 2020 election, the Public Interest Legal Foundation filed suit against Detroit officials alleging that they failed to maintain their voter registration rolls as required by law. Analysis by PILF showed more than 2,100 individuals active on the voter rolls who were listed in the Social Security Death Index with corresponding death records and an obituary. One active voter even had a birth date in 1823!

The lawsuit was ultimately dismissed after election officials agreed to correct the flagged problems, but the question remains: Why did it take a federal lawsuit to get officials to do their jobs?

Detroit isn’t the only problematic jurisdiction in Michigan. An earlier PILF study showed that “noncitizens are registering to vote in astounding numbers in Michigan and that several jurisdictions have thoroughly obsolete and inaccurate rolls.” How many of those who are ineligible or registered more than once cast ballots or multiple ballots in this election? 

The Michigan Legislature must take steps to clean up the state’s voter registration rolls.

► Encourage in-person voting.

According to the 2005 Carter-Baker commission, absentee ballots “remain the largest source of potential voter fraud.”  Moreover, those who vote by mail are disenfranchised at a higher rate than those who vote in person. Consider the New York primary earlier this year where city officials rejected nearly 1 of every 5 mail-in votes — around a 20% disenfranchisement rate.

Absentee ballots should be reserved only for individuals who can’t make it to a polling place because they are disabled, ill, or out of town on Election Day — such as our overseas military personnel. And ballots should be mailed only to voters who actually request them.

► Make the tabulation process transparent and accessible for review.

Who can forget the images of Detroit election officials not allowing additional GOP observers in to watch the ballot counting, then covering the windows of the TCF Center with cardboard as they tabulated votes inside. Not a good look! Even when more observers were allowed in, some complained that the six-foot social distancing rules kept them so far back they couldn’t actually monitor the process.

Sunshine is the best disinfectant to make sure the vote tabulation or canvassing is clean — thereby assuring the public of the integrity of the process. What went down in Detroit may have violated state laws that guarantee the ability of political parties and candidates to observe every aspect of the election process, including the processing, handling, and counting of absentee ballots.

To guarantee such behavior does not happen again, violators need to be punished, including possible termination. And the same goes for those who threaten and try to intimidate election officials, like the Wayne County canvassers. Legislators need to consider putting better procedures in place moving forward and then hold officials accountable to follow those procedures. 

The recommendations made here aren’t exhaustive. Our hope is to start serious discussions about how to better secure and improve our electoral process. If state officials take these recommendations to heart and start making the indicated reforms, we will be in a much better place for the next election — only two years down the road.

Zack Smith is a Legal Fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. A Senior Legal Fellow at the center, Hans von Spakovsky heads the think tank’s Election Law Reform Initiative.