“Whether by mistake or fraud,” 334 deceased Michigan registrants are listed on government records as registering to vote after their date of death, according to a recent filing in the federal Sixth Circuit Court of Appeals by the Public Interest Legal Foundation (PILF).
Nearly four years ago, the PILF discovered 27,000 names of likely deceased registrants on the state’s Qualified Voter File (QVF).
The group asked Michigan Secretary of State Jocelyn Benson, a Democrat, about her plan to remove them.
In this screenshot from the livestream of the 2020 Democratic National Convention, Michigan Secretary of State Jocelyn Benson addresses delegates on Aug. 20, 2020. (DNCC via Getty Images)
They gave Ms. Benson over one year to act or, at a minimum, make available for public inspection a detailed plan of action for canceling the voter registrations of the dead. She did neither.
According to the PILF filing, Michigan election officials were “unresponsive to specific, sound data provided by the Foundation” regarding the deceased registrants, many of whom had been on the QVF for decades.
“Secretary Benson is vigorously opposing efforts to remove tens of thousands of deceased registrants we found on the voter roll,” said PILF President J. Christian Adams in a May 29 press release.
“Federal law requires state election officials to have a reasonable program to remove the dead. Keeping dead voters on the rolls for two decades isn’t reasonable. This case will have significant implications for whether effective maintenance is required by federal law,”
Auditor General Confirmed Numbers
In 2021, the Michigan Auditor General’s office conducted what it called “a death match for active voters in the QVF.”
The match yielded the names of between “twenty and thirty thousand” deceased registrants on the voter rolls.
A three-and-a-half-year legal battle ensued, beginning with the PILF filing a two-point complaint in the federal district court alleging that Ms. Benson failed to conduct list maintenance and failed to allow inspection of public records concerning her plan to remove the deceased, and other data.
On March 1, 2024, the district court entered a summary judgment rejecting both of PILF’s points, which led the foundation to take the case to the federal Sixth Circuit Court of Appeals.
In announcing its victory in the district court, the Michigan Department of State issued a statement on March 2 calling the PILF’s efforts “a thinly veiled attempt to undermine voters’ faith in their voice, their vote, and our democracy.”
According to the PILF filing, the appeal presents questions of “first impression for this Court and raises issues of national importance regarding the interpretation of the National Voter Registration Act.”
In law, a first impression is a new legal issue or interpretation that is brought before a court.
The NVRA of 1993 (known as “Motor Voter”) requires states to “conduct a general program that makes a reasonable effort to remove the name of ineligible voters” due to death.
PILF lawyers contend that the exact meaning of the phrase “reasonable effort” has not been addressed by the Sixth Circuit Court of Appeals or any court within that court’s jurisdiction since the law’s enactment in 1993.
The district court concluded that whatever Ms. Benson is doing to clean up and maintain the voter rolls constitutes a reasonable effort and, therefore, found that she complied with the NVRA requirement.
The PILF asserts that an ineffectual, mistake-ridden, voter list maintenance program that allows between 20,000 and 30,000 dead people to remain on the QVF for decades should not be considered reasonable.
According to the PILF, merely having a nominal voter roll maintenance program in place is not enough to satisfy the NVRA.
What matters to the intent of Congress is “whether the Secretary effectively follows the list maintenance statutes and procedures,” the appeal said. “The Secretary seeks to evade scrutiny by relying on something labeled a ‘program’ to remove deceased registrants, no matter how ineffective.”
Discovery Limited, Depositions Denied
Also, according to the PILF appeal, the district court erred by granting Ms. Benson’s request for summary judgment without the secretary of state being deposed by the plaintiff.
Earlier, Ms. Benson convinced a court magistrate that she was too busy to sit for the deposition and obtained a protective court order to block the process.
The appeal stated that PILF was not only denied the ability to depose Ms. Benson but also could not depose an SOS employee who conducted voter list analysis, and the Electronic Registration Information Center (ERIC), upon which Michigan and about two dozen other states rely for data identifying ineligible voters.
The district court order required the PILF to first show defects in ERIC’s process of identifying deceased voters before having the opportunity to learn what those processes and procedures were through deposition.
“These denials of discovery should be reversed so the complete picture and truth about the Secretary’s list maintenance programs can be ascertained,” the appeal brief said.
Because of the danger of recurring injury, the PILF appeal stated that a permanent prospective injunction to compel Ms. Benson to comply with her responsibilities under the NVRA would be warranted.
PILF attorneys stressed the importance of timely compliance before another federal election takes place.
The PILF asked the appeals court to reverse the district court and render judgment that Secretary Benson violated the NVRA’s Public Disclosure Provision, or to remand that claim to the district court for reconsideration.
