DETROIT — A federal judge has rejected Michigan Secretary of State Jocelyn Benson’s effort to dismiss a case challenging the state’s maintenance of its voter rolls when it comes to removing dead people.
U.S. District Court Judge Jane Beckering ruled last week against Benson’s motion to dismiss the case based largely on procedural bars she felt the plaintiff, Public Interest Legal Foundation, had met while filing the suit.
The judge has not yet ruled on the merit of claims, which allege Michigan at one point had nearly 26,000 dead voters still on its rolls. Beckering was nominated to the federal bench in Michigan's Western District by Democratic President Joe Biden.
The lawsuit was filed by the Public Interest Legal Foundation, an Indianapolis-based organization that says it “seeks to promote the integrity of elections in Michigan and other jurisdictions nationwide.”
"This initial win is the first step to ensuring that deceased registrants are not receiving ballots and reducing the opportunity for fraud in Michigan’s elections," said J. Christian Adams, president of the Public Interest Legal Foundation.
In a statement, Benson's office would not comment on pending litigation but said "Michigan's voter registration list is maintained in accordance with all applicable state and federal laws and our system has protocols in place to ensure its integrity."
Benson spokeswoman Angela Benander said the secretary of state's office immediately cancels voter registration when it receives official death confirmation, usually on a weekly basis through the Social Security Administration's Master Death Index.
"Additional inactive registrations were previously identified by the statewide mailing carried out by the bureau in 2020 — the first such mailing in a decade — and that resulted in more than 400,000 registrations slated for cancellation in 2025 to comply with the waiting period required under federal law," Benander said.
Federal law requires that a suspected inactive voter not be removed from a voting list until or unless they fail to vote in two statewide federal elections.
"In the meanwhile, instances of voter fraud remain extremely infrequent and isolated, are prosecuted, and are prevented by the many security checks built into Michigan’s elections system," Benander added.
The foundation wrote a letter to Benson's office in September 2020, notifying her that the state was allegedly violating federal voter list maintenance requirements as it relates to the removal of dead voters and requesting a meeting, according to the lawsuit.
Later that month, staff at the Bureau of Elections asked the foundation to provide an electronic list of individuals it believed were dead but maintained active registrations, and asked for a written description of the criteria the group used to come to that conclusion.
The foundation responded Oct. 5, 2020, with a spreadsheet and the criteria used to identify the registrations of concern, according to the suit. The group alleged it had identified dead voters on state rolls after purchasing a copy of the Qualified Voter File in 2019 from the secretary of state’s office. It compared the voter file to Social Security death data, printed obituaries and public notices and alleged there were thousands of dead Michiganders still on the voter rolls.
The foundation sent a follow-up letter on Nov. 25, 2020, two days after the presidential election was certified, and on Dec. 11, 2020, asked for access to certain records and notified the office that it would send someone to inspect the documents Dec. 18, 2020.
The Bureau of Elections responded Dec. 17, 2020, saying that it had not agreed to the inspection and that its offices were closed during the pandemic.
On Dec. 18, 2020, the foundation sent a notice that it would file a lawsuit under the National Voting Rights Act within 90 days.
The group filed its suit on Nov. 3, 2021, which Benson moved to dismiss on Dec. 13, 2021 in a filing that argued the group lacked standing and had not given proper notice to the Bureau of Elections of its impending suit.
Beckering on Thursday rejected Benson’s argument, noting the foundation had spent money and time to inspect the voter rolls and thus had “concrete and demonstrable injuries for standing purposes.”
“... The court determines that PILF has alleged a particular harm, which is fairly traceable to Secretary Benson’s conduct and redressable by this court, and therefore met its burden at the pleading stage to demonstrate injury in fact,” the judge said.
And the notice the group gave Benson of its impending suit was not vague, the judge wrote, but constituted "adequate pre-suit notice."
Benson also argued that PILF’s allegations don’t merit a suit under the National Voting Rights Act because the statute only requires the state to develop a program making a “reasonable effort” to remove dead voters.
But the judge dismissed that claim as well. PILF’s claims, if true, “give rise to an entitlement to relief” under the act, Beckering wrote.
“While Secretary Benson’s position is perhaps equally plausible, that argument, at the pleading stage, is insufficient to warrant dismissal,” the judge wrote.
The National Voting Rights Act requires Michigan’s secretary of state to create a program that makes a “reasonable effort” to remove dead people from the state voter file. The statute also requires the state to “maintain and make available for public inspection certain records” related to voter registration activities.
Benson said in filings that her office uses information each week from the Social Security death index to identify and eliminate the records of individuals who have died from the state’s Qualified Voter File.
But that process sometimes hits roadblocks when there is “insufficient matching information” — such as full name, complete birth date or accurate Social Security number — between the information on the Social Security file and the state’s voting rolls, according to filings in the case.
In addition to the removals conducted by Benson, county clerks forward a list to their city and township clerks at least once a month with the last known address and birth date of individuals who have died in the county, according to the filings. The local clerk then uses that information to cancel the registration of any dead individuals; local clerks also can use other information, such as a death notice in a newspaper or “personal firsthand knowledge," according to the filings.
The decision in the voting roll case comes after a tumultuous 2020 presidential election in which unproven claims of widespread fraud included allegations related to ballots cast in the names of dead voters.
In March, Michigan's Office of the Auditor General quashed that conspiracy theory after a review of state voting and public health records found about 1,616 votes, or 0.03% of total ballots cast, were attributed to people who had died before Election Day.
In 20 cases, a person who cast a ballot had died more than 40 days before the election. But, in most cases identified, the problematic votes were cast via absentee by an individual who died in the final days ahead of the election, meaning they were alive when they cast the ballot.
Those ballots are supposed to be rejected, and many are, but delays with death certificates and removal from voting rolls may impact an election worker's ability on Election Day to be able to identify and reject a ballot of a person who died close to the election, the report said.
The auditors' report recommended lawmakers discuss the possibility of setting a specific date election workers must match voting records with death records and discern whether a voter who dies after that date should have their ballot counted.
Trump lost Michigan's 2020 election to Biden by 154,000 votes, or 3 percentage points. Those results have been upheld by a series of court rulings, more than 250 local audits and an investigation by the GOP-controlled state Senate Oversight Committee.
The suit from the Public Interest Legal Foundation is the second filed challenging the alleged presence of dead voters on Michigan's qualified voter file. The group sued the city of Detroit in 2019 for failing to "reasonably maintain voter registration" but the suit was dropped after the organization found city officials had taken "remedial action" and fixed the voter rolls.
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(Detroit News staff writer Craig Mauger contributed to this report.)
