SB0370: SUMMARY AS PASSED BY THE SENATE (Date Completed: 6-26-23)

Senate Bill 370 (S-1) would have costs for the Department of State and local units of government related to the mailing of absentee voter (AV) applications, ballots, and pre-paid return postage costs. Proposal 22-2 requires the State to pay for the costs of pre-paid return postage for AV applications and AV ballots. Based on the elections in 2022, the costs to the State for pre-paid return postage for AV applications and AV ballots for those elections totaled an estimated $1.4 million (averaging $0.64 per parcel) while the average cost to locals for mailing applications and ballots for the November 2022 election totaled $1.75 million (averaging $0.80 per parcel). The costs for the State and local units of government are indeterminate and would depend on the number of AV applications and ballots that were mailed under the bill's provisions. Each application and ballot that would have to be mailed and returned under the bill would cost the State, on average, $0.64 per parcel while locals would pay an average of $0.80 per parcel mailed.

Senate Bill 371 would have no fiscal impact on local government and an indeterminate fiscal impact on the State, in light of the Michigan Supreme Court's July 2015 opinion in People v. Lockridge, in which the Court ruled that the sentencing guidelines are advisory for all cases. This means that the addition to the guidelines under the bill would not be compulsory for the sentencing judge. As penalties for felony convictions vary, the fiscal impact of any given felony conviction depends on judicial decisions.

MCL 168.759 et al. (S.B. 370) Legislative Analyst: Abby Schneider

777.11d (S.B. 371) Fiscal Analyst: Joe Carrasco, Jr.

CONTENT

Senate Bill 370 (S-1) would amend the Michigan Election Law to do the following:

-- Modify the absent voter application and ballot submission process to reflect Proposal 22-2's constitutional amendments, in addition to other modifications.

-- Require that absent voter applications and ballots sent by mail include prepaid envelopes for return provided by the clerk of a city or township.

-- Modify the absent voter application form to specify that an applicant could opt-in for an absent voter ballot for all following elections.

-- Modify the absent voter application form to include telephone and email contact information from the applicant and require a clerk to use that information to inform an applicant if the application were rejected for missing a deadline.

Senate Bill 371 would amend the Code of Criminal Procedure to modify an MCL reference that specifies that a Forged Signate on an absentee ballot is a Class E felony against the public trust with a maximum sentence of 5 years' imprisonment.

Senate Bill 370 is tie-barred to Senate Bill 339, which would require the SOS to establish an electronic tracking system that allowed each elector who voted by absentee ballot to track the application or ballot through a website or mobile application, and to Senate Bill 387, which would modify requirements for processing and tabulating absent voter ballots. Senate Bill 371 is tie-barred to Senate Bill 370.

Senate Bill 370 (S-1) is described in further detail below.

Senate Bill 370 (S-1)

Current Absent Voter Registration Process; Delete

Under the Law, a person must apply in person at the clerk's office before 8 PM on election day to vote as an absent voter. Unless otherwise specified, only the individual who is not a registered elector, or an individual who is not registered to vote in the city or township in which he or she is registering to vote, and who registers to vote on election day in person with the clerk if the city or township in which the individual resides may apply for and complete an absent voter ballot in person at the clerk's office on election day. Unless otherwise specified, the clerk of a city or a township is prohibited from issuing an absent voter ballot after 4 PM on the day before an election. The applicant will receive his or her absent voter ballot and vote the ballot in the clerk's office. All other absent voter applications, except emergency absent voter ballots, must be mailed or delivered to the registration address of the applicant unless the application requests delivery outside the city or township or to a hospital or similar institution. In such case, the absent voter application must be mailed or delivered to the address given in the application. Upon request of the absent voter, a clerk may mail or deliver an absent voter ballot to a post office box, if the post office box is where the absent voter normally receives personal mail, and the absent voter does not receive mail at his or her registration.

The Law allows an elector to apply for an absent voter ballot at any time during the 75 days before a primary, special primary, or election but no later than 8 PM on the day of a primary, special primary, or election. The elector can apply in person or by mail with the clerk of the township the elector is registered. The clerk of a city or township is prohibited from mailing an absent voter ballot to an elector after 5 PM of the Friday immediately before an election. The clerk of a city or township is prohibited from issuing an absentee voter ballot to a registered elector in that city or township after 4 PM on the day before the election. An individual may submit a voter registration application and an absent voter ballot application at the same time if applying in person with the clerk or deputy clerk of the city or township in which the individual resides. Immediately after the individual's voter registration application and absent voter ballot application are approved by the clerk or deputy clerk the individual may complete an absent voter ballot at the clerk's office so long as the individual met certain identification requirements.

At any time during the 75 days before an election but no later than 8 PM on the day of a primary, special primary, or election. The elector can apply in person or by mail with the clerk of the township the elector is registered. The clerk of a city or township is prohibited from mailing an absent voter ballot to an elector after 5 PM of the Friday immediately before an election. The clerk of a city or township is prohibited from issuing an absentee voter ballot to a registered elector in that city or township after 4 PM on the day before the election. An individual may submit a voter registration application and an absent voter ballot application at the same time if applying in person with the clerk or deputy clerk of the city or township in which the individual resides. Immediately after the individual's voter registration application and absent voter ballot application are approved by the clerk or deputy clerk the individual may complete an absent voter ballot at the clerk's office so long as the individual met certain identification requirements.

The clerk or assistant clerk is prohibited from delivering the absent voter ballot to an applicant who does not sign the absent voter ballot. Other than the applicant, only the following individuals can be in possession of a signed absent voter ballot:

-- A member of the applicant's immediate family.

-- A person residing in the applicant's household.

-- A person whose job normally includes the handling of mail, but only during his or her employment.

-- A registered elector, requested by the applicant to return the application who signs the certificate on the absent voter ballot application.

-- A clerk, assistant of the clerk, or other authorized election official.

If an elector obtains his or her absent voter ballot in person from the clerk of the city or township in which he or she is registered, the clerk of the city or township shall not provide absent voter ballot to that elector until the elector identifies himself or herself to the clerk by presenting identification for election purposes. If an elector does not have identification for election purposes, the elector may sign an affidavit to that effect before the clerk of the city or township and be allowed to obtain his or her absent voter ballot in person from the clerk. The clerk of the city or township shall indicate to each elector who is registered in that city or township and who obtains his or her absent voter ballot in person from the clerk that the elector may sign an affidavit indicating that the elector does not have identification for election purposes in order to obtain his or her absent voter ballot in person from the clerk. However, if an elector obtains his or her absent voter ballot in person from the clerk and votes by absent voter ballot without providing identification for election purposes required under this subsection, the absent voter ballot of that elector must be prepared as a challenged ballot as provided in Section 727 and must counted as any other ballot is counted unless determined otherwise by a court of law under Section 747 or 748 or any other applicable law. (Generally, Section 727 prescribes the duty of an election inspector to challenge an application that is known or suspected to be not qualified. Sections 747 and 748 specify a trial in the case of a contested election and the qualification of electors in a contested election, respectively.)

The bill would delete these provisions.

Absent Voter Ballot Application Process

Currently, an application for an absent voter ballot may be made in the following ways:

-- By a written request signed by the voter.

-- On an absent voter ballot application as provided for that purpose by the clerk of the city or township.

-- On a Federal postcard application.

Under the bill, an application for an absent voter ballot also could be made using an online absent voter ballot application as provided by the SOS.

The bill would allow a registered elector submit an absent voter ballot application in the following ways:

-- By mail or email to the clerk of the city or township in which the elector resided.

-- By using the online absent voter ballot application as provided by the SOS.

-- Until 4 PM on the day before election day, in person to the clerk of the city or township in which the elector resided.

-- On election day, in person until 8 PM, to the clerk of the city or township in which the elector resided, but only if the elector were registering to vote or updating the elector's voter registration address.

An elector who submitted an absent voter ballot on election day would have to complete the elector's absent voter ballot in the city or township clerk's office.

An absent voter ballot application that was submitted before a primary election could be for either that primary elector only or for that primary election and for each following election that year. An absent voter ballot application submitted prior to a presidential primary election could be for that presidential primary election only or for that presidential primary election and each following election that year. A registered elector would have the right to have an absent voter ballot sent to that elector before each election by submitting a single, signed voter ballot application that covered all future elections.

Under the bill, an individual could submit a voter registration application and an absent voter ballot application at the same time. Immediately after the voter registration for that individual was approved, the clerk would have to verify the absent voter ballot application and issue the absent voter ballot to that individual. An individual who submitted a voter application and voter ballot application at the same time and in person the day of the election would have to vote the absent voter ballot at the city or township clerk's office.

The Law specifies that the clerk of a city or township must have absent voter ballot applications forms available at all times and must furnish an absent voter ballot application to anyone upon verbal or written request. The bill would modify this language to specify that if an individual requested an application the clerk of a city or township would have to provide the application to the induvial in person, electronically, or by United States mail, with prepaid return postage, as requested by the individual. Additionally, the SOS or any county, city, or township clerk could provide an absent voter ballot application to a registered elector in the manner described above without a request from that registered elector.

Voter Ballot Application in Person

If an elector applied for an absent voter ballot in person at the clerk's office before 4 PM on the day before an election, the city or township clerk could not issue an absent voter ballot to that elector until the elector presented identification for election purposes. If an elector did not have identification for election purposes, the clerk would have to inform the elector that the elector would have to sign an affidavit to that effect in front of the clerk before an absent voter ballot could be issued in person to that elector. If an elector signed an affidavit, the clerk would have to issue an absent voter ballot to that elector.

Unless otherwise specified, a clerk could not issue an absent voter ballot in person to any elector after 4 PM on the day before election day. An elector who was in line at 4 PM on the day before election day, would have to be issued an absent voter ballot. This would apply to an individual who summitted an absent voter application by means other than in person at the clerk's office, but who received that individual's absent voter ballot in the clerk's office.

An individual who registered to vote or who updated the individual's voter registration on election day in accordance with the Law could apply for and complete an absent voter ballot in person at the clerk's office on election day. The individual could receive the absent voter ballot, mark the absent voter ballot in the clerk's office, and return the absent voter ballot to the clerk in the absent voter ballot return envelope. An individual who was in line to register to vote or to update the individual's voter registration at 8 PM on election day would have to be permitted to register to vote or update the individual's voter registration, apply for an absent voter ballot, and vote the absent voter ballot after 8 PM, including after 11:59 PM on election day if necessary. An individual who registered to vote on election day and who was in line to apply for an absent voter ballot at 8 PM on election day would be permitted to apply for an absent voter ballot and vote the absent voter ballot after 8 PM, including after 11:59 PM if necessary.

Absent Voter Application Form

The Law prescribes the form of the absent voter application. Currently an applicant can select between a primary or special election on a certain date or an election on a certain date. The bill would add an option for an applicant to select all future elections and request an absent voter ballot for each election. Additionally, the bill would specify that the form would have to include space for the applicant to add a telephone number and email address.

The absent voter application form includes instruction for absent voter ballots. Among other steps the form prescribes how an applicant should deliver the application. The bill would specify that the return envelope be the postage prepaid envelope provided by the appropriate clerk.

Under the bill, for a presidential primary election, the SOS would have to revise the absent voter ballot application form described above to require that a presidential primary elector indicate a political party ballot selection when requesting an absent voter ballot and provide a separate form for a presidential primary elector who had previously applied for an absent voter ballot to indicate or change a political party ballot selection.

Other than the applicant, only the following individuals could be in possession of a signed absent voter ballot application:

-- A member of the applicant's immediate family.

-- A person residing in the applicant's household.

-- A person whose job normally includes the handling of mail, but only during his or her employment.

-- A registered elector, requested by the applicant to return the application who signs the certificate on the absent voter ballot application.

-- A clerk, assistant of the clerk, or other authorized election official.

Absent Voter Ballot Application Signature and Verification.

The Law requires signatures on absent voter ballot applications. Under the bill, the digital image of an elector's signature from a Michigan driver's license or official Michigan personal identification card record, or an electronic image of the elector's physical signature, would be an acceptable signature for the absent voter ballot application. An absent voter application that was missing a signature would have to be rejected by the clerk and the clerk would have to provide notice and opportunity to cure the deficiency in a certain manner described under Absent Voter Ballot Application Processing.

Under the Law, the qualified voter file must be used to determine the genuineness of a signature on an application for an absent voter ballot. Signature comparisons must be made with a digitized signature in the qualified voter file. If the qualified voter file does not contain a digitized signature of an elector, or is not accessible to the clerk, the city or township clerk will compare the signature appearing on the application for an absent voter ballot to the signature contained on the master card. If before 8 PM on the day before election day the clerk of a city or township rejects an absent voter ballot application because the signature on the absent voter application does not agree sufficiently with the signature on the master card of digitized signature contained in the qualified voter file so as to identify the elector or because the elector failed to sign the absent voter ballot application, the city or township clerk will as soon as practicable, but in no event later than 48 hours after determining the signatures do not agree sufficiently or that the signature is missing, or by 8 PM on the day before election day, whichever occurs first, notify the elector of the rejection by mail, telephone, or by electronic mail. The bill would delete this provision.

Instead, the bill would specify that the signature on file would have to be used to determine the genuineness of a signature on an absent voter ballot. Signature comparisons would have to be made by reviewing the signature. An elector's signature would be invalid only if it differs in significant and obvious respects from the elector's signature on file. Slight dissimilarities would have to be resolved in favor of the elector. Exact signature matches would not be required to determine that a signature agreed sufficiently with the signature on file.

"Signature on file" would mean any of the following:

-- Any signature of an elector contained in the qualified voter file.

-- If the qualified voter file did not contain a copy of an elector's digitized signature, or was not accessible, the signature of the elector contained on the master card.

-- Only for purposes of the signature comparison, for an elector's absent voter ballot envelope, the signature on the elector's absent voter ballot application.

If the clerk of a city or township rejected an absent voter ballot application because the signature on the absent voter ballot application did not agree sufficiently with the signature on file or because the elector failed to sing the absent voter ballot application, the applicant would have to be provided notice and opportunity to cure the deficiency in the method described below. The notice would have to inform the applicant that the applicant would have to cure the deficiency by 4 PM on the fourth day before the election to receive an absent voter ballot by first class mail. If the applicant cured the deficiency by 4 PM on the fourth day before the election, the clerk would have to immediately send an absent voter ballot and a postage prepaid absent voter ballot return envelope to the applicant.

Absent Voter Ballot Deficiency, Curing, and Notification Process

Under the Law, if a clerk of a city or township receives an application for an absent voter ballot, the clerk must determine if the signature on the application agrees with the signature for the person contained in a qualified registration card. Upon receiving the application and after the printing of absent voter ballots, the clerk must immediately forward or deliver one of the ballots or set of ballots if there is more than one kind of ballot to be voted, to the applicant. The bill would modify this provision and instead, if the clerk or city of a township received an application for an absent voter ballot, the clerk would immediately determine if the applicant was registered to vote in that city or township and if the signature on the application agreed sufficiently with the signature on file. Once the clerk verified the application and after the printing of absent voter ballots the clerk would have to deliver the ballot to the applicant. Additionally, the clerk would have to include with the absent voter ballot, a postage prepaid absent voter ballot that an applicant by first-class mail after 5 PM on the fourth day before an election.

If a clerk determined that the elector's signature on the absent voter ballot application or absent voter return envelope was missing or did not agree sufficiently with the signature on file, the clerk would have to reject the absent voter ballot application or absent voter ballot return envelope and provide the elector with notice and the opportunity to cure the deficiency.

The clerk would have to notify the elector of the following:

-- The nature of the deficiency and that the deficiency had resulted in the rejection of the elector's absent voter ballot application or return envelope.

-- The need to cure the deficiency for the absent voter ballot application or ballot to be tabulated.

-- How to cure the deficiency.

-- The deadline for curing the deficiency.

-- The alternative methods of voting if the deficiency was not cured.

The clerk would have to notify the elector of the deficiency by the end of the next business day following the receipt of the absent voter ballot application or absent voter ballot return envelope. The clerk would have to notify the elector by telephone, email, or text message if available. In the absence of the elector's telephone number or email address, the clerk would have to notify the elector by United States mail. The clerk also could provide notice to the elector by any other available method of contact. Electronic notification of the rejection of the absent voter ballot application or return envelope that provided the information required under Section 764c, which allows for a ballot tracker program provided by the State, that provided the required information would constitute sufficient notification to the applicant.

An elector could cure a deficiency by completing and submitting a cure form. The SOS would have to prescribe the content and requirements of the cure form. An elector would be permitted to receive and return a cure form electronically, in person, or by mail with postage prepaid as a supplement to the prepaid postage for the absent voter ballot application or absent voter ballot return envelope. The city or township clerk in which the elector was registered could physically collect a cure form from the elector. A cure form would have to provide the elector the option to cure a deficiency in the elector's absent voter ballot application or absent voter ballot return envelope by signing the statement required for the absent voter ballot application or absent voter ballot return envelope. The SOS would have to modify the statements to reflect that the elector was signing a cure form for the absent voter ballot application or absent voter ballot return envelope rather than the original absent voter ballot application or absent voter ballot return envelope. An elector would be permitted to submit an electronic image of the elector's physical signature in lieu of a physical signature for a cure form returned electronically. A clerk would have to accept a cure form if the signature on the cure form agreed sufficiently with the signature on file. If the clerk determined that the signature on the cure form did not agree sufficiently with the signature on file, the clerk would reject the cure form and contact the elector to provide information on other options to cure the deficiency and to provide the alternative methods of voting available for that election.

The SOS could issue instruction to clerks to provide electors with other options, other than by providing a signature, to cure the deficiency in the elector's absent voter ballot application or absent voter ballot return envelope.

Beginning 45 days before an election, if an absent voter ballot application or absent voter ballot return envelope were received six or more calendar days before an election, the clerk would have to make a reasonable effort to verify or reject the absent voter ballot or return envelope by the end of the next business day following the receipt of that application or return envelope. If an absent voter ballot application or return envelope were received five or fewer days before an election or on election day, the clerk would have to verify or reject the absent voter ballot application or return envelope by the end of the calendar day of receiving that application or return envelope was received.

If an absent voter ballot application or absent voter ballot return envelope came into the physical control of the clerk's office before or during the clerk's scheduled business hours on a day, that absent voter ballot application or absent voter ballot return envelope would be considered received by the clerk on that day. If an absent voter ballot application or absent voter ballot return envelope came into the physical control of the clerk's office after the end of the clerk's scheduled business hours on a day, or if the absent voter ballot application or absent voter ballot return envelope came into the physical control of the clerk's office on a day on which the clerk did not have scheduled business hours, that absent voter ballot application or absent voter ballot return envelope would be considered received by the clerk on the first subsequent day on which the clerk had scheduled business hours.

Each absent voter ballot application or absent voter ballot return envelope retrieved from an absent voter ballot drop box before or during the clerk's scheduled business hours would be consider received by the clerk on the day the application or return envelope was retrieved. An absent voter ballot application or absent voter ballot return envelope retrieved from an absent voter ballot drop box after the end of the clerk's scheduled business hours on a day or deposited in an absent voter ballot drop box on a day on which the clerk did not have scheduled business hours, would not be considered received by the clerk until the first subsequent day on which the clerk had scheduled business hours.

An absent voter ballot return envelope that was collected by an election official through the procedure provided under Section 764b(4) or (5) would be considered received when the election official came into physical possession of the absent voter ballot return envelope. Nothing in the bill would prevent a clerk from providing a notification to an elector in a more timely manner than required. (Section 764b (4) or (5) allow a clerk to assist an absent voter in retuning a absent voter ballot upon request).

Additionally, if the clerk of a city or township received an absent voter ballot application after the deadline for a clerk to mail an absent voter ballot by first class mail to the applicant and the clerk did not otherwise promptly provide the applicant with an absent voter ballot, the clerk would have to immediately notify the applicant that the applicant's absent voter application was rejected as not timely received and notify the applicant of the alternative methods of voting available for the election. If an absent voter ballot application were rejected due to missing the application deadline, the application would still have to be processed for any future election indicated on that application.

The clerk would have to notify the applicant by telephone, email, or text message if available. In the absence of the applicant's telephone number or email address, the clerk would have to notify the applicant by United States mail. The clerk could also provide notice to the applicant by any other methods of contact.

If a county clerk received an application for an absent voter ballot from an individual, the county clerk would have to immediately forward that absent voter ballot application to the appropriate city or township clerk where that individual resided. If the city or township clerk received an application for an absent voter ballot from an individual who was registered to vote in a different city or township, that clerk would have to immediately contact the individual to determine where the individual resided and should have to be registered to vote. If that city or township clerk determined that the induvial was registered to vote in a different city or township, the clerk would have to electronically forward the application to the clerk of the city or township where the individual was registered.

Unless otherwise specified, and except for ballots delivered pursuant to an emergency absent voter ballot application, absent voter ballots would have to be mailed or delivered to the applicant at the applicant s registration address unless the applicant requested that the absent voter ballot be sent to a different address as provided in the applicant's absent voter ballot application. In addition, a clerk could mail or deliver an absent voter ballot, on request of the applicant, to a post office both if the post office box was where the applicant normally received mail and the applicant did not receive mail at the applicant's registration address. An absent voter ballot could be delivered to an applicant in person at the clerk's office if certain conditions were met.

The Law specifies that absent voter ballots must be issued in the same order in which applications are received by the clerk of a city, township, or village, as nearly as may be, and each ballot issued must bear the lowest number of each kind available for this purpose. However, this provision does not prohibit a clerk from immediate issuing an absent voter ballot to an absent voter who applies in person in the clerk's office for absent voter ballots. The bill would delete this provision.

Additionally, the Law prescribes the specifications for the form of the enclosed ballot in a return envelope. Generally, the form allows an applicant to select that they are a qualified and registered voter. The bill would modify this language and delete qualified voter.

Absent Voter Ballot Processing

Under the Law, on receipt from the city or township clerk of an envelope containing the marked ballot or ballots of an absent voter, the board of inspectors of election will verify the legality of the vote by doing the following:

-- Examining the digitized signature for the absent voter included in the qualified voter file under Section 509q or the registration record to see that the person has not voted in person, that he or she is a registered voter, and that the signature on the statement agrees with the signature on the registration record.

-- Examine the statement of the voter to see if it is properly executed.

(Generally, Section 509q prescribes the information required in a qualified voter file.)

The qualified voter file must be used to determine the genuineness of a signature on an envelope containing an absent voter ballot. Signature comparisons must be made with the digitized signature in the qualified voter file. If the qualified voter file does not contain a digitized signature of an elector, or is not accessible to the clerk, the city or township clerk will compare the signature appearing on an envelope containing and absent voter ballot to the signature contained on the master card.

The bill would delete these provisions.

Instead, under the bill on receipt of an envelope that contained the marked ballot of an absent voter, the city or township clerk would have to determine whether the ballot was approved for tabulation by verifying the following:

-- The elector was a registered elector and had not voted in person in that election.

-- The signature on the absent voter ballot return envelope agreed sufficiently with the elector's signature on file.

Subject to Section 510(8), if the city or township clerk verified the information above, the clerk would approve the absent voter ballot for tabulation and record in the qualified voter file that the absent voter ballot had been approved for tabulation. If the city of township clerk were not able to verify the above information, the clerk would have to reject the absent voter ballot return envelope.

(Section 510(8) specifies that if an elector has died but was issued an absent voter ballot the clerk of that city or township would have to make every effort to remove that absent voter ballot return envelope.)

If a city or township clerk rejected an absent voter ballot return envelope because the signature on the absent voter ballot return envelope was missing or did not agree sufficiently with the electors signature on file, the elector would have to be granted the opportunity to cure the deficiency until 5 PM on the third day following the election in order for the absent voter ballot, if otherwise valid, to be accepted for tabulation.

If an absent voter ballot return envelope that was eligible to be cured was not cured by the close of polls on election day, that absent voter ballot return envelope would have to be retained at the clerk's office and could not be turned over to the board of election inspectors or to an absent voter counting board. An absent voter ballot return envelope that was cured after the close of the polls on election day, but before 5 PM on the third day following the election, would have to be accepted and the ballot tabulated if the elector had not voted in person in that election. An absent voter ballot return envelope that was not cured by 5 PM on the third day following the election would remain rejected.

On receipt of a cure form, that resolved the signature deficiency on an elector's absent voter ballot return envelope, the clerk would approve the ballot for tabulation. No later than the sixth day after election day, each city or township clerk would have to deliver the absent voter

[1] "November 2022 Ballot Proposal 22-2," Senate Fiscal Agency.

[2] "2022 Michigan Election results," Elections, Michigan Department of State. Retrieved on 4- 11-23.

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This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent.