Hayley Harding, Votebeat

Michigan poll challengers face stricter rules going into the November election, part of a wave of new requirements that aim to prevent some of the disruptions that marred the ballot counting process four years ago.

Poll challengers — distinct from poll workers and poll watchers — are individuals stationed at polling places and vote-counting centers who have unique powers under Michigan law to challenge a voter’s eligibility or question the way officials are doing their jobs.

Their role in Michigan elections drew national attention in 2020, when some poll challengers who were kept out of a ballot processing center in Detroit that was filled to capacity began banging on the windows and demanding a halt to the count.

Many of the new rule changes are small but targeted at averting such conflicts that could delay vote counting. The most significant changes focus on how challengers are allowed to behave — for example, a poll challenger could be removed from the facility if they make repeated challenges that don’t pass legal muster, or “impermissible” challenges.

“I think these rules are going to help counting be accomplished more quickly,” said David Jaffe, who has served as a poll challenger in Detroit in almost every election since 2018.

He’s seen instances where challengers report the same minor, often-impermissible complaints to liaisons across a counting center, alleging that something about the way workers are counting ballots violates state law. Their goal is to get someone to take up that challenge — even if the process in question isn’t illegal — and to change the counting process, which slows the work for everyone.

In August 2022, Votebeat reported, a rogue challenger was the only significant disruption to an otherwise quiet primary day.

“This hopefully means counting can be done more expeditiously and that challengers will be focused on the right things, which is pointing out any errors that happen along the way and getting them corrected,” Jaffe said. “There’s not very many, but it’s a repetitive process.”

Who are poll challengers, and what can they do?

Many states allow observers to be present at the polls, but in Michigan, credentialed poll challengers have added power to question the eligibility of a voter or even the way ballots are processed.

Almost anyone can be a challenger, but they must follow specific rules. To serve as a challenger, a person must be registered to vote in Michigan and credentialed by a specific organization for each election they want to work. Credentialing organizations can be political parties or external organizations, such as the ACLU or the League of Women Voters, that are approved by a community’s clerk. Candidates and their campaigns cannot give credentials.

Local officials generally try to ensure that poll challengers at a given polling place are evenly split between the two major parties.

There are no training requirements for challengers. But the credentialing groups are encouraged to make sure that they have basic knowledge about what is and is not allowed, so that they can “make informed challenges without disrupting or delaying election-related activities,” the 2024 guide says.

Like poll watchers, challengers observe what’s happening. But they have two main added powers: They can question whether a voter is actually allowed to vote, as long as their challenge is based on whether the person meets age, citizenship, registration or residency requirements. And they can notify officials of any potential violation of election law, such as electioneering at a polling place.

At a polling place, a challenger who questions a voter’s eligibility has to have some cause to believe a voter isn’t allowed to cast a ballot — the person’s race or difficulties speaking English are not valid reasons, as noted in the 2024 guidelines.

Challengers at a polling place can also inspect printed materials like ballot applications and registration lists, but they can’t touch them or impede with voting. They’re allowed to stand behind the processing table, but they can’t touch the poll book that poll workers use to check in voters.

At an absentee voter counting board — where ballots cast by mail are processed — challengers can monitor how the ballots are being processed. They’re allowed to be close enough to the poll books to view names, but again, they aren’t allowed to handle anything themselves.

In both cases, poll challengers are not allowed to talk to or interact with voters. They’re also not allowed to record audio or video.

Lisa Posthumus Lyons, Kent County clerk, said challenging can be “very touchy.”

Challengers can’t issue blanket challenges against a specific voter, she said during a gathering in Ann Arbor last week of election officials from around the country. Rather, they would have to know enough about the voter to be able to argue specifically why they wouldn’t be eligible. Oftentimes, that requires knowing the voter personally, she said.

“It needs to be done delicately and properly,” Posthumus Lyons said.

It “isn’t a weapon — it’s a tool,” that’s intended to allow citizens to help ensure the voter rolls are accurate, she said.

Chris Thomas, the former state director of elections who now helps Detroit run its elections, told Votebeat that the presence of poll challengers at polling places and counting boards can help keep elections running smoothly and can minimize potential false accusations of cheating, by allowing people to watch what’s happening and flag potential problems in real time.

“People need to be able, through their organizations, to see it,” he said.

Michigan also allows poll watchers, who do not need to be credentialed. Municipalities may limit poll watchers to a number that “does not cause the process to be disrupted,” according to the 2024 guidelines released earlier this month. Poll watchers are more limited than challengers in where they can be and who they can interact with.

What the new guidelines for Michigan poll challengers say

Secretary of State Jocelyn Benson’s guidelines for poll challengers have doubled in length from 2020, in part to accommodate changes and clarify some of the existing rules.

Some of the biggest changes came into effect in 2022. They include a requirement that the challenger’s credentials must be the specific form offered by the Secretary of State’s office (in previous years, anything with the required information would suffice); a rule that challengers can talk only to specific “liaisons” at polling places; and a note that poll workers don’t need to document impermissible challenges.

Some of the rules were the subject of a court challenge in 2022 from plaintiffs who argued that they were not enacted properly. The Michigan Supreme Court in August ruled that Benson has the right to set rules for challengers and that most of the rules she proposed were acceptable.

The newest set of rules, issued earlier this month, acknowledges the suits and says the regulations issued for 2024 act within the bounds the judge set.

Other noteworthy changes to the challenger guidelines include clarity on how a clerk can limit the number of challengers based on the size of the room and the number of processing teams, as well as a new rule that challengers in an absentee vote counting board cannot challenge the eligibility of a voter, as they can in a polling place. That’s because voters have the right to respond to challenges to their eligibility, which they couldn’t do in an absentee counting board.

Those challenges were a source of disruption and conflicts with poll workers in the past.

“People tried that in 2022 and they couldn’t pull it off, but now we won’t allow it at all,” Thomas said.

For most voters, the rule changes won’t mean much, he said, but giving state and local officials the opportunity to prevent disruptions is valuable in ensuring that results can come in quickly and accurately.

In Detroit, for instance, under the new rules, local officials won’t tolerate groups of challengers moving from one precinct’s counting board to another, trying to get their challenges to stick even after previous officials rejected it, as Jaffe has seen previously.

Thomas said it’s helpful for election officials to give poll challengers clarity about their inability to challenge voters during absentee ballot counting.

“That’s certainly going to address the big issues that would certainly slow the process down,” he said.

Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at hharding@votebeat.org.

Votebeat is a nonprofit news organization covering local election integrity and voting access. Sign up for their newsletters here.

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The American Civil Liberties Union of Michigan is suing a member of the Kalamazoo County Board of Canvassers, hoping a judge will declare that the man must certify the November election results, after a newspaper reported him saying that he might not.

The suit is part of a growing legal effort around the country to ensure that the November election is certified on time by making it clear to any potentially defiant officials that they’re not allowed to refuse to certify, and that they could face charges or penalties if they do.

The ACLU suit follows a Detroit News report that Robert Froman, a 73-year-old Republican canvasser in Kalamazoo County, said he would not certify the 2024 presidential election if it went the same way as the 2020 election, which he believed was stolen from former President Donald Trump. Trump lost Michigan by about 150,000 votes to Joe Biden.

The ACLU, representing two Kalamazoo County residents, is asking the court to declare that Froman is legally required to certify the election. State law already requires canvassers to certify elections within 14 days or face potential misdemeanor charges for “willful neglect of duty” and huge potential costs.

Froman told Votebeat on Wednesday that he would certify the election and said his words were taken out of context. The Detroit News, in a letter included in the ACLU’s filing, stood by its reporting.

“I think this whole thing is kind of ridiculous,” Froman told Votebeat, arguing that it made no sense to sue him over something he hasn’t done. “I don’t care about 2020. ... I just want to make sure everyone who walks into a precinct gets their vote counted.”

Why would the ACLU sue preemptively?

It’s not unusual to sue over something that has not happened, although plaintiffs don’t often ask a judge for something as straightforward as declaring that someone must follow a law.

Cases where a person or board is actually taken to court over certification are relatively rare, although officials and outside groups do threaten legal action. Lawsuits over mere threats of refusal to certify appear to be rarer still, and Froman’s case could be the first of its kind.

It makes sense in this case for the ACLU to file the suit preemptively, and in general for officials and advocates around the country to zero in on the legal obligations of canvassers, said Quinn Yeargain, a professor of law at Michigan State University.

Election officials acting proactively across the country now can help minimize problems after the election, Yeargain said. The goal is to keep people from trying to act outside of the prescribed duty of their job to protect the sanctity of elections.

“It’s an unfortunately necessary course of action that has been taken to respond to truly unnecessarily, highly egregious conduct” across the U.S., Yeargain said, referring to the string of certification battles since the 2020 election.

Before 2020, certifying an election was generally uneventful and took place behind the scenes after an election. But in Michigan and other states that year, Trump and his allies roiled the certification process by promoting unsubstantiated claims of voting irregularities and fraud.

In Wayne County, the state’s most populous, two Republicans fought certification and were allegedly pressured by Trump himself to not certify. At the state level, a Republican initially refused to certify, putting Michigan’s certification in limbo until the other Republican canvasser voted to approve it, saying the board had “a duty to certify based on these returns.”

The effort to reinforce the duty to certify is “a logical, rational response, based on what we’ve seen so far, seeking to prospectively guard against the further erosion of democratic norms,” Yeargain said.

A 2022 law clarifies what canvassers do — and can’t do

Michigan’s laws make it clearer than many states that canvassers must certify elections based on vote totals presented to them. They are not allowed to investigate the election or question its legitimacy based on outside factors. If county canvassers don’t certify an election, they’re required to turn the results over to the Board of State Canvassers, who are then required to certify the election. And in that case, the county that didn’t certify would have to pay for the state-level canvass, a cost that could be passed on to the individual canvassers.

A constitutional amendment adopted by the 2022 passage of Proposal 2 clarifies that only election officials — not canvassers — can audit elections. Proposal 2, which included a series of election reforms and was approved with nearly 60% of the vote, also requires canvassers to verify elections based only on compiled vote totals.

Officials saw an example of what a failure to certify could look like in May, when Delta County canvassers initially refused to certify a recall election after advocates called for a forensic audit despite no evidence of irregularities. After pressure from the state, canvassers did eventually certify the election.

Secretary of State Jocelyn Benson and Attorney General Dana Nessel used the incident as an opportunity to make clear that failing to certify would be a violation of a canvasser’s duties, and involve civil and criminal charges as well as fees.

Other states are invoking similar laws to resolve or head off certification fights. In Arizona, a court forced a county board to certify its election results after it failed to do so by the state deadline in November 2022 under a similar statute. Two of those board members were then indicted for initially refusing to certify.

In Georgia, the state Democratic Party and the national party have sued to prevent the state election board from implementing new rules they say could prevent certification come November. Specifically, Democrats cite two new rules in their lawsuit as violations of the state’s requirement to certify: one that requires election officials to certify after conducting a “reasonable inquiry” without defining what that might be and another that appears to give county election boards the ability to investigate elections if vote totals are off.

The rules were approved with support from State Election Board members whom Trump later praised by name at a rally.

In Michigan, the lawsuit against Froman seeks to have a judge declare that canvassers must abide by their constitutional duties and cannot “unlawfully foist his obligations onto members of the Board of State Canvassers.” A refusal to certify would violate Kalamazoo County residents’ right to vote, the suit says.

Phil Mayor, senior attorney for the ACLU of Michigan, said that the major goal of the suit was to prevent the politicization of the canvasser’s job, which he referred to as “the simple ministerial duty of grade school math”: adding vote tallies together and confirming that the stated winner has the highest total.

Refusing to certify comes with an immense financial cost that is unfair to taxpayers, he said, and sows doubt in the election that can have long-term consequences.

“Mr. Froman may have said the quiet part out loud, if his reported comments are true, but there’s a very good reason to believe that there are other canvassers who feel the same way but aren’t saying the quiet part out loud,” Mayor said. “This lawsuit ought to be a message to them that they too will be held accountable if they refuse to do their duty.”

Nathaniel Persily, a Stanford law professor who specializes in election law, said it wasn’t clear if the suit would achieve its stated goal of getting a judge to remind Froman of the requirements of being a canvasser. But legal success isn’t the only thing on the line, he said.

“They want to put officials in Michigan and elsewhere on notice that there will be legal consequences for officials who fail to perform their duties required by law,” Persily said.

Disclosure: Reporter Hayley Harding was previously employed by The Detroit News.

Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at hharding@votebeat.org.

Votebeat is a nonprofit news organization covering local election integrity and voting access. Sign up for their newsletters here.

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

Every other August in Michigan, thousands of votes are rejected because the voters didn’t pay attention to the directions on their primary ballot, or didn’t understand them.

The problem occurs when voters do something called “crossover voting,” where, intentionally or otherwise, they vote for candidates from different parties on the same ballot. In a general election, that would not be a problem. And in a presidential primary, it wouldn’t be possible.

But in the August primary elections — where candidates for federal- and state-level positions are selected — a crossover vote that doesn’t get caught by the voter means officials can’t count the votes on the partisan section of the ballot. And many voters, particularly if they vote absentee, will never know that their partisan votes didn’t count, if they’re not around or don’t respond when their ballot gets flagged by the tabulator.

“I think that sometimes, it can be a source of confusion,” said Elizabeth Hundley, Livingston County Clerk.

It’s difficult to tell exactly how many crossover votes are cast in Michigan’s August primaries — the state doesn’t keep track of the number, and neither do many of the counties Votebeat surveyed. But the counties that do keep track suggest the number is significant, meaning there are likely thousands of Michiganders whose votes on the partisan section aren’t counted each election. (Votes in the other sections of the primary ballot — for nonpartisan candidates, proposals or millages — are unaffected by the mistake, and still get counted.)

Two years ago in Macomb County, for example, nearly 6,300 ballots — about 3.6% of the more than 175,000 people who voted in the county’s August primary — had a crossover vote, officials said.

Washtenaw County doesn’t explicitly track rejections due to crossover votes, but Votebeat’s analysis of vote data from the county suggest the total was close to 1,400 votes in 2022, or roughly 1.5% of the 87,526 votes cast there. Even if that relatively low percentage was consistent statewide, Washtenaw County Clerk Lawrence Kestenbaum said, it would still be thousands of votes across Michigan being excluded from the count.

The rate of crossover voting is a significant improvement over the “punch card days,” Kestenbaum said, when “something like 5% to 15% of primary ballots would not have partisan votes counted.” Punch-card ballots, which were largely phased out across the state by the early 2000s, didn’t enable voters to catch their mistakes in the way today’s electronic tabulators do.

That’s why the problem primarily affects absentee voters today, clerks say. If an in-person voter were to select candidates from different parties, the tabulator would flag the error, giving the voter the chance to correct the problem by spoiling their original ballot and filling out a new one.

Absentee voters don’t get that chance and will likely never be aware of the issue.

When election workers insert an absentee ballot with a crossover vote into a tabulator, “the tabulator will still beep,” said Meredith Place, Kalamazoo County Clerk. “But the inspector then has to select the button to cast the ballot anyway. They can’t fix the crossover vote, and the whole partisan section isn’t counted.”

In Michigan, more than 1.5 million people have requested absentee ballots ahead of Tuesday’s election, according to Secretary of State Jocelyn Benson’s office, exceeding the number requested in the same time period in 2020, during the COVID-19 pandemic.

It’s not that voters aren’t given instructions on how to mark their ballots correctly, clerks say. Those who vote in person, either early or on Election Day, will get instructions from poll workers to stay within a single party column. There are also instructions printed on the top of ballots that tell voters to choose only one party. Many polling places will also have signage to further warn voters.

With mail ballots, there is an included instruction sheet that tells voters in capital letters: “YOU MAY VOTE IN ONE PARTY SECTION ONLY; YOU CANNOT ‘SPLIT YOUR TICKET.’ IF YOU VOTE IN MORE THAN ONE PARTY SECTION, YOUR PARTISAN BALLOT WILL BE REJECTED.”

But still, there are enough places for confusion that many voters miss the messaging altogether.

For one thing, the August ballot is not like the others. In February’s presidential primary, Michigan has a closed primary where voters have to request a specific party’s ballot, so there’s no risk of a crossover vote. In November’s general election, voters can vote straight-ticket or go back and forth as they please for each office.

But August — technically considered an open primary, because voters don’t have to declare a party — is ripe for problems, because voters may not be alert to the risk, especially if they’ve voted before and expect the August ballot to be like the others.

“If we did the regular primary the way we do the presidential, this problem wouldn’t exist at all,” Kestenbaum said.

Another concern comes from the design of the ballot itself, which has a number of flaws, according to Whitney Quesenbery, director of the nonprofit Center for Civic Design, which helps ensure best practices for ballots across the country.

Among the issues Quesenbery flagged: The text on the ballot itself is small. The separate instruction sheet that comes with the mail ballot has language that’s set by state law but is potentially confusing, and the important information on potential pitfalls comes after information on how to fill in a bubble, which could lead voters to ignore it altogether. The columns for separate parties don’t have a lot of visual space between them.

“This was all written into law by lawyers, not by the people who have to explain to people how things work,” Quesenbery said. “They don’t give enough attention to accurately explaining a complex system.”

Largely, clerks say they’re doing all the can to make sure voters are aware they can vote in only one column. Beyond that, there’s a level of what Hundley called “personal responsibility by voters” to make sure they read instructions.

But some clerks say they’d consider a change because, as Hundley also said, an election administrator’s goal is to make sure “the will of the people is accurately reflected.”

Any significant changes would require changing state law. Legislators aren’t really talking about addressing potential August primary confusion, said Rep. Penelope Tsernoglou, a Democrat from East Lansing, because few people have brought it to their attention.

The open primary creates a complication with crossover voting, but it helps to eliminate a reason that might discourage people from voting at all, because they don’t have to declare a party, Tsernoglou said. While she described herself as a fan of the open primary system, she said she’s “always open” to proposals to try to address concerns people have about voting.

Before making any major moves, she said she would want more information on the scope of the problem. In the meantime, she said she thought more voter education might help.

“If people are really struggling with this, I’d want to look at it and consider what we can do,” Tsernoglou said. “I want to do all we can to make voting fair, accessible and easy for everyone.”

Hayley Harding is a reporter for Votebeat based in Michigan. Contact Hayley at hharding@votebeat.org.

Votebeat is a nonprofit news organization covering local election integrity and voting access. Sign up for their newsletters here.