SENATE BILL NO. 757

January 28, 2020, Introduced by Senators JOHNSON, WOJNO, BULLOCK, LUCIDO, NESBITT, RUNESTAD, MACDONALD, MACGREGOR and HOLLIER and referred to the Committee on Elections.

"Michigan election law,"

by amending sections 765, 765a, and 765b (MCL 168.765, 168.765a, and 168.765b), section 765 as amended by 2018 PA 603, section 765a as added by 2018 PA 123, and section 765b as added by 2018 PA 127, and by adding sections 14b and 24k.

the people of the state of michigan enact:

Sec. 14b. As used in this act, "absent voter ballot secrecy envelope container" means a container described in section 24k that is used for storing and securing absent voter ballot secrecy envelopes that are removed from the absent voter ballot return envelopes on the day before election day as provided in section 765.

Sec. 24k. (1) An absent voter ballot secrecy envelope container includes a ballot bag, box, transfer case, or other container used to store and secure absent voter ballot secrecy envelopes.

(2) A manufacturer or distributor of an absent voter ballot secrecy envelope container shall submit an absent voter ballot secrecy envelope container to the secretary of state for approval under the requirements of subsection (3) before the container is sold to a city or township for use at an election.

(3) The secretary of state shall not approve an absent voter ballot secrecy envelope container unless the container meets both of the following requirements:

(a) The container is made of metal, plastic, fiberglass, or other material, that provides resistance to tampering.

(b) The container is capable of being sealed.

(4) Before June 1, 2020, and before June 1 of every fourth year after 2020, each board of county canvassers shall examine the absent voter ballot secrecy envelope containers to be used in any election conducted under this act. The board of county canvassers shall designate on the absent voter ballot secrecy envelope container that the absent voter ballot secrecy envelope container does or does not meet the requirements under subsection (3). An absent voter ballot secrecy envelope container that is not approved by a board of county canvassers must not be used to store and secure any absent voter ballot secrecy envelopes.

(5) A city or township clerk may procure, at the expense of the respective city or township, absent voter ballot secrecy envelope containers that are approved under this section.

(6) A city or township clerk who uses or permits the use of an absent voter ballot secrecy envelope container that is not approved under this section is guilty of a misdemeanor.

Sec. 765. (1) A Except as otherwise provided in subsection (6), a clerk who receives an absent voter ballot return envelope containing the marked ballots of an absent voter shall not open that envelope before delivering the envelope to the board of election inspectors as provided in this section. The Except as otherwise provided in subsection (6), the city or township clerk shall safely keep in his or her office until election day any absent voter ballot return envelopes received by the clerk before election day containing the marked ballots of an absent voter.

(2) Before the opening of the polls on election day or as soon after the opening of the polls as possible, the clerk shall deliver the absent voter ballot return envelopes to the chairperson or other member of the board of election inspectors in the absent voter's precinct, together with the signed absent voter ballot applications received by the clerk from any voters of that precinct and the clerk's list or record kept relative to those absent voters. However, if higher numbered ballots are used under section 717, the clerk shall retain the applications and lists in his or her office and shall keep the applications and lists open to public inspection at all reasonable hours. Absent voter ballots must not be tabulated before the opening of the polls on election day.

(3) The city or township clerk, or authorized designee of the clerk, shall call for and receive absent voter ballots from the post office at which the city or township clerk regularly receives mail addressed to the city or township clerk on election day. Any envelopes containing absent voter ballots that are received from the post office or from voters who voted by absentee ballot in person in the clerk's office on election day must be delivered to the board of election inspectors or the absent voter counting boards to be tabulated.

(4) If a marked absent voter ballot is received by the clerk after the close of the polls, the clerk shall plainly mark the envelope with the time and date of receipt and shall file the envelope in his or her office.

(5) On or before 8 a.m. on election day, the clerk shall post in the clerk's office or otherwise make public the number of absent voter ballots the clerk distributed to absent voters and the number of absent voter ballot return envelopes containing the marked ballots of absent voters received by the clerk before election day and to be delivered to the board of election inspectors or the absent voter counting boards under this act. On or before 9 p.m. on election day, the clerk shall post in the clerk's office or otherwise make public the number of absent voter ballot return envelopes containing the marked ballots of absent voters received by the clerk on election day and delivered to the board of election inspectors, under subsection (3), along with the total number of absent voter ballot return envelopes containing the marked ballots of absent voters received by the clerk both before and on election day and delivered to the board of election inspectors or the absent voter counting boards under this act. As soon as possible after all precincts in the city or township are processed, the clerk shall post in the clerk's office or otherwise make public the number of absent voter ballot return envelopes containing the marked ballots of absent voters received by the election inspectors at the precincts on election day, along with the total number of absent voter ballot return envelopes containing the marked ballots of absent voters received in the city or township for that election. This subsection applies only to elections in which a federal or state office appears on the ballot.

(6) If the clerk of a city or township with a population of 40,000 or more provides written notice in compliance with this subsection to the secretary of state 40 days or more before election day, that city or township clerk, or his or her authorized designee, may between the hours of 9 a.m. and 5 p.m. on the day before election day perform certain absent voter ballot pre-processing activities as described in this subsection. The written notice provided to the secretary of state must include the location and hours that the absent voter ballot return envelopes will be opened in that city or township. The secretary of state shall post any written notice received from the clerk of a city or township under this subsection on the department of state website. After providing written notice to the secretary of state in compliance with this subsection, a city or township clerk, or his or her authorized designee, is only authorized to open absent voter ballot return envelopes on the day before election day and is not authorized to remove absent voter ballots from the absent voter ballot secrecy envelopes. The opening of absent voter ballot return envelopes must be done at a location designated by the city or township clerk, and the location and opening of absent voter ballot return envelopes must be accessible to challengers as described in section 730. Once the absent voter ballot return envelopes have been opened as provided in this subsection, the absent voter ballot secrecy envelopes containing the absent voter ballots to be counted must be stored and secured in an absent voter ballot secrecy envelope container, as described in section 24k, and sealed. The city or township clerk shall record the seal number and follow all other policies and procedures adopted by the secretary of state regarding absent voter ballots. The city or township clerk shall store the absent voter ballot secrecy envelope container containing the absent voter ballot secrecy envelopes in a secure location until election day.

Sec. 765a. (1) If a city or township decides to use absent voter counting boards, the board of election commissioners of that city or township shall establish an absent voter counting board for each election day precinct in that city or township. The ballot form of an absent voter counting board must correspond to the ballot form of the election day precinct for which it is established. After the polls close on election day, the county, city, or township clerk responsible for producing the accumulation report of the election results submitted by the boards of precinct election inspectors shall format the accumulation report to clearly indicate all of the following:

(a) The election day precinct returns.

(b) The corresponding absent voter counting board returns.

(2) The board of election commissioners shall establish the absent voter counting boards. The board of election commissioners shall appoint the election inspectors to those absent voter counting boards not less than 21 days or more than 40 days before the election at which they are to be used. Sections 673a and 674 apply to the appointment of election inspectors to absent voter counting boards under this section. The board of election commissioners shall determine the number of ballots that may be expeditiously counted by an absent voter counting board in a reasonable period of time, taking into consideration the size and complexity of the ballot to be counted pursuant to the guidelines of the secretary of state. Combined ballots must be regarded as the number of ballots as there are sections to the ballot.

(3) If more than 1 absent voter counting board is to be used, the city or township clerk shall determine the number of electronic voting systems or the number of ballot boxes and the number of election inspectors to be used in each of the absent voter counting boards and to which absent voter counting board the absent voter ballots for each precinct are assigned for counting.

(4) In a city or township that uses absent voter counting boards under this section, absent voter ballots must be counted in the manner provided in this section and absent voter ballots must not be delivered to the polling places. The board of election commissioners shall provide a place for each absent voter counting board to count the absent voter ballots. Section 662 applies to the designation and prescribing of the absent voter counting place or places in which the absent voter counting board performs its duties under this section, except the location may be in a different jurisdiction if the county provides a tabulator for use at a central absent voter counting board location in that county. The places must be designated as absent voter counting places. Except as otherwise provided in this section, laws relating to paper ballot precincts, including laws relating to the appointment of election inspectors, apply to absent voter counting places. The provisions of this section relating to placing of absent voter ballots on electronic voting systems apply. More than 1 absent voter counting board may be located in 1 building.

(5) The clerk of a city or township that uses absent voter counting boards shall supply each absent voter counting board with supplies necessary to carry out its duties under this act. The supplies must be furnished to the city or township clerk in the same manner and by the same persons or agencies as for other precincts.

(6) Absent voter ballots received by the clerk before election day must be delivered to the absent voter counting board by the clerk or the clerk's authorized assistant at the time the election inspectors of the absent voter counting boards report for duty, which time must be established by the board of election commissioners. Absent voter ballots received by the clerk before the time set for the closing of the polls on election day must be delivered to the absent voter counting boards. Absent Except as otherwise provided in section 765(6), absent voter ballots must be delivered to the absent voter counting boards in the sealed absent voter ballot return envelopes in which they were returned to the clerk. Written or stamped on each of the return envelopes must be the time and the date that the envelope was received by the clerk and a statement by the clerk that the signatures of the absent voters on the envelopes have been checked and found to agree with the signatures of the voters on the registration cards or the digitized signatures of voters contained in the qualified voter file as provided under section 766. If a signature on the registration card or a digitized signature contained in the qualified voter file and on the absent voter ballot return envelope does not agree as provided under section 766, if the absent voter failed to sign the envelope, or if the statement of the absent voter is not properly executed, the clerk shall mark the envelope "rejected" and the reason for the rejection and shall place his or her name under the notation. An envelope marked "rejected" must not be delivered to the absent voter counting board but must be preserved by the clerk until other ballots are destroyed in the manner provided in this act. The clerk shall also comply with section 765(5).

(7) This chapter does not prohibit an absent voter from voting in person within the voter's precinct at an election, notwithstanding that the voter may have applied for an absent voter ballot and the ballot may have been mailed or otherwise delivered to the voter. The voter, the election inspectors, and other election officials shall proceed in the manner prescribed in section 769. The clerk shall preserve the canceled ballots for 2 years.

(8) The absent voter counting boards shall process the ballots and returns in as nearly as possible the same manner as ballots are processed in paper ballot precincts. The poll book may be combined with the absent voter list or record required by section 760, and the applications for absent voter ballots may be used as the poll list. The processing and tallying of absent voter ballots may commence at 7 a.m. on the day of the election.

(9) An election inspector, challenger, or any other person in attendance at an absent voter counting place at any time after the processing of ballots has begun shall take and sign the following oath that may be administered by the chairperson or a member of the absent voter counting board:

"I (name of person taking oath) do solemnly swear (or affirm) that I shall not communicate in any way any information relative to the processing or tallying of votes that may come to me while in this counting place until after the polls are closed.".

(10) The oaths administered under subsection (9) must be placed in an envelope provided for the purpose and sealed with the red state seal. Following the election, the oaths must be delivered to the city or township clerk. Except as otherwise provided in subsection (12), a person in attendance at the absent voter counting place shall not leave the counting place after the tallying has begun until the polls close. A person who causes the polls to be closed or who discloses an election result or in any manner characterizes how any ballot being counted has been voted in a voting precinct before the time the polls can be legally closed on election day is guilty of a felony.

(11) Voted absent voter ballots must be placed in an approved ballot container, and the ballot container must be sealed in the manner provided by this act for paper ballot precincts. The seal numbers must be recorded on the statement sheet and in the poll book.

(12) Subject to this subsection, a local election official who has established an absent voter counting board, the deputy or employee of that local election official, an employee of the state bureau of elections, a county clerk, an employee of a county clerk, or a representative of a voting equipment company may enter and leave an absent voter counting board after the tally has begun but before the polls close. A person described in this subsection may enter an absent voter counting board only for the purpose of responding to an inquiry from an election inspector or a challenger or providing instructions on the operation of the counting board. Before entering an absent voter counting board, a person described in this subsection must take and sign the oath prescribed in subsection (9). The chairperson of the absent voter counting board shall record in the poll book the name of a person described in this subsection who enters the absent voter counting board. A person described in this subsection who enters an absent voter counting board and who discloses an election result or in any manner characterizes how any ballot being counted has been voted in a precinct before the time the polls can be legally closed on election day is guilty of a felony. As used in this subsection, "local election official" means a county, city, or township clerk.

(13) The secretary of state shall develop instructions consistent with this act for the conduct of absent voter counting boards. The secretary of state shall distribute the instructions developed under this subsection to city and township clerks 40 days or more before a general election in which absent voter counting boards will be used. A city or township clerk shall make the instructions developed under this subsection available to the public and shall distribute the instructions to each challenger in attendance at an absent voter counting board. The instructions developed under this subsection are binding upon the operation of an absent voter counting board used in an election conducted by a county, city, or township.

Sec. 765b. (1) Not later than 2 p.m. on the Saturday immediately before an election, an elector may submit a signed, written statement to his or her city or township clerk requesting that the clerk do both of the following:

(a) Spoil the elector's absent voter ballot.

(b) Provide or mail a new absent voter ballot to the elector.

(2) Upon receipt of a signed, written statement from an elector as described in subsection (1), the city or township clerk shall mark the absent voter ballot return envelope of that elector as "spoiled" and retain the envelope. In addition, the city or township clerk shall provide or mail a new absent voter ballot to that elector.

(3) An Except as otherwise provided in subsection (9), an elector who has returned an absent voter ballot may, before 4 p.m. on the day before an election except Sunday or a legal holiday, appear in person at his or her city or township clerk's office to do both of the following:

(a) Spoil his or her absent voter ballot by submitting a signed, written statement to the city or township clerk indicating that the elector wishes to have his or her absent voter ballot spoiled.

(b) Vote a new absent voter ballot in the clerk's office.

(4) Upon receipt of the signed, written statement from an elector as described in subsection (3)(a), the city or township clerk shall mark the absent voter ballot return envelope of that elector as "spoiled" and retain the envelope. In addition, the city or township clerk shall issue the elector a new absent voter ballot that must be voted by the elector in the clerk's office.

(5) Not later than 2 p.m. on the Saturday immediately before an election, an elector who has lost his or her absent voter ballot or not yet received his or her absent voter ballot in the mail may submit a signed, written statement to his or her city or township clerk requesting that the clerk do both of the following:

(a) Spoil the elector's absent voter ballot.

(b) Provide or mail a new absent voter ballot to the elector.

(6) Upon receipt of a signed, written statement from an elector as described in subsection (5), the city or township clerk shall indicate in the qualified voter file that the original ballot is spoiled. In addition, the city or township clerk shall provide or mail a new absent voter ballot to that elector.

(7) An elector who has lost his or her absent voter ballot or not yet received his or her absent voter ballot in the mail may, before 4 p.m. on the day before an election except Sunday or a legal holiday, appear in person at his or her city or township clerk's office to do both of the following:

(a) Spoil his or her absent voter ballot by submitting a signed, written statement to the city or township clerk indicating that the elector wishes to have his or her absent voter ballot spoiled.

(b) Vote a new absent voter ballot in the clerk's office.

(8) Upon receipt of the signed, written statement from an elector described in subsection (7)(a), the city or township clerk shall indicate in the qualified voter file that the original ballot is spoiled. In addition, the city or township clerk shall issue the elector a new absent voter ballot that must be voted by the elector in the clerk's office.

(9) If the clerk of a city or township provides written notice to the secretary of state as provided in section 765(6) to allow the city or township clerk, or his or her authorized designee, to open absent voter ballot return envelopes between the hours of 9 a.m. and 5 p.m. on the day before election day, an elector who has voted and returned his or her absent voter ballot to the city or township clerk is not permitted to spoil his or her absent voter ballot after 9 a.m. on the day before election day.