SB0401: SUMMARY OF INTRODUCED BILL IN COMMITTEE (Date Completed: 4-30-24)

INTRODUCTION

Collectively, the bills would enact new, and modify existing, election law. Senate Bill 401 would enact the "State Voting Rights Act" (MVRA) to prohibit a local government from imposing any law, practice, policy, or method of election that led to a disparity in voter participation between members of a protected class and other members of the electorate or that would impair the ability of a protected class to participate in the political process or otherwise influence the outcome of an election. The bill would establish court proceedings regarding a violation of the Act and prescribe a process for local governments to remedy violations with approval from the Secretary of State (SOS). The bill also would require the SOS to oversee the implementation of election laws or policies proposed by any local government that had a history of violating voting rights. Additionally, the bill would allow a disabled elector to bring an action in a county circuit court if the local government in which they resided violated a State or Federal law involving the rights of disabled electors. Lastly, the bill would establish the Voter Education Fund.

Senate Bill 402 would require the SOS, in partnership with at least one university in the State, to create the Michigan Voting and Elections Database and Institute to collect election data and provide research and training on voting systems and election administration. Senate Bill 403 would require certain local governments to provide language assistance for elections. Senate Bill 404 would allow voters over 65 years of age or an elector who had a disability to request curbside voting at a polling place or early voting site. It also would allow a nonprofit or nonpartisan entity to provide transportation for voting purposes.

Senate Bills 402, 403, and 404 are tie-barred to Senate Bill 401.

BRIEF FISCAL IMPACT

The bills would result in significant costs to the Department of State and to local governments. The Department of State estimates the bills could require nine to 14 full-time equivalents (FTEs) to approve MVRA resolutions, review preclearance applications, translate voting materials, and create the Database and Institute. Each FTE would cost an estimated $150,000 annually. The cost to local governments is indeterminate and variable. Under the bills, local governments could incur costs associated with reporting election data to the Institute and Database, providing language assistance to voters, hiring additional election inspectors and monitors, and reimbursing plaintiffs for notification letters.

MCL 168.726 et al. (S.B. 404) Legislative Analyst: Abby Schneider

Fiscal Analyst: Joe Carrasco, Jr.; Michael Siracuse

CONTENT

Senate Bill 401 would enact the "State Voting Rights Act" to do the following:

-- Prohibit a local government or State agency from imposing any law, practice, policy, or method of election that would lead to a disparity in voter participation between a protected class and other members of the electorate or that would impair the ability of a protected class to participate in the political process or otherwise influence the outcome of an election.

-- Specify actions taken by a local government that would be considered violations of the Act.

-- Allow the legislative body of a local government to adopt a MVRA resolution providing for a remedy to a potential violation of the Act after receiving approval of the resolution from the SOS.

-- Prescribe generally the process that the SOS would have to follow in approving or denying a MVRA resolution and allow it to adopt rules concerning the process.

-- Prescribe the guidelines a court could or could not use to determine whether racially polarized voting by protected class members in a local government occurred.

-- Prescribe the guidelines a court could or could not use to determine whether an impairment of the right to vote for any protected class member, or of the opportunity or ability of protected class members to influence the outcome of elections, had occurred.

-- Require the SOS to create annually a list of covered jurisdictions whose changes to elections laws or practices would be considered covered policies that would have to be approved by the SOS or the Court of Claims before taking effect.

-- Prescribe the process for the SOS or the Court of Claims to approve or deny preclearance for a covered policy and allow either determination to be appealed.

-- Grant the Court broad authority to order adequate remedies that were tailored to address a violation in any action brought under the Act or under Article II of the State Constitution.

-- Allow a disabled elector, or an organization representing disabled electors, to bring an action in the circuit court of a county to seek the appointment of a monitor for future elections conducted by a local government if that local government had violated a State or Federal law involving the rights of disabled electors.

-- Prescribe the appointment and duties of election monitors.

-- Create the Voter Education Fund in the State Treasury and require the Department of Civil Rights (MDCR) to expend money from the Fund, on appropriation, only for the purposes that the bill would prescribe, such as conducting public education campaigns to inform electors about changes to voting laws.

Senate Bill 402 would enact the "Voting and Elections Database and Institute Act" to do the following:

-- Require the SOS to enter into an agreement with one or more universities in the State to create the Michigan Voting and Elections Database and Institute by November 5, 2025.

-- Require the Database and Institute to provide a center for research, training, and information on voting systems and election administration.

-- Require the Database and Institute to make available all relevant election and voting data and records for at least the previous 12-year period at no cost.

-- Permit the data, information, and estimates maintained by the Database and Institute to be used as evidence.

-- Require each local government to transmit to the Database and Institute specified information within 90 days after an election.

Senate Bill 403 would enact the "Language Assistance for Elections Act" to do the following:

-- Require a local government to provide language assistance for elections conducted in that local government if it met certain conditions.

-- Require the SOS to post on its website a list of each local government required to provide language assistance and the required languages.

-- Require a local government to provide language assistance equal in quality to English for elections in each designated language and provide related materials in each designated language as translated by a certified translator, or, if a language were unwritten, provide only oral instructions and assistance.

-- Allow any individual or entity aggrieved by a violation of language assistance requirements to file a cause of action in the Court of Claims.

-- Grant actions brought under the Act expedited pretrial and trial proceedings and allow them to receive an automatic calendar preference.

Senate Bill 404 would amend the Michigan Election Law to do the following:

-- Allow an elector who was 65 years of age or older, or an elector who had a disability, to request to vote using curbside voting at the elector's polling place or early voting site and prescribe the process for curbside voting.

-- Prescribe requirements for curbside voting, including physical location.

-- Allow an elector to seek language assistance for election purposes and bring an individual into the voting booth or compartment to assist that elector in voting.

-- Allow a nonprofit or nonpartisan entity that was not a political committee to offer or provide transportation for an elector for voting purposes.

-- Delete a provision prohibiting an individual from hiring a mode of transportation to convey non-disabled voters to an election.

-- Allow an individual to provide necessities to electors in line to vote at a polling place location, an early voting site, or a city or township clerk's office.

-- Delete a provision that prescribes a misdemeanor for anonymously making an intentionally false, deceptive, or malicious assertion, representation, or statement of fact concerning a candidate for public office in the State.

Senate Bill 404 also would repeal Section 579 of the Michigan Election Law, which requires the board of election inspectors to reject a ballot if the elector, after marking it, exposes it to any person, other than a minor child accompanying that elector, in a manner likely to reveal the name of any candidate for whom the elector voted.

Senate Bill 401

General Prohibition Against Election Impairment

The bill would prohibit a local government or State agency from imposing any qualification for eligibility to be an elector; any other prerequisite to voting; any ordinance, regulation, or other law regarding the administration of elections; or any standard, practice, procedure, or policy in a manner that resulted in, would result in, or was intended to result in, either of the following:

-- A disparity in voter participation, access to voting opportunities, or the opportunity or ability to participate in the political process between members of a protected class and other members of the electorate.

-- Based on the totality of the circumstances, an impairment of the opportunity or ability of a protected class member to participate in the political process and elect candidates of the elector's choice or otherwise influence the outcome of elections.

The bill provides the following examples of an impairment:

-- A local government closed, moved, or consolidated one or more precincts, polling places, or absent voter ballot drop boxes in a manner that impaired the right to vote of members of a protected class or resulted in a disparity in geographic access between members of a protected class and other members of the electorate.

-- A local government changed the time or date of an election in a manner that impaired the right to vote of members of a protected class, including making the change without proper notice as required by law.

-- A local government failed to provide voting or election materials in languages other than English as required by Federal or State law.

Under the bill, "disparity" would mean any statistically significant variance that is not de minimis and is supported by validated methodologies.

"Protected class" would mean individuals of a racial, color, or language minority group, as that term is defined under the Federal Voting Rights Act, and includes groups whose members have been subject to protection under a consent decree ordered by a Federal court in a suit alleging a violation of Section 2 of the Federal Voting Rights Act, and individuals who are members of a racial category that has been officially recognized by the United States Census Bureau. For more information, see BACKGROUND.

Impairment in Methods of Election

Under the bill, a local government could not employ or modify any method of election that impaired the opportunity of protected class members to elect candidates of the protected class member's choice, or otherwise influenced the outcome of elections, as a result of diluting the vote of those protected class members.

A local government would violate this prohibition if it used an at-large method of election, a district-based method of election, or an alternative method of election, and either of the following occurred:

-- The voting eligible population of the local government exhibited racially polarized voting and the method of election resulted in a dilutive effect on members of a protected class.

-- Based on the totality of the circumstances, the ability of protected class members to nominate or elect candidates of the protected class member's choice, or otherwise influence the outcome of elections, was impaired.

"At-large method of election" would mean a method of electing candidates to the legislative body of a local government in which candidates are voted on by all electors of the local government. The term would not include any alternative method of election.

"District-based method of election" would mean a method of electing candidates to the legislative body of a local government in which, for local governments divided into districts, a candidate for any district is required to reside in the district and candidates representing or seeking to represent the district are voted on by only the electors of the district.

"Alternative method of election" would mean a method of electing candidates to the legislative body of a local government other than an at-large method of election or a district-based method of election and includes, but is not limited to, proportional ranked-choice voting, cumulative voting, limited voting, or hybrid voting systems that incorporate aspects of at-large and district-based methods of election.

"Racially polarized voting" would mean voting in which the candidate or electoral choice preferred by protected class members diverges from the candidate or electoral choice preferred by other electors.

A violation also would occur if the local government modified the method of election, such as by amending the number of districts or the size of the legislative body, or implemented a reorganization, such as a division of that local government and either of the following occurred:

-- The modification had the effect, or was motivated by the intent, of impairing the opportunity of protected class members to influence the outcome of elections.

-- Based on the circumstances, the opportunity of protected class members to nominate or elect candidates of the protected class member's choice, or otherwise influence the outcome of elections, was impaired because of the modification.

MVRA Resolutions for Remedy of Violations

Except as provided below, before commencing an action against a local government alleging a violation of the Act, a prospective plaintiff would have to send a notification letter to the local government asserting that the local government could be in violation of the Act. The prospective plaintiff could not commence an action against that local government within 50 days after sending that notification letter.

The legislative body of a local government could adopt a MVRA resolution providing for a remedy to a potential violation of the Act after a notification letter had been sent or on its own volition. Before adopting a MVRA resolution, the local government would have to hold at least one public hearing to gather input regarding the remedy proposed in the resolution. If this remedy replaced an at-large method of election with a district-based method of election or alternative method of election or adopted a new districting plan, the local government would have to hold at least two hearings.

At least seven days before any public hearing, the local government would have to publish and make publicly available the text of the proposed MVRA resolution and all relevant information concerning any remedy included in it. Additionally, the local government would have to conduct outreach to members of the public, including to language minority groups, to explain the process and invite participation in any public hearing. If a proposed MVRA resolution were revised after publication, the local government would have seven days before the resolution's adoption to make the text of the revised MVRA resolution and additional information publicly available.

The bill would require a MVRA resolution to do all the following:

-- Identify the potential violation of the Act by the local government.

-- Identify a specific remedy to the potential violation.

-- Affirm the local government's intent to enact and implement the remedy.

-- Establish specific measures that the local government would take to facilitate enactment and implementation of the remedy.

-- Provide a schedule for the enactment and implementation of the remedy.

If a local government adopted a MVRA resolution, it would have to submit the adopted MVRA resolution to the SOS for authorization, and, if requested by the SOS, specified transcripts, records, and documentation associated with the adoption process. Within 10 days of receiving a MVRA resolution and other documentation, the SOS would have to publish that resolution and documentation on its website. The SOS would have to offer the public an opportunity to provide written comment on any MVRA resolution and documentation submitted. Between 30 and 60 days after receiving a MVRA resolution, the SOS would have to provide a report and determination as to whether the remedy proposed in the MVRA resolution was authorized.

SOS Authorization of a MVRA Resolution

Under the Act, the SOS could authorize a remedy proposed in a MVRA resolution only if it concluded that a potential violation existed and the remedy proposed would successfully resolve the potential violation, would not violate the State Constitution or any Federal law, would not diminish the opportunity or ability of protected class members to participate in the political process or otherwise influence the outcome of elections, and was feasible.

If the SOS authorized the proposed remedy, the local government could adopt it. If not, the SOS could identify one or more alternate remedies. The local government may adopt any alternate remedy identified by the SOS. If the SOS did not respond to the local government's submission of a MVRA resolution, the local government could not adopt the proposed remedy.

These provisions would not apply to any remedy identified in a MVRA resolution that the local government had authority to adopt and implement under applicable State or local law. Additionally, a determination by the SOS to authorize a remedy identified in a MVRA resolution would not bar a subsequent action challenging the remedy and would not be admissible in, or otherwise be considered by, a court in any action challenging that remedy.

Upon approval of the proposed remedy, a local government would have 90 days to enact and implement a remedy. During this time, a prospective plaintiff who sent a notification letter could not commence an action against that local government.

If a local government enacted and implemented a remedy as described above, a prospective plaintiff who sent the notification letter would be entitled to reimbursement for the reasonable costs to generate the notification letter. The prospective plaintiff would have to provide a demand for reimbursement to the local government within 90 days after the enactment or implementation of the remedy.

Exceptions to SOS Authorization Process

Under the Act, notwithstanding the resolution process described above, a party could bring a cause of action for a violation of the Act under any of the following circumstances:

-- The action was commenced within one year after the adoption of the challenged method of election, ordinance, resolution, rule, policy, standard, regulation, procedure, or law.

-- The prospect of obtaining relief under the prior process would be futile.

-- Another party had already submitted a notification letter alleging a substantially similar violation and that party was eligible to bring a cause of action.

-- Following the party's submission of a notification letter, the local government had adopted a MVRA resolution that identified a remedy that would not remedy the violation identified in the party's notification letter.

-- The party was seeking preliminary relief with respect to an upcoming election.

Court Determinations

The bill provides procedures, guidelines, and tests to determine whether a violation of the Act occurred. Generally, the guidelines prioritize evidence compiled from elections conducted prior to the filing of a cause of action under the Act and prohibit the use of evidence concerning certain factors that could cause racially polarized voting, such as partisan explanations.

In determining whether the political rights for any protected class member had been violated, a court could consider factors that included any of the following:

-- Whether members of the protected class typically voted at a lower rate than other electors.

-- The history of discrimination affecting members of the protected class.

-- The extent to which members of a protected class were disadvantaged, or otherwise bore the effects of past public or private discrimination, in any areas that could hinder the member's ability to participate effectively in the political process, including education, employment, and health, among other factors.

-- The use of overt or subtle racial appeals in political campaigns or by government officials.

-- The extent to which members of a protected class had been elected to office, contributed to political campaigns at lower rates, or faced barriers with respect to accessing the ballot, among other barriers.

The court could not consider in its determination of a violation any of the following:

-- The total number or share of members of a protected class on whom a challenged method of election, law, resolution, or procedure did not impose a material burden.

-- The degree to which the challenged method of election, law, resolution, or procedure had a long pedigree or was in widespread use at some earlier date.

-- The use of an identical or similar challenged method of election, law, resolution, or procedure in another local government.

-- The availability of other forms of voting unaffected by the challenged method of election, law, resolution, or procedure to all members of the electorate, including members of the protected class.

-- A deterrent effect on potential criminal activity by individual electors, if those crimes had not occurred in the local government in substantial numbers, or if the connection between the challenged policy and any claimed deterrent effect were not supported by substantial evidence.

-- Mere invocation of interests in voter confidence or prevention of fraud.

-- A lack of evidence concerning the intent of electors, elected officials, or public officials to discriminate against protected class members.

Evidence of these factors would be best evidenced if it related to the local government in which the alleged violation occurred but would still hold probative value if the evidence related to the geographic region in which that local government was located or to the State.

Covered Policies and Jurisdictions; Generally

The bill would define "covered policy" as any new or modified qualification for admission as an elector, prerequisite to vote, or law, ordinance, regulation, standard, practice, procedure, or policy concerning any of the following:

-- Districting or redistricting in a local government.

-- Method of election for a local government.

-- Governmental reorganization; for example, dissolution, consolidation, or division of a local government.

-- Removal of individuals from voter registration lists and other activities concerning the cancellation or denial of voter registration.

-- Voter challenges.

-- Hours, locations, or number of polling places or absent voter ballot drop boxes.

-- Reorganization of precincts, including assignment of precincts to polling places.

-- Assistance offered to protected class members.

-- Providing translation or interpretation services, including creating or distributing voting materials, to electors in any language other than English.

-- Aiding electors with disabilities, including the creating or distributing of voting materials for electors with disabilities.

-- Any additional subject matter the SOS identified for inclusion, under a rule promulgated by the SOS under the Administrative Procedures Act, if the SOS determined that any qualification for admission as an elector, prerequisite to vote, or law, ordinance, regulation, standard, practice, or procedure concerning that subject matter may have the effect of diminishing the right to vote of any protected class member or have the effect of violating the Act.

The bill would define "covered jurisdiction" as any of the following:

-- Any local government that in the previous 25 years has been subject to any court order, including a court-approved consent decree or settlement, or government enforcement action based on a finding of any violation of the Act, the Federal Voting Rights Act, any State or Federal civil rights law, the Fifteenth or Fourteenth Amendment of the United States Constitution, if the violation concerned the right to vote or a pattern, practice, or policy of discrimination against any protected class, or any other settlement of any action alleging a violation in which the local government conceded that a violation occurred.

-- Any local government that in the previous five years has failed to comply with obligations to provide data or information to the Michigan Voting and Elections Database and Institute (see Senate Bill 402).

-- Any local government that in the previous 25 years was found to have enacted or implemented a covered policy without obtaining the required preclearance.

-- Any local government that in any year in the previous ten years contained at least 1,000 eligible electors of a protected class, or in which members of any protected class constituted at least 10% of the eligible voter population of the local government, and the percentage of electors of that protected class in the local government that participated in any general election for any local government office or who were registered to vote was at least 10% lower than the percentage of all electors in the local government that participated in the election or were registered to vote.

Before enacting any covered policy, a covered jurisdiction would first have to obtain preclearance for that policy either from the SOS or from the Court of Claims. On at least an annual basis, the SOS would have to determine which local governments were covered jurisdictions, publish on the Department of State's website a list of those local governments, and provide notice to each of those local governments.

If a covered jurisdiction sought preclearance of a covered policy from the SOS, the covered jurisdiction would have to submit the covered policy to the SOS and could obtain preclearance. If the SOS received any submission, it would have to, as soon as practicable, but no later than 10 days after receiving the covered policy, publish on the Department of State's website the covered policy. The SOS would have to allow members of the public an opportunity to comment on the published submission and to sign up to receive notifications or alerts regarding the submission of that covered policy for preclearance. It also would have to review the covered policy and any public comment on the covered policy and provide a report and determination as to whether preclearance was approved or denied. The time for review would run concurrently with the time period for public comment.

For any covered policy concerning the location of polling places or absent voter ballot drop boxes, the time period for public comment would be 10 business days. The time period in which the SOS would have to review the covered policy, including any public comment on the covered policy, and make a determination to approve or deny preclearance to the covered policy, would not be more than 30 days after the SOS received the covered policy; however, the SOS could invoke one extension of not more than 20 days to make the determination.

For any covered policy not concerning the location of polling places or absent voter ballot drop boxes, the time period for public comment would be 10 business days, except that, for any covered policy that concerned the implementation of a district-based method of election or an alternative method of election, districting or redistricting plans, or a change to a local government's form of government, the time period would be 20 business days. The period the SOS would have to review the covered policy, including any public comment on the public policy, and decide to approve or deny preclearance to the covered policy, would be not more than 90 days after the SOS received the covered policy; however, the SOS could invoke up to two extensions of not more than 90 days each to make the determination.

Approval or Denial of Covered Policy's Preclearance

Under the Act, the SOS could deny preclearance to a covered policy only if it concluded that the covered policy were more likely than not to diminish the opportunity or ability of protected class members to participate in the political process and elect candidates of the protected class member's choice, or otherwise influence the outcome of elections, or was more likely than not to violate the Act. If the SOS denied preclearance to a covered policy, the covered policy could not be enacted or implemented. If the covered jurisdiction failed to timely comply with reasonable requests by the SOS for additional information, that failure could constitute grounds for the denial of preclearance.

If the SOS approved preclearance to a covered policy, the covered jurisdiction could enact or implement the covered policy no earlier than 10 days following the approval of preclearance for any covered policy concerning the location of polling places or absent voter ballot drop boxes, and no earlier than 30 days following the approval of preclearance for any other covered policy. A determination by the SOS to approve preclearance would not bar a subsequent action challenging the covered policy, and would not be admissible in, or otherwise be considered by, a court in that action.

If the SOS failed to approve or deny preclearance to a covered policy within the set time period, that covered policy would be considered precleared and the covered jurisdiction could enact and implement the covered policy no earlier than 10 days following the approval of preclearance for any covered policy concerning the location of polling places or absent voter ballot drop boxes, and no earlier than 30 days following the approval of preclearance for any other covered policy.

The SOS could designate preclearance as preliminary and approve or deny final preclearance no later than 90 days after receiving the covered policy.

The SOS may adopt rules under the Administrative Procedures Act to establish an expedited, emergency preclearance process under which it may address covered policies that were submitted during or immediately preceding an election as a result of any attack, disaster, emergency, or other exigent circumstance. Any preclearance approved under these rules would be designated preliminary, and the SOS may subsequently approve or deny final preclearance not later than 90 days after receiving the covered policy.

Appeal of a Preclearance Denial

Under the Act, any denial of preclearance by the SOS could be appealed to the Court of Claims. If a covered jurisdiction sought preclearance of a covered policy from the Court of Claims, the covered jurisdiction would have to submit the covered policy to the Court of Claims and could obtain preclearance if the covered jurisdiction also contemporaneously transmitted to the SOS a copy of the covered policy. As soon as practicable, but not later than 10 days after receiving the covered policy, the SOS would have to publish on the Department of State's website the covered policy. The failure by the covered jurisdiction to provide a copy to the SOS would result in an automatic denial of the preclearance.

Notwithstanding the transmission of the copy of the covered policy to the SOS, the Court of Claims would have exclusive jurisdiction over the covered policy. The covered jurisdiction would bear the burden of proof in the Court of Claims' determination as to preclearance. If the Court of Claims received a covered policy, it would have to approve or deny preclearance no later than 90 days after receiving the covered policy.

The Court of Claims could deny preclearance to a covered policy only if the Court of Claims determined that the covered policy was more likely than not to diminish the opportunity or ability of protected class members to participate in the political process and elect candidates of the protected class member's choice, or otherwise influence the outcome of elections, or was more likely than not to violate the Act. If the Court of Claims denied preclearance to a covered policy or failed to decide within 90 days after receiving the covered policy, that covered policy could not be enacted or implemented.

If the Court of Claims approved preclearance for the covered policy, the covered jurisdiction could immediately enact and implement that covered policy. A determination by the Court of Claims to approve preclearance to a covered policy would not be admissible in, or otherwise be considered by, a court in any subsequent action challenging that covered policy.

A denial of preclearance by the Court of Claims could be appealed to the court of appeals. In any proceeding under the Act, the court would have to consider submissions from interested nonparties.

On the request of the SOS, any State entity identified by the SOS as possessing data, statistics, or other information that the SOS required to carry out its duties and responsibilities as provided by the Act would have to provide to the SOS that data, statistics, or information.

If any covered jurisdiction enacted or implemented any covered policy without obtaining preclearance for the covered policy, the SOS, the Attorney General, any individual aggrieved by a violation of the Act or any entity whose membership included aggrieved individuals, any entity whose mission would be frustrated by a violation of the Act, or any entity that would expend resources in order to fulfill its mission as a result of a violation, could file an action in the Court of Claims seeking a declaratory judgment that the covered jurisdiction had violated the Act. In that action, the Court of Claims would have broad authority to order adequate remedies. To the extent the Court of Claims found the covered jurisdiction had violated the Act, the Court of Claims would be encouraged to exercise the court's discretion to impose civil penalties on the local government.

One of the individuals or organization described above, excluding the SOS, could file an action in the Court of Claims under any of the following circumstances:

-- The SOS had identified a list of local governments that were covered jurisdictions that was inconsistent with the requirements of this section.

-- The SOS had failed to properly implement any of the provisions of described above.

-- The SOS had approved preclearance to a covered policy in violation of the provisions described above; however, the covered policy could not yet be enacted or implemented.

Regarding the latter circumstance, any claim brought under this circumstance would have to be brought against the covered jurisdiction and the SOS. In any such claim, the Court of Claims would have discretion to stay the implementation of the covered policy until the Court of Claims could decide whether preclearance should have been approved. Such a claim would not preclude, bar, or limit any other claims that could be brought regarding the covered policy in any way, including claims brought under other provisions of the Act.

In any action brought against the SOS, the Court of Claims would have to evaluate any claims on a de novo basis and could not give deference to the SOS. The Court of Claims would have broad authority to order adequate remedies and to impose any injunctive relief on any party, including the SOS, as the Court of Claims considered necessary to effectuate this section. If the Court of Claims found that the SOS had failed to properly implement any of these provisions or had made any determination that was inconsistent with the provisions of the Act, the Court of Claims would be encouraged to exercise the court's discretion to impose civil penalties on the SOS.

The provisions described above concerning preclearance for covered policies would take effect June 1, 2025.

Adequate Remedies

Generally, the Attorney General, any individual aggrieved by an election impairment violation under the Act, or any interested party whose mission would be frustrated by such violation could file a cause of action in the Court of Claims. The Act would grant the Court of Claims broad discretion when determining remedies. Adequate remedies would include any of the following:

-- Drawing new or revised districting or redistricting plans.

-- Adopting a different method of election, including adopting a district-based or alternative method of election or reasonably increasing the size of the legislative body.

-- Adding voting days, hours, or polling places.

-- Eliminating staggered elections so that all members of the legislative body were elected at the same time.

-- Ordering a special election.

-- Restoring or adding individuals to a voter registration list or requiring expanded opportunities for admitting electors.

-- Reorganizing a local government.

-- Imposing civil fines and damages.

-- Any other form of declaratory or injunctive relief that, in the court's judgment, was tailored to address the violation.

In any action brought under the Act or under Article II of the State Constitution, the court would have to consider remedies proposed by any parties and interested nonparties and could not provide deference or priority to a proposed remedy offered by the defendant or the local government simply because the remedy had been proposed by the defendant or the local government. Additionally, the court would have the authority to order remedies that could be inconsistent with other provisions of State or local law when the inconsistent provisions of law would otherwise preclude the court from ordering an adequate remedy.

Rights of Disabled Electors

A disabled elector, or an organization whose mission included advocating on behalf of disabled electors, could bring an action in the circuit court of the county in which that local government was located seeking the appointment of a monitor for future elections conducted by that local government, if the local government met one of the following circumstances:

-- The local government had been, in the previous 15 years, subject to any court order or government enforcement action in State or Federal court, or any administrative tribunal, based on a finding of any violation of a State or Federal law involving, in whole or in part, the rights of disabled electors.

-- The local government had, in the previous 15 years, rendered moot a State or Federal lawsuit regarding an alleged violation of a State or Federal law involving, in whole or in part, the rights of disabled electors in a manner that provided effective relief that remedied the alleged violations.

-- The local government had, in the previous 15 years, settled a State or Federal lawsuit regarding an alleged violation of a State or Federal law involving, in whole or in part, the rights of disabled electors, and conceded liability as part of the settlement.

"Disabled elector" would mean an elector who has a disability as that term is defined under Section 103 of the Persons with Disabilities Civil Rights Act: a determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder; a history of a determinable physical or mental characteristic; or being regarded as having a determinable physical or mental health characteristic.

If the circuit court determined that any of the conditions above had been met, the circuit court would have to order the appointment of a monitor for that local government, at the local government's expense, for a period of at least 10 years. The monitor's duties would include investigating all complaints that were submitted to the circuit court or to the monitor regarding the local government's compliance with a State or Federal law that, in whole or in part, involved the rights of disabled electors.

If the monitor determined that a complaint indicated that the local government had violated or would likely violate a State or Federal law that involved the rights of disabled electors, the monitor would have to inform the circuit court of the violation or likely violation. The circuit court would have to order all relief that was necessary to remedy the violation. If the circuit court found that a violation had already occurred, it would have to order a penalty of $1,000 payable to an elector whose State or Federal rights were violated if that elector reported the violation to the monitor.

If the monitor received a report of an alleged violation within 40 days before an election and the report indicated that a disabled elector was unable to vote because of the alleged violation, the monitor would have to bring the issue to the circuit court's attention immediately. The circuit court would have to order a hearing on an emergency basis to ensure that the disabled elector was not disenfranchised. This provision would not prohibit an elector from filing a separate lawsuit to enforce State or Federal law if the State or Federal law provided that elector with a cause of action.

Additionally, the monitor would have to undertake any investigations or inspections that the monitor considered reasonably necessary during the 180 days before any election administered by the local government to ensure that the local government was in full compliance with any State or Federal law involving the rights of disabled electors.

No less than 90 days before any election administered by the local government, the monitor would have to produce a report for the circuit court regarding the local government's compliance, anticipated compliance, or lack of compliance, with any State or Federal law involving the rights of disabled electors. If the monitor's report indicated any concerns that the local government would not comply with any State or Federal law involving the rights of disabled electors, the circuit court would have to hold a hearing to address those concerns and order any relief the circuit court determined necessary to ensure the local government's full compliance with the laws. The hearing and any orders resulting from those hearings would have to occur in sufficient time before the election to ensure that electors were not disenfranchised.

On election day, and during the early voting period, the monitor would have to be available to receive reports by disabled electors, or any organization representing disabled electors, of any violations of a State or Federal law involving the rights of disabled electors. The monitor would have to bring any creditable reports of violations to the circuit court's attention immediately, and if the circuit court found that a violation of State or Federal law had likely occurred or was likely occurring, the circuit court would have to issue emergency relief the same day, as necessary, to ensure that the elector was not disenfranchised.

If the circuit court determined that a violation of a State or Federal law involving the rights of disabled electors had occurred, the remedy would have to include extending the term of the monitor at least through the next election administered by the local government.

A monitor would have to be an individual who met all the following requirements:

-- Had extensive knowledge of and experience with the rights of disabled individuals.

-- Had an established history of advocating on behalf of disabled individuals.

-- Had significant knowledge regarding election law.

A monitor would have to bill the local government for the monitor's time on an hourly basis at a rate that was customary in the State for an individual with the required experience and qualifications.

In any State lawsuit concerning an alleged violation of any State or Federal law involving the rights of disabled electors, the court would have to order the appointment of a monitor as part of the remedy if the court found that a violation had occurred. In any Federal lawsuit concerning an alleged violation of any State or Federal law involving the rights of disabled electors, the court could order that the appointment of a monitor be a part of the remedy to the extent compatible with Federal law. If the Federal court declined to appoint a monitor, any appropriate plaintiff could bring a subsequent action in the appropriate circuit court as provided based on the finding of liability in the previous Federal lawsuit.

Additional Provisions

In any action brought under the Act, the court would have to award reasonable attorney fees and litigation costs, including expert witness fees and expenses, to the party, other than the State or a local government, that filed and prevailed in the action. The party that filed the action would be considered to have prevailed if, because of the action, the party against whom the action was filed had yielded some or all the relief sought in the action. If the party against whom the action was filed prevailed in the action, the court could not award that party any costs unless the court found the action was frivolous, unreasonable, or without merit.

Actions brought under the Act would be subject to expedited pretrial and trial proceedings and would receive an automatic calendar preference. In any action alleging a violation of the Act in which a plaintiff party sought preliminary relief with respect to an upcoming election, the court would have to grant relief if it determined that the plaintiffs were more likely than not to succeed on the merits and it was possible to implement an adequate remedy that would resolve the alleged violation in the upcoming election.

Voter Education Fund

The Act would create the Voter Education Fund in the State Treasury. The State Treasurer could receive money or other assets from any source for deposit into the Fund. The State Treasurer would have to direct the investment of money in the Fund and credit interest and earnings from the investments to the Fund. Money in the Fund at the close of the fiscal year would remain in the Fund and would not lapse to the General Fund.

The MDCR would be the administrator of the Voter Education Fund for audits of the Fund. The MDCR would have to spend money from the Fund, on appropriation, only for one or more of the following purposes:

-- Developing and distributing educational materials on voting rights and the voting process.

-- Conducting public education campaigns to inform electors about changes to voting laws, procedures, or polling locations and to counteract false or misleading information.

-- Providing training and resources to local election officials, poll workers, and volunteers on how to ensure fair and equitable access to the ballot for all eligible electors.

-- Establishing and maintaining voter hotlines, online portals, or other mechanisms for electors to report incidents of voter intimidation, suppression, or discrimination and for election officials to respond to those reports.

-- Supporting voter outreach efforts targeted at historically underrepresented communities, including, but not limited to, members of protected classes, low-income individuals, youth, and individuals with disabilities.

-- Providing grants to community-based organizations, civic groups, and civil rights organizations to conduct voter education and mobilization activities, or to engage in nonpartisan advocacy, litigation, or other legal actions to protect voting rights, challenge discriminatory voting practices, or seek redress for victims of voter suppression or intimidation.

-- Partnering with schools and universities to develop and implement curricula on civic engagement, voting rights, and the importance of participating in the democratic process.

-- Funding research and evaluation projects to assess the impact of voter education and outreach efforts on voter participation and civic engagement, and to identify best practices for improving access to the ballot.

-- Any other activities, projects, or initiatives that furthered the purposes of the Act.

Senate Bill 402

The "Voting and Elections Database Institute Act" would require the SOS, no later than November 5, 2025, to enter into an agreement with one or more universities in the State to create the Michigan Voting and Elections Database and Institute. The Database and Institute would have two goals. Firstly, it would maintain and administer a central repository of election and voting data available to the public from all local government in the State. Secondly, it would foster, pursue, and sponsor research on existing laws and best practices in voting and elections. If the SOS failed to enter into this agreement by the 2025 deadline, it would be responsible for creating, maintaining, and administrating the database and institute.

The following provisions would take effect May 5, 2026.

The Database and Institute would have to provide a center for research, training, and information on voting systems and election administration. It could do any of the following:

-- Conduct classes for credit and noncredit.

-- Organize interdisciplinary groups of scholars to research voting and elections in the State.

-- Conduct seminars involving voting and elections.

-- Establish a nonpartisan centralized database to collect, archive, and make publicly available an accessible database pertaining to elections, voter registration, and ballot access in the State.

-- Assist in the dissemination of election data to the public.

-- Publish books and periodicals considered appropriate by the Database and Institute.

-- Provide nonpartisan technical assistance to local governments, scholars, and the public seeking to use the resources of the Database and Institute.

If the SOS entered into an agreement with one or more universities, the parties to that agreement would have to enter a memorandum of understanding that included the process of selecting the Director of the Database and Institute. If the SOS failed to enter into an agreement, the SOS would appoint the Director.

The bill would require the Database and Institute to maintain an electronic format and make available all relevant election and voting data and records for at least the previous 12-year period. Except for any information that identified individual electors, the data, information, and estimates maintained by the Database and Institute would have to be posted on the Department of State's website and made available to the public at no cost. The data and records would have to include all the following:

-- Estimates of the total population, voting age population, and citizens voting age population by racial, color, or language minority groups and disability status, broken down to the precinct level, on a year-by-year basis, for every local government in the State.

-- Election results at the precinct level for every Federal, State, and local election held in every local government in the State.

-- Contemporaneous voter registration lists, voter history files, election day polling places, and absent voter ballot drop box locations for every election in every local government in the State.

-- Contemporaneous maps or other documentation of the configuration of precincts.

-- Election day polling places.

-- Adopted districting or redistricting plans for every election in every local government in the State.

-- Any other data that the Director of the Database and Institute considered necessary.

The data, information, and estimates maintained by the Database and Institute could be relied on as evidence.

All State agencies and local governments would have to provide the Director of the Database and Institute with any information requested by the Director in a timely manner. Within 90 days after an election, each local government would have to transmit to the Database and Institute information that corresponded to the data and records described above.

Within 90 days of the end of each State fiscal year, the Database and Institute would have to publish a report on its priorities and finances.

Senate Bill 403

Election-related Language Assistance

The "Language Assistance for Elections Act" would require a local government to provide language assistance for elections conducted in that local government if it met any of the following conditions:

-- Had a voting-eligible population of at least 600 individuals in that local government who spoke one language other than English and had limited English proficiency.

-- Had a voting-eligible population of at least 100 individuals in that local government who spoke one language other than English, had limited English proficiency, and comprised 2.5% or more of the voting-eligible population in the local government.

-- For a local government that contained all or any part of a Native American reservation, more than 2.5% of the Native American citizens of voting age within the Native American reservation had limited English proficiency.

Under the Act, "limited English proficiency" would mean an individual who does not speak English as that individual's primary language and who speaks, reads, or understands the English language less than very well, in accordance with United States Census Bureau data or data of a comparable quality collected by a governmental entity. "Native American" would include any individual recognized by the United States Census Bureau or the State as American Indian or Alaska Native.

On at least a biannual basis, the SOS would have to post on the Department of State's website a list of each local government that would be required to provide language assistance for elections and a list of each language it would have to provide.

The Director of Elections would have to provide the information posted on the Department of State's website to the clerk of each local government in the State.

If the SOS determined that language assistance would have to be provided in a local government for elections, the local government would have to do all the following:

-- Provide effective language assistance for elections in each designated language and provide related materials in English, and in each designated language as translated by a certified translator, including registration or voting notices, absent voter ballot applications and other materials or information relating to the electoral process.

-- For a language that was oral or unwritten provide only oral instructions, assistance, or other information relating to the electoral process in that language.

-- Ensure the quality and accuracy of the translated voting or election materials.

If available, language assistance for elections also would have to include live interpretation. In addition to the prior requirements, each local government to whom the Act applied would have to make a good-faith effort to provide bilingual election inspectors.

The Act would not prohibit a local government from voluntarily providing language assistance for elections beyond that required if the local government determined that language assistance for elections would be beneficial for its limited English proficiency residents.

These provisions would take effect June 1, 2025.

Judicial Implications

The Attorney General or any individual or entity whose members were aggrieved by a violation of language assistance requirements could file a cause of action in the Court of Claims.

In any action brought, the Court would have broad authority to order adequate remedies that were tailored to address the violation. Unless otherwise prohibited by law, adequate remedies would include any of the following:

-- Adding voting days or hours or adding polling places or absent voter ballot drop boxes.

-- Ordering a special election.

-- Imposing punitive damages in the form of a civil fine that would have to be deposited in the Voter Education Fund (see Senate Bill 401).

-- Any other form of declaratory or injunctive relief that, in the Court's judgement, was tailored to address the violation.

In any action brought, the Court could order a remedy only if the remedy would not impair the ability of limited English proficiency electors to participate in the political process and elect the limited English proficiency elector's preferred candidates, or otherwise influence the outcome of elections. Additionally, the Court would have to consider remedies proposed by any parties and interested nonparties and could not provide deference or priority to a proposed remedy offered by the defendant or the local government simply because the remedy had been proposed by the defendant or local government.

In any action brought, the Court would have the authority to order remedies that could be inconsistent with other provisions of State or local law, when the inconsistent provisions of law would otherwise preclude the Court from ordering an adequate remedy.

In any action, the Court would have to award reasonable attorney fees and litigation costs, including expert witness fees and expenses, to the party, other than the State or a local government, that filed the action and prevailed in the action. The party that filed the action would prevail if, because of the action, the party against whom the action was filed yielded some or all the relief sought. The bill would prohibit the Court from awarding any costs to the party against whom the action was filed if the party prevailed unless the Court found the action was frivolous, unreasonable, or without merit.

Actions brought under the bill would be subject to expedited pretrial and trial proceedings and would have to receive an automatic calendar preference due to the frequency of elections, the severe consequences and irreparable harm of holding elections under unlawful conditions, and the expenditure to defend potentially unlawful conditions that benefited incumber officials. In any action alleging a violation of the proposed law in which a plaintiff party sought preliminary relief with respect to an upcoming election, the court would have to grant relief if it determined that the plaintiffs were more likely than not to succeed on the merits and it was possible to implement an adequate remedy that would resolve the alleged violation in the upcoming election.

Senate Bill 404

Curbside Voting

Among other things, the Michigan Election Law prescribes the circumstances under which an elector may be aided while filling out a ballot. For example, the Law allows an elector disabled on account of blindness to receive assistance in the marking of the elector's ballot by a member of the elector's immediate family or by a designated individual of voting age.

Under the bill, an elector who was 65 years of age or older or an elector who had a disability could request to vote the elector's ballot using curbside voting at the elector's polling place or early voting site. An elector could request to use curbside voting in any of the following ways:

-- By calling the appropriate city or township clerk's office during regular business hours.

-- By sending another individual into the elector's polling place or early voting site to indicate to the election inspectors that the elector wished to use curbside voting.

-- Any other appropriate method authorized by the SOS at least 120 days before the election.

-- Any other appropriate method authorized by the appropriate city or township clerk.

The bill would require curbside voting to be available to all electors during all hours that a polling place or early voting site was open. Electors would not be required to disclose the reason for requesting curbside voting or provide evidence or documentation of the elector's age or disability to use curbside voting.

The bill would require curbside voting to be conducted in an area designated by the appropriate city or township clerk that was located within 200 feet of any entrance to a polling place or early voting site. The area designated would have to include a sign indicating that the area was for curbside voting only. If the curbside voting area were located more than 100 feet from any entrance to a polling place or early voting site, an individual could not conduct the following activities within 10 feet of a vehicle parked in the curbside voting area:

-- Attempt to persuade a person to vote in a particular manner.

-- Distribute unofficial stickers or other unofficial election-related material.

-- Solicit donations, gifts, contributions, purchase of tickets, or similar demands, or request or obtain signatures on a petition.

Under the bill, when the election inspectors at a polling place or early voting site became aware that an applicable elector outside of the polling place or early voting site wished to use curbside voting, the following procedure would be used:

-- Two election inspectors, one from each major political party, if available, would have to go to the elector's vehicle outside of the polling place or early voting site and verify the elector's registration status.

-- If the elector's registration status was confirmed, the election inspectors would have to provide that elector with a ballot to vote and a secrecy envelope.

-- The elector would have to mark the ballot in the presence of the election inspectors, but in a manner that protected the secrecy of the ballot.

-- Once the elector had completed marking the elector's ballot, the elector would have to return the marked ballot in a secrecy envelope to the election inspectors.

-- The election inspectors would have to immediately return to the polling place or early voting site and deposit the marked ballot into the ballot tabulator.

-- Once the ballot was tabulated, the election inspectors would have to return to the elector's vehicle and indicate to the elector that the elector's ballot was tabulated and provide that elector with written proof that the elector's ballot was tabulated.

Allowing Voting Assistance and Transportation

Beginning on the bill's effective date, an elector could seek language assistance from an individual the elector chose to exercise the elector's right to vote. Additionally, an elector could bring any individual into the voting booth or voting compartment at an election to assist that elector in participating in the electoral process. An election inspector would have to confirm with the elector that the assisting individual was of the elector's choice.

The bill would allow a nonprofit or nonpartisan entity that was not a political committee to offer or provide transportation for an elector to and from a polling place, early voting site, absent voter ballot drop box, or a city or township clerk's office for voting purposes.

Under the bill, "political committee" would mean a committee as that term is defined under Section 3 of the Michigan Campaign Finance Act: a person that receives contributions or makes expenditures for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate, the qualification, passage, or defeat of a ballot question, or the qualification of a new political party, if contributions received or expenditures made total $500 or more in a calendar year. "Political committee" also would mean an entity that is tax-exempt under Section 527 of the Internal Revenue Code.

The bill would delete a current provision prohibiting an individual from hiring a motor vehicle or other conveyance or cause the same to be done, for conveying voters, other than voters physically unable to walk, to an election. Additionally, the bill would allow an individual to provide food, entertainment, warmth, or other necessities to electors who were in line to vote at a polling place location, an early voting site, or a city or township clerk's office.

Currently, a person or a person's agent who knowingly makes a false, deceptive, or malicious assertion, representation, or statement of fact concerning a candidate for public office in this State, without the true identity of the author being subscribed to the assertion, representation, or statement, is guilty of a misdemeanor. The bill would delete this provision.

BACKGROUND

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate based on race, color, or membership in a language minority group. The Act defines membership in a "language minority group" as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage.^{^[1]}

In 1982, the United States Senate Committee on Judiciary issued a report on what factors courts may use to determine whether a violation of Section 2 had occurred.^{^[2]} The report included the following factors:

-- The history of official voting-related discrimination in the state or political subdivision.

-- The extent to which voting in the elections of the state or political subdivision is racially polarized.

-- The extent to which the state or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts.

-- The exclusion of members of the minority group from candidate slating processes.

-- The extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health, which may hinder their political participation.

-- The use of overt or subtle racial appeals in political campaigns.

-- The extent to which members of the minority group have been elected to public office in the jurisdiction.

In a suit alleging a violation of Section 2, a Federal court may order protection for the group harmed by the violation under a consent decree, a settlement agreement consented to by all parties and approved by the court.

Currently, the United States Census Bureau recognizes five races: White, Black or African American, American Indian or Alaska Native, Asian, and Native Hawaiian or Other Pacific Islander. Participants also may select Some Other Race. Additionally, participants may select multiple options to indicate mixed-race status.

FISCAL IMPACT

The bills provide procedures and direction for the Court of Claims and circuit courts regarding the application of the MVRA. While there would likely be an increase in filings or hearings for the Court of Claims and circuit courts because of the legislation, this would not automatically mean there would be an increase in administrative costs for courts. Additionally, some, if any, increased administrative costs related to additional hearings could be deferred to some degree by filing fees paid by litigants.

Filing fees for the Court of Claims are the same as those for Circuit courts: $150 plus $25 for e-file. Filing fee revenue is collected statewide and redistributed to several different restricted funds, with nearly half (48.5%) directed into the State Court Fund. Depending upon the frequency and volume of complaints, there could be some costs borne by circuit courts or the Court of Claims due to the requirement in Senate Bill 401 that legal actions brought under the MVRA be expedited and given calendar preference on court dockets. Such potential costs are indeterminate.

Senate Bill 401

The bill would have additional costs for the Department of State that could total over $1.5 million. Costs for the Department to implement the requirements in the bill would include the hiring of two additional FTEs at a cost of $300,000 per year to approve MVRA resolutions. Costs could be higher depending on the actual number of resolutions received by the Department. There also could be additional costs to adopt new administrative rules, but the Department believes those duties could be handled with the two additional FTEs. Finally, the FTEs also would cover any additional costs associated with the Department determining which local jurisdictions are covered jurisdictions.

The bill would require covered local jurisdictions to first obtain preclearance from either the SOS or the Court of Claims. The Department has stated that this will be the costliest requirement of the bill, as it would require the hiring of an additional six FTEs. The estimated costs to hire six FTEs is $900,000 per year.

Finally, the requirement for the Department to provide translated/interpreted voting materials would require the hiring of one additional FTE for this purpose at a cost of $150,000 per year. The Department also anticipates an estimated additional cost of $200,000 for the costs of materials, but it has indicated costs could be much higher depending on need.

There also would be a local cost component related to reimbursing plaintiffs for reasonable costs associated with generating a notification letter to the local government alleging a violation the proposed MVRA. Should the local government enact and implement a remedy based on the notification letter, the local government would have to reimburse the plaintiffs for reasonable costs or a mutually agreed upon amount. The costs to a local government would vary based on each notification letter.

[2] "Section 2 of the Voting Rights Act", Civil Rights Division, U.S. Department of Justice. Retrieved on 8-23-2023.

[1] 52 U.S. Code 10310