The claim: A Republican bill in Michigan “would make it a crime for election officials … to share information about how to vote by mail and where to find a ballot drop box.”
Michigan Secretary of State Jocelyn Benson, the state’s top election official, says a Republican-backed bill would prevent election officials like her from doing an important part of their job: sharing information with voters about how to exercise their right to vote.
Benson, who is running for reelection next year, has repeatedly clashed with GOP lawmakers over a package of bills that seeks to revamp the way elections are conducted in the state and curtail her office’s powers. She has objected in particular to GOP bills that would restrict access to absentee voting; in 2018, Michigan voters overwhelmingly supported an initiative that enshrined expanded access to mail ballots in the state’s constitution.
One of the GOP bills “would make it a crime for election officials (including Secretary Benson) to share information about how to vote by mail and where to find a ballot drop box,” Benson’s campaign said in a May 20 fundraising email.
We looked at Benson’s claim and found that she overstates the proposed restrictions in the bill, Senate bill 503. It would not absolutely prohibit her office or clerks’ offices from communicating with voters.
At the same time, county and local clerks and legal experts say that the bill would prohibit many of the methods election officials currently use to inform voters, and that its vague wording could expose officials to criminal charges for conventional efforts to communicate with voters.
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What the bill and its supporters say
Ahead of elections, election officials routinely send out postcards and newsletters telling voters about registration deadlines and how to request an absentee ballot. Those communications often include the official’s name and sometimes their image. Clerks say this helps reassure voters that they are getting information from an official government source, rather than a party or campaign office.
The bill in Michigan’s state Senate would bar the secretary of state as well as county and local clerks from using their name or likeness on communications about an upcoming election paid for with public funds. A violation would constitute a misdemeanor, and election officials would be subject to a fine of up to $100 for a first offense and up to $250 for any subsequent offense.
The legislation defines communication as including mail, billboards, radio or television advertisements, social media posts or advertisements. It defines election-related information as dealing with voting, registering to vote, applying for an absentee ballot, submitting an absentee ballot, finding a polling location, monitoring the status of an absentee ballot or recruiting election inspectors.
The bill would not prevent the secretary of state’s office or clerks’ offices from putting up billboards, posting to government-run social media accounts or mailing out information about how to participate in an upcoming election — so long as the name or photo of the secretary of state or clerk isn’t included.
Sen. Dale Zorn, R-Ida, did not testify in support of his bill during an April 28 Senate Elections Committee meeting on the legislation, and his office declined to respond to a request for comment.
Sen. Ed McBroom, R-Vulcan, who spoke in favor of the legislation during the committee meeting, said the bill is designed to prevent electioneering by officials who oversee elections, even though the bill also applies to clerks who are appointed and elected clerks who are not up for reelection.
But election officials and legal experts say that because the bill, as it’s currently written, does not narrowly define election-related communication, it could limit a wide range of avenues through which election officials currently communicate with voters.
Michigan Department of State spokesman Jake Rollow said that “the bill would make it a crime for Secretary Benson or any election official to use traditional methods to inform their communities about elections.”
“Even many social media accounts of their offices and departments, which include the name and image of their elected or appointed leader, would be banned from voter education and other critical election-related communications,” he said.
“There is simply no evidence that it would strengthen our election system in any way,” Rollow added, “but there is plenty to suggest that restricting voter education would lead to voter confusion, suppression and disenfranchisement.”
What kinds of communications would be restricted?
John Pirich, an elections attorney who represented former President Donald Trump in a 2016 election lawsuit, said the bill would prohibit clerks from replying to a voter’s email with an email address or signature that includes their name. Delta Township Mary Clark, a Democrat, said that in the months leading up to the Nov. 3 election, she was personally communicating with voters multiple times every day about the upcoming election.
Many clerks’ websites that provide information about registering to vote and requesting an absentee ballot include a photo and name of the clerk. Such identifying information would have to be removed to comply with the proposed law, according to Steve Liedel, an attorney and former legal counsel to Democratic Gov. Jennifer Granholm.
Midland County Clerk Ann Manary, a Republican, said the bill also would bar some social media posts informing voters about how to participate in an election. “We like to do live videos and put them on the county’s Facebook page, and we would be prohibited from doing that,” she said.
Ingham County Clerk Barb Byrum said she interprets the bill as also prohibiting election-related posts from her personal Twitter account, which she uses regularly to debunk election misinformation. Liedel said that while social media accounts are free to create and use, clerks could run into problems posting from a personal account under the bill if they do so from a work phone or computer or a personal device connected to their office WiFi or while sitting in their office.
Clark and Manary, who testified against the bill on behalf of the Michigan Association of Municipal Clerks and the Michigan County Clerks Association, respectively, said it threatens clerks’ ability to share trusted information with voters and subjects them to criminal penalties that don’t apply to other elected officials.
“We feel that our name is validation to our voters that it’s legitimate information when there’s so much misinformation in our world right now,” Clark said. “Clerks are the single most trusted source of election information.”
How exactly the bill would affect the way clerks communicate with voters won’t be fully understood until the final language is hammered out. The bill is in committee right now and could change once it reaches a vote in either the Michigan House or Senate. Democratic Gov. Gretchen Whitmer is likely to veto it, and even if it were enacted, it would almost certainly face court challenges.
“I just can’t see a court upholding a prohibition of a properly elected official communicating with their elected title and name to give this information,” Pirich said.
Merissa Kovach, the policy strategist for the American Civil Liberties Union (ACLU) of Michigan, said that Benson’s characterization of the bill misses the mark. Election officials “could tell you where to vote but they couldn’t do it with attaching their name to it at all,” she said.
In some instances, the change would be a matter of removing a clerk’s name and photo from a mailer or billboard. But in other instances, the bill would require clerks to operate behind a veil of anonymity in situations — such as sending an email — where it makes sense to tell voters who they are, Kovach said.
“I’d be worried about clerks just constantly being scrutinized and at risk for committing crime and for doing the very basics of their job,” she said.
Benson’s campaign claimed that a GOP-backed bill would make it a crime for election officials to “share information about how to vote by mail and where to find a ballot drop box.”
Benson’s claim is partially accurate. The bill, as it’s phrased now, would not broadly prohibit election officials from sharing such information, but election officials say that as a practical matter, it would bar them from many of the methods they currently use to help voters, and that the language of the bill would leave them exposed to criminal charges for routine communications with voters.
We rate it Half True.
Clara Hendrickson fact-checks Michigan issues and politics as a corps member with Report for America, an initiative of The GroundTruth Project. Make a tax-deductible contribution to support her work at bit.ly/freepRFA. Contact her at email@example.com or 313-296-5743. Follow her on Twitter @clarajanehen.
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