Client Alert May 30, 2020 James F. Scales, Mark E. Nettleton

Governor Issues Executive Orders Impacting the Administration of May Elections and Requiring Restoration of Water Service

This weekend, Governor Gretchen Whitmer issued two new Executive Orders which affect local governments.

May 5 Election. Executive Order 2020-27 is aimed at limiting exposure of voters and poll workers to Coronavirus in the upcoming May 5, 2020 election. The Order temporarily suspends the provisions of the Michigan Election Law requiring that elections be conducted at a physical polling place and expressly states that, “elections on May 5, 2020 must be conducted to the greatest extent possible, by absent voter ballots issued and submitted without in-person interaction.”

Under the Order, all local jurisdictions conducting a May 5, 2020 election are required to send absentee voter ballot applications to each registered voter. Qualified electors who are not registered to vote are strongly encouraged to register online or by mail not later than Monday, April 20, 2020, and strongly discouraged from registering in-person. Applications to vote and residency verification can be accepted by email or fax. The Order provides, however, that clerks must allow individuals who want to register to vote after April 20, 2020 the opportunity to register in-person during the hours the clerk’s office is open. All applications to register to vote between the date of the Order and May 5, 2020 must also be considered a request for an absentee ballot.

Local clerks or election administrators are required to immediately begin preparations to conduct the May 5, 2020 election primarily by mail, including the preparation of postage prepaid absentee voter ballot return envelopes for the return of voted ballots. While the Order dictates that most polling places should be closed, each jurisdiction will still need to keep at least one polling place open for those who wish to vote in-person or are unable to vote by mail. This location should be communicated to all registered voters in advance of the election.

The Order further permits political subdivisions which have certified a ballot question for the May 5, 2020 election to withdraw it and resubmit it to the voters at the August 4, 2020 election or a later election date. Millage questions approved at the August or November elections may still be levied on the Winter 2020 tax bills. Removal of the question must be by the same method used by the local legislative body to certify the question for the ballot (such as by the adoption or rescission of a resolution or ordinance), which would require a meeting of the governing body held in compliance with existing Executive Orders.

EO 2020-27 leaves a few important questions unanswered: It states that a withdrawal from the ballot must be received by the County Clerk by March 27; presumably that is an error and perhaps April 27 was intended. Also, if a ballot includes questions in addition to the one withdrawn, we do not believe reprinting of the ballots is required and any votes cast for the withdrawn question are simply not counted. We would expect clarification from the State on these issues.

Water Service Restoration. Executive Order 2020-28 requires public water supplies to restore water service to any occupied residence where the water service was previously shut off due to non-payment, so long as the public water supply does not have reason to believe that reconnection would create a risk to public health (e.g., due to cross-contamination).

Under the Order, a public water supply is required to immediately use its “best efforts” to identify which occupied residences within the water supply system’s service area do not have water service. Further, if the public water supply determines that an occupied residence had its water service shut off for any reason other than non-payment or that reconnection would create a risk to public health, it must make “best efforts” to remedy the conditions and restore water service to the occupied residence as soon as possible. For residential users, shut offs for reasons other than non-payment are probably rare, and will need to be considered on a case-by-case basis.

A public water supply is also required to submit a report to the State Emergency Operations Center on before April 12, 2020, regarding water shut offs to occupied residences in the supply’s service area within the past year. The report must include: a description of the public water supply’s efforts to determine which occupied residences within the public water supply’s service area do not have water service; identify the number of occupied residences within the public water supply’s service area that do not have water service as a result of a shutoff due to non-payment; and the number of occupied residences within the public water supply’s service area that do not have water service as a result of any reason other than non-payment. The report must also include a certification that: (1) the public water supply has utilized its best efforts to determine which occupied residences within the service area do not have water service; (2) to the best of the public water supply’s knowledge, no occupied residences have their water service shut off due to non-payment; (3) the public water supply has reconnected water service for all occupied residences that can be reconnected without creating a risk to public health; and (4) the public water supply has exercised best efforts to remedy the conditions that prevent reconnection due to a risk to public health.

The Order makes clear that it does not abrogate the obligation of a resident to pay for water, prevent a public water supply from charging any customer for water service, or reduce the amount a resident may owe to a public water supply. Nothing in the order would prohibit placing delinquent charges on the tax bill for the property served.

The requirements of the Order are applied based on the “service area,” which means the area in which the public water supply collects payment. If your community is receiving water service from, or supplying it to another community, your service agreement should be reviewed and you should coordinate with the other municipality to be sure these requirements are being satisfied.

Election and water utility workers are both classified as Critical Infrastructure Workers, so compliance with these orders is consistent with previous orders, although in-person contact must be limited as much as possible.

The attorneys at Mika Meyers are up-to-date on the ramifications of these latest Executive Orders and are prepared to answer questions and to assist with compliance with these and any other Orders. We are available by email or phone, just as at any other time.