Proposal 22-2 Amendments to Constitution

Shortly after its passage in November, Proposal 22-2 made substantial changes to section 4 of Article II of the Michigan Constitution. Local governments should be aware of the new requirements and of the additional costs created by the amendments. While some amendments simply codify current election practices in the Michigan Constitution, other amendments make changes to election procedure that are important for local clerks to understand. Below is a non-exhaustive review of the amendments.*

Unreasonably Burdening the Fundamental Right to Vote

By creating a fundamental right to vote in the Michigan Constitution, Proposal 22-2, in essence, created a new cause of action for suing municipalities. Any Michigan citizen could bring a lawsuit in circuit court if a municipality (or other person) engages in conduct that has the intent or effect of unreasonably burdening the fundamental right to vote. This includes:

• Enacting any rule, practice or procedure that burdens the right to vote;
• Engaging in harassing or intimidating conduct; and
• Using any means that has the intent or effect of unreasonably burdening the right to vote.

Relief for violating this provision may include monetary damages, injunctions, attorneys fees and costs. This amendment is broader than the laws previously in effect, which prohibited individuals from using bribery, menace, or other corrupt means or device to influence, deter, or interrupt a voter during an election. See MCL 168.932.

Military and Overseas Ballots

The process for overseas ballots has changed. Military and overseas ballots must be counted if the ballot was postmarked on or before election day and received by the appropriate election official within six days of election day. The term “postmark” includes marks applied by the United States Postal Service or any delivery service to the return envelope. This includes a bar code or track marks which indicate the ballot was mailed. Previously, the ballots had to be received by the time polls closed on election day.

Identification

When voting in person or applying for an absentee ballot, a registered voter may prove their identity with photo identification or an affidavit verifying their identity. A voter identifying themselves with an affidavit is not required to vote via a provisional ballot. If a voter is applying for or casting an absentee ballot remotely, the voter may prove their identity by providing a signature to an authorized election official. If the signature is missing or does not match the signature in the voter’s registration record, the voter is entitled to immediate notification and the right to be provided an equitable opportunity to correct the issue. The term “equitable opportunity” is not defined in the Constitution.

Absentee Applications

A registered voter now has the right to request that an absentee ballot be sent to them for all future elections. This right is rescinded only if 1) requested by the voter, 2) the voter is no longer qualified to vote, 3) the Secretary of State or “applicable election official” received information that the voter has moved, or 4) the voter did not vote for six consecutive years.

Drop Boxes

Every Michigan qualified elector has the right to at least one state-funded drop box for every municipality. Electors in municipalities with more than 15,000 registered voters have a right to at least one drop box per every 15,000 registered voters. Voters must have access to the drop boxes for 24 hours a day during the 40 days preceding the election until 8 p.m. on election day. Drop boxes must accept absentee applications and ballots. While drop boxes will be state-funded, the security measures required by the Michigan Election Law will not (i.e., video surveillance, ballot transportation bags, etc.).

State-Funded Postage and State Ballot Tracker

Proposal 22-2 created the right to State-funded prepaid postage to return absentee voter applications and ballots. The Proposal did not provide a timeline for when municipalities must be reimbursed for postage. Further, the Proposal made it a requirement to use the State ballot tracker. Such use was only previously required of cities and townships with access to the ballot tracker program.

Early Voting

Qualified and registered voters now have the right to vote in statewide and federal elections at an early voting site. Early voting is allowed, but is not required for non-statewide, local elections. Beginning the second Saturday before any statewide or federal election, early voting sites must be open for at least eight hours a day, for at least nine consecutive days, which means that the early voting period may end on the Sunday before the election. However, early voting may be open for additional days and hours beyond what is required. Results from early voting sites cannot be reported until after 8 p.m. on election day. An early voting site can serve voters from more than six precincts and from more than one municipality within a county. Otherwise put, other laws limiting the number of voters to a precinct are inapplicable to early voting sites. Municipalities will be responsible for staffing and equipment costs for each site. Jurisdictions may enter agreements with other jurisdictions within the same county to share early voting sites.

Election Funding

The Michigan Constitution, as amended by Proposal 22-2, now permits counties, cities, or townships to accept and use publicly-disclosed charitable donations and in-kind contributions to conduct and administer elections. The municipality generally has discretion over whether to accept or refuse such donations or contributions. However, the municipality must refuse offers from foreign funds or from a foreign source.

*The text is intended to provide a non-exhaustive summary of the amendments and to provide local clerks a summary of the locations in one location. Information for this summary was supplied from the Michigan Constitution, the House Fiscal Agency, and the Senate Fiscal Agency.

http://www.legislature.mi.gov/(S(lygwuzjoxiua5sw2irxmsk2m))/mileg.aspx?page=getObject&objectName=mcl-Article-II-4; https://www.house.mi.gov/hfa/PDF/Alpha/Ballot_Proposal_2_of_2022.pdf; https://www.senate.michigan.gov/sfa/Publications/BallotProps/Proposal22-2.pdf