Sign outside Ann Arbor polling place, Nov. 8, 2022 | Laina G. Stebbins
Updated, 3:32 p.m., 5/5/23
Republicans at a recent congressional hearing accused Michigan’s chief election official of deliberately leaving tens of thousands of dead voters on the rolls in order to encourage illegal voting.
Even at a time of intense partisan conflict over election policies, it was a strikingly direct charge against a sitting official — and one made not by a Twitter activist or even on the campaign trail, but before Congress. And it comes at a time when election officials are already facing a wave of harassment and threats stemming from false claims about voting.
But a closer look at the facts makes clear the allegation that Michigan Secretary of State Jocelyn Benson knowingly kept dead people on the rolls to allow for fraud deserves extreme skepticism.
A federal judge has ordered mediation in a lawsuit brought by a conservative voting group alleging Benson, a Democrat, is violating federal law by keeping the voters on the rolls. But the suit stops well short of claiming that Benson deliberately aimed to encourage fraud — in contrast to the claim aired at the congressional hearing.
And in court filings, her office has offered a clear alternative explanation for why it hasn’t removed the voters at issue — essentially, that doing so would risk disenfranchising eligible voters.
The episode offers the latest example of how outlandish claims about voting — often seeking to vilify election officials, poll workers, or ordinary voters — have at times in recent years gone unchallenged, helping to establish a perception of widespread fraud and corruption that’s sharply at odds with reality.
That’s come at a severe cost to U.S. elections. A national survey found last year that nearly a quarter of local election workers endured violence, harassment, or abuse as a result of their job. A separate survey from last month found many are quitting.
“By advancing false conspiracy theories about our elections,” said Jake Rollow, a spokesman for Benson, “this congressional committee threatens the safety of professional election officials on both sides of the aisle.”
U.S. House hearing
Serving as a witness at an April 27 hearing on voting policy held by the GOP-controlled U.S. House Administration Committee, the Heritage Foundation’s Hans von Spakovsky was asked why a state might refuse to maintain accurate and up-to-date voter rolls.
“There’s currently a lawsuit going on in Michigan, against the Michigan secretary of state, because she refuses to take 27,000 individuals who are dead off the voter rolls,” answered von Spakovsky, a longtime leader of the conservative campaign for tighter voting laws.
Von Spakovsky was referring to an ongoing lawsuit brought by the Public Interest Legal Foundation against Benson, charging that her failure to remove the voters violated federal law. PILF, which was founded by a conservative voting activist, often works to pressure election officials to more aggressively purge voter rolls, citing the threat of illegal voting, which is extremely rare.
“They verified the information themselves, sent it to the secretary of state, and she refuses to take them off,” added von Spakovsky.
Von Spakovsky declined to say why Benson might have kept the voters on the rolls. “You’d have to ask her,” he said.
But another witness, Ken Cucinelli of the Election Transparency Initiative, another group that advocates for stricter voting rules, was less reticent.
“I think the reason for it is the desire to build in problems, to have muddy voter rolls that can be exploited,” said Cuccinelli, a Republican former attorney general of Virginia. “That’s the only rational explanation, and that’s unfortunate.”
A short time later, Rep. Greg Murphy, R-N.C., brought the issue up again during his questioning.
“Mr. Cuccinelli, how do you think the American people would feel that the Michigan secretary of state would allow 27,000 dead people to be on the rolls?” Murphy asked.
“I think they’d be astonished,” Cuccinelli responded, without hesitation. “They couldn’t conceive of a legitimate, clean legal reason to do that.”
After some back and forth, Murphy asked: “What intent other than fraud could there be for wanting to allow such things?”
“I don’t think there is any other intent,” said Cuccinelli.
“Short of fraud, there is also mere confusion,” Cuccinelli added. “The left has a bigger litigation machine, by far, than the right … So muddiness and confusion works to their advantage. It leads into litigation, where they deem themselves to have an advantage.”
Murphy then asked why anyone would be against voter ID laws.
“I’m just trying to figure out what rationale, other than wantingly to commit fraud, would there be for these things,” Murphy asked.
The series of exchanges, which went largely unchallenged, left listeners at the hearing with a clear takeaway: Michigan election officials are knowingly refusing to pare large numbers of deceased voters from the rolls, in order to make it easier for illegitimate voters to cast fraudulent ballots.
‘False conspiracy theories’
But court filings made by lawyers for Benson’s office in the PILF suit make clear that things aren’t nearly that simple.
They say Benson declined to remove the voters because doing so without confirming the accuracy of PILF’s list would have risked removing eligible voters and violating federal voting law, which aims to ensure that voters aren’t wrongly removed.
Asked whether Cuccinelli stood by his claim that Benson sought to encourage fraud, Election Transparency Initiative didn’t back down.
Cuccinelli, the group said in a statement, was referring to “a sliding scale from fraud down into intentional confusion, with the purpose of the intentional confusion being to leverage a litigation advantage in close races. And the purpose of allowing fraud, being obvious, to actually allow fraud, though Benson et al would (never) admit it.”
Rollow, the Benson spokesman, responded: “Michigan’s voter registration rolls are more accurate than ever and maintained in accordance with the law.”
On its website, Benson’s office outlines its process for removing voters from Michigan’s rolls, which contain around 8.2 million names.
It says it removes dead voters “on a weekly basis” after receiving information from the Social Security Administration’s Master Death Index. It also receives information about voters who have died from the Electronic Registration Information Center, an interstate compact for sharing registration data, and from other sources.
A database of election fraud cases maintained by von Spakovsky at the Heritage Foundation lists four criminal convictions for election fraud stemming from Michigan’s 2020 election, in which around 5.5 million votes were cast. None were the result of dead people being left on the rolls. There have been no credible allegations of fraud in the state’s 2022 election, in which around 4.5 million people cast ballots.
‘Equally plausible’ claims
In its November 2021 complaint, PILF said it worked with a data-analytics expert to cross-reference a sample of Michigan’s registered voters against death records kept by the Social Security Administration, including matching Social Security numbers. (PILF worked with a federally licensed database vendor who had access to Social Security Administration databases.) The group said it used various safeguards, including checking for evidence of commercial activity, to avoid false positives.
PILF conducted this process three separate times between September 2019 and August 2021. In its final examination, it found just under 26,000 “potentially deceased” registrants.
PILF alleged that it provided Benson’s office with its findings on several occasions, and urged the office to remove the voters from the rolls, but no action was taken.
“For the Foundation to be able to identify more than 25,000 deceased registrants on a conservative sample of the (voter rolls) it examined, and for Defendant to fail to act upon the information provided by the Foundation over the course of many months,” PILF alleged in its complaint, “demonstrates emphatically that Michigan has failed to reasonably implement and/or conduct a systematic list maintenance program that complies with federal law requiring deceased electors to be removed from the voter rolls.”
In response, Benson’s office asked the court to dismiss the case. In addition to challenging PILF’s standing to bring the lawsuit, lawyers for Benson’s office argued that federal voting law only requires states to make a reasonable effort to remove ineligible voters — something they said Michigan has long done.
“It certainly does not require election officials to divert limited public resources from using established protocols to identify and remove deceased voters to, instead, focus on a list of unknown provenance and accuracy,” the lawyers wrote.
PILF didn’t provide enough information with its list, Benson’s lawyers added, to allow the state to confirm that all the voters on it were actually dead. When Benson’s office did a sample review of several of the names on the spreadsheet PILF provided, the lawyers wrote, those names had in fact been canceled as deceased, casting further doubt on the list’s accuracy.
As a result, Benson’s office argued, removing the voters from the list would risk disenfranchising any voters who were wrongly included, as well as potentially violating federal voting law. Election officials in several states have sparked outrage in recent years by conducting flawed purges of the rolls that have removed eligible voters.
Benson’s office might have had an additional reason to view PILF’s findings skeptically.
In 2019, PILF was forced to issue an apology to a group of Virginia voters after wrongly describing them as non-citizens in a report alleging large-scale illegal voting in the state.
Against the risk of disenfranchising eligible voters, Benson’s office also needed to weigh the opposite-side risk of allowing illegal votes to be cast by failing to remove the names.
Still, a federal judge declined to dismiss the PILF case, finding that both sides appear to have reasonable legal arguments.
“The factual allegations, accepted as true, plausibly give rise to an entitlement to relief under the [National Voter Registration Act],” U.S. District Court Judge Jane Beckering, an appointee of President Joe Biden, wrote last August.
But Beckering added that Benson’s position “is perhaps equally plausible.”
Last month, the court appointed a mediator to help reach a settlement in the case.
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