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A. Please list all applicable statutory references (MCLs, Executive Orders, etc.).
MCL 168.889.
B. Are the rules mandated by any applicable constitutional or statutory provision? If so,
please explain.
Yes. MCL 168.889, above, requires the Board of State Canvassers to provide “such rules and
regulations” as the Board deems necessary. The Board initially promulgated these rules in
1979.
9. Please describe the extent to which the rules conflict with or duplicate similar rules,
compliance requirements, or other standards adopted at the state, regional, or federal level.
The rules do not conflict with any similar rules, requirements, or standards. The proposed rules clarify
certain aspects of the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992, specifically
Chapter XXXIII addressing Recounts, MCL 168.861 to 168.894. The rules also incorporate changes
based on recent amendments to Michigan’s constitution, specifically Const 1963, art 2, §7
(amendments incorporated due to the passage of proposal 2022-2, effective 12-24-2022), and
changes to Michigan election law, 1954 PA 116, MCL 168.1 to 168.992, specifically Chapter XXXIII
addressing Recounts, sections MCL 168.861 to 168.894.
10. Is the subject matter of the rules currently contained in any guideline, handbook, manual,
instructional bulletin, form with instructions, or operational memoranda?
Yes. Included in Recount Under the Authority of the Board of State Canvassers instructions issued for
the Proposal 2022-2 and 2022-3 recounts.
11. Are the rules listed on the department’s annual regulatory plan as rules to be processed for
the current year?
Yes.
12. Will the proposed rules be promulgated under Section 44 of the administrative procedures act
of 1969, 1969 PA 306, MCL 24.244, or under the full rulemaking process?
Full Process
13. Please describe the extent to which the rules exceed similar regulations, compliance
requirements, or other standards adopted at the state, regional, or federal level.
Currently, precincts are often deemed “unrecountable” whenever a seal is broken or does not match
the seal number indicated in the poll book, or when the number of ballots in a ballot container does
not align with the number of ballots issued on Election Day as shown on the poll list, including in
situations where the reason for the discrepancy is explained in the poll book. While current statute
allows a precinct to be recounted if the discrepancy is “explained to the satisfaction of the board of
canvassers[,]” MCL 168.871, that provision has rarely been used. The proposed rules would make
clear that precincts should be recounted whenever possible, except in those situations where a
discrepancy cannot be explained.
Additionally, the rules currently account for the recount of Election Day and absent voter ballots.
Given the adoption of Proposal 2022-2 into the Constitution and relevant implementing legislation,
recount procedures also need to account for the recount of votes cast at early voting sites.
14. Do the rules incorporate the recommendations received from the public regarding any
complaints or comments regarding the rules? If yes, please explain.
The proposed rules were shared with the Board of State Canvassers and 4 county clerks (as county
clerks conduct recounts with the Board of State Canvassers). No changes were requested by either
group.
15. If amending an existing rule set, please provide the date of the last evaluation of the rules and
the degree, if any, to which technology, economic conditions, or other factors have changed
the regulatory activity covered by the rules since the last evaluation.
The proposed rules do amend existing rules. The rules were promulgated in 1979 and have not been
amended since. They do not account for advances in technology such as electronic voting systems
and electronic pollbooks, both of which must be taken into account for vote tabulation and recounts.
The current rules also sanction some procedures that are no longer part of the Michigan election law,
1954 PA 116, MCL 168.1 to 168.992. Specifically, procedures based on former MCL 168.802, which
MCL 24.239