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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former MCL 168.802, which was repealed by 2018 PA 120, effective 12-31-18, and former MCL
168.737, which was repealed by 2012 PA 128, effective 5-14-12.
16. Are there any changes or developments since implementation that demonstrate there is no
continued need for the rules, or any portion of the rules?
Yes. Since the rules’ implementation in 1979, several changes to Michigan Election law, 1954 PA
116, MCL 168.1 to 168.992, have rendered some rules obsolete as they reflect procedures that are
inconsistent with the law and no longer used. The draft will rescind rules that are no longer
applicable given subsequent changes to election law, specifically, the current rules include
procedures based on former MCL 168.802, which was repealed by 2018 PA 120, effective 12-31-
18, and former MCL 168.737, which was repealed by 2012 PA 128, effective 5-14-12.
17. Is there an applicable decision record (as defined in MCL 24.203(6) and required by MCL
24.239(2))? If so, please attach the decision record.
No
Based on the information provided in this RFR, MOAHR concludes that there are sufficient
policy and legal bases for approving the RFR. The RFR satisfies the requirements of the
Administrative Procedures Act of 1969, 1969 PA 306, MCL 24.201 to 24.328, and Executive
Order No. 2019-6.
MCL 24.239