Michigan Advisory Opinions October 01, 1986: AGO 6391 (October 1, 1986)

Michigan Attorney General Opinions

1986.

AGO 6391.

You have requested my opinion on a question as to which unit of local government is responsible for certain costs involved in preparing a punchcard voting device for use in a state primary or general election. Your question may be stated as follows:

Where a city or township owns an electronic voting system utilizing a punchcard voting device, is the city or township responsible for the costs of services rendered in the "crimping, punching, and assembly" of ballot labels to that punchcard voting device or must such costs be borne, instead, by the county?

MCL 168.794a; 6.1794(1), authorizes a county, city, village, or township to acquire an electronic voting system:

"The board of supervisors of a county, the legislative body of a city or village, or the township board of a township in this state, by a majority vote, may authorize, acquire by purchase, lease or otherwise, adopt, experiment with or abandon any electronic voting system approved for use in the state, in any election or primary or combination thereof, and may use such system in all or a part of the precincts within its boundaries, or in combination with paper ballots or voting machines."

You have advised that several cities and townships in Oakland County, acting pursuant to this statutory authority, have purchased punchcard voting devices for use in the conduct of primary and general elections. A disagreement has arisen between the county and one or more of the cities and townships as to which unit of government is obligated to pay for certain of the expenses involved in preparing these punchcard voting devices for use in state primary or general elections.

The punchcard voting device involved in your question essentially consists of a plastic desk or tray. Ballot label pages listing the names of the candidates and/or ballot proposals are attached to the center of this device. Below these pages, is a hard paper or cardboard mask into which holes have been punched corresponding to the names and proposals on the ballot pages. Each voter inserts a ballot card into the device in such a manner that the card is positioned directly below the mask. The voter records his or her vote on the ballot by pushing a stylus tip through the hole on the mask directly across from the name of the candidate or ballot proposal he or she wishes to select. This results in the creation of a punch hole in the ballot card which can later be "read" by a machine. The total ballot is tabulated by counting the punch holes thus created on each ballot card.

Obviously, it is essential to the functioning of this system that the mask be carefully and precisely punched and arranged in relation to both the ballot label pages and the actual ballot card inserted by the voter so as to assure that the voter's stylus punches a hole in the proper place on the ballot card for the candidate or proposal selected by that voter.

Your question concerns the financial responsibility for certain of the procedures involved in preparing and assembling the ballot labels and mask to the punchcard voting device. I am informed that essentially two steps are involved in this process.

The first step is the actual printing of the ballot labels which will later be attached to the punchcard voting device. This portion of the process is handled by the county in state primary and general elections. After the local clerks advise the county as to the form and contents of the ballot, the county makes arrangements with a vendor for the printing of the ballot labels and the delivery of these labels to the appropriate local unit of government.

The second step involved in this process occurs after the printed ballot labels are delivered to the individual local units of government and involves the actual preparation of the punchcard voting device, including the attachment of the printed ballot pages to that device. Each of these devices contains a detachable plastic frame to which the ballot labels are affixed. I am informed that the preparation of the device generally involves the removal of this frame from the device. That empty ballot frame is then forwarded by the local unit of government, together with the printed ballot labels, to a contractor for assembly. The steps in this assembly process are commonly referred to as "crimping, punching, and assembly." The "crimping" involves the attachment of a metal rod and binding to the edge of the ballot label. The ballot label is then attached to the ballot frame by means of these metal rods. "Punching" is the process by which holes are carefully and precisely placed in the ballot mask in relation to the location of the names and proposals on the ballot label and ballot card so as to assure that the voter's stylus will properly and correctly record his or her vote. "Assembly" consists of the actual placement of the ballot labels and mask in the ballot frame. The completed frames are then returned to the local unit of government where they are reinserted in the punchcard voting device and sealed by the local clerk or an authorized assistant.

It is my understanding that the county agrees that it is responsible for the cost of printing the ballots and ballot labels for state primary and general elections and that, accordingly, there is no dispute as to this item. A plain reading of the relevant provisions of the election code supports this conclusion. MCL 168.689; MSA 6.1689, provides:

"The board of election commissioners of each county shall prepare the official ballots for use at any state, district or county election held therein, and shall have printed a sufficient number of ballots...."

Similarly, MCL 168.696(1); MSA 6.1696(1), provides in pertinent part:

"The board of election commissioners in each county shall cause the names of all candidates for federal, state, district, county, and township offices at any election to be printed on one ballot, separate from any other ballot."

Once the ballots have been printed, it is the responsibility of the county clerk to distribute the ballots to the local clerks pursuant to MCL 168.714(4); MSA 6.1714(4), which states:

"The county clerk of each county shall cause to be delivered ballots, ... and election supplies to the clerk of each township and city in the county at least ten days before any election or primary election."

Thus, it is the responsibility of the county board of election commissioners to provide for the printing of ballots and ballot labels at all elections at which state, county, and local offices and proposals are to be voted upon by the electors.

This conclusion is not altered by the provisions of the Michigan Election Law pertaining to electronic voting systems. MCL 168.794c; MSA 6.1794(3), provides in pertinent part:

"The provisions of sections 794 to 799 shall control with respect to elections where electronic voting systems are used, and shall be liberally construed so as to carry out the purpose thereof. Any provision of law relating to the conduct of elections which conflicts with such sections shall not apply to the conduct of elections with an approved electronic voting system."

A review of sections 794 to 799, however, reveals nothing which conflicts with the above-referenced sections concerning the printing of ballots and ballot labels. MCL 168.795b; MSA 6.1795(2), specifies the materials, form, and contents of ballot labels for use with electronic voting devices but is silent as to which unit of government is responsible for the printing of those ballot labels. In addition, MCL 168.796a; MSA 6.1796(1), provides:

"Prior to an election at which electronic voting devices are used the board of election commissioners of the city, village or township, shall have the voting devices prepared for the election. The board shall provide the election board of each voting precinct with voting devices, voting booths, ballot boxes, ballots, 'write-in' ballots and other records and supplies as required."

While this provision makes the local board of election commissioners responsible for preparing the electronic voting devices and distributing necessary materials to the individual precincts, it is silent on the responsibility for the actual printing of the ballot labels. Accordingly, it must be concluded that the responsibility for printing such ballots and ballot labels continues to be governed by MCL 168.689; MSA 6.1689, and MCL 168.1696; MSA 6.1696, and is, accordingly, the responsibility of the county board of election commissioners.

The contrary is true for elections at which only local offices and proposals are to be voted upon. In such elections which are purely local in character, the city or township is responsible for the printing costs of ballots and ballot labels. 1979 AC, R 168.772(6) and (8).

The county and the local units of government have been unable, however, to agree as to which unit of government is responsible for the costs involved in "crimping, punching, and assembly" of the ballot labels and mask to the ballot frame of the punchcard voting devices for state primary and general elections. You have requested my opinion upon this question.

The process of preparing the punchcard voting device for an election is described in 1979 AC R 168.775(1), (3), (4), (5) and (6), as follows:

"(1) The clerk or an authorized assistant shall prepare each voting device pursuant to the provisions of the act and these rules.

"(3) A ballot label page used in the voting device shall be firmly attached for insertion and positioning in the ballot frame. A person shall not attach a ballot label by tape to a rod, or place a ballot label into a clear plastic envelope through which a rod is inserted.

"(4) The ballot label assembly shall be inserted and sealed into each voting device so that the ballot label assembly cannot be removed without breaking the seal. Seals approved by the board of state canvassers shall be used for this purpose.

"(5) The ballot label of each voting device of a precinct shall be compared against the edit listing and instruction ballot for the precinct to ascertain that the offices, candidates' names, and ballot position numbers are the same and appear in the same position.

"(6) The ballot label of each device shall be examined to ascertain that holes in the mask appear directly opposite each arrow, that other holes do not appear in the mask, and that the ballot labels are in the proper sequence."

Once the voting device has been prepared for the election by the clerk or an authorized assistant, a written certificate is executed certifying that the device has been properly prepared and tested. 1979 AC, R 168.775(9), in relevant part, states:

"When a voting device has been prepared for the election, the election commission, the clerk, or an authorized assistant shall execute a certificate in writing, which shall be filed with the election commission of the jurisdiction in which they authorized to act. The certificate shall contain the precinct number, the identifying number of the device, and the number of the seal or seals used to seal the device, and state that the ballot labels have been compared against the edit list for that precinct and that the candidates' names and ballot numbers agree and appear in the same position and that the device has been properly prepared and tested."

1979 AC, R 168.772(7), states:

"If a city or township owns the voting devices and the election is an election at which state or county offices or proposals are to be voted upon, or an election at which state, county, and local offices and proposals are to be voted upon, the city election commission shall provide the devices, programming, and computer time, and the county election commission shall provide ballot cards, ballot envelopes, and the printing of the ballot labels. A city or township and a county may enter into a mutual agreement that the county shall provide programming or computer time, or both." (Emphasis added.)

With respect to the actual preparation of the electronic voting device, MCL 168.796a; MSA 6.1796(1), provides in pertinent part:

"Prior to an election at which electronic voting devices are used the board of election commissioners of the city, village or township, shall have the voting devices prepared for the election."

Similarly, 1979 AC, R 168.772(4), provides that where the city, township or village has purchased and uses an electronic voting system, "the clerk of the city, township or village shall have custody of the devices and be responsible for their maintenance, repair, and preparation for elections." Conversely, where a county provides for the purchase of the voting device for use in such elections, 1979 AC, R 168.772 (3) states that it is the county clerk who "shall have custody of the devices and be responsible for their maintenance, repair, and preparation for elections." It follows that, since the city, village or township is responsible for providing and preparing the punchcard voting device for an election, the costs incidental thereto are also the responsibility of that city, village or township.

It is my opinion, therefore, that where a city or township has chosen to own and use an electronic punchcard voting device in a state primary or general election, (1) the county is responsible for the expense of printing and providing the ballot labels, cards, envelopes and absentee ballots, and (2) the city or township is responsible for the expense of preparing the punchcard voting device for the election, including the expense of "crimping, punching, and assembling" of the ballot labels and mask as well as the sealing of the assembled ballot frame into the voting device.

Frank J. Kelley

Attorney General