Michigan Advisory Opinions August 06, 2021: AGO 7316

Advisory Opinion Text

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich. Dept. of Attorney General Web Site - http://www.ag.state.mi.us )

CONST 1963, ART 2, § 4:

CONST 1963, ART 4, § 53:

CONSTITUTIONAL LAW: ELECTIONS:

Auditor General’s authority to audit postelection processes and access election records and equipment

While the Auditor General may subject the Michigan Bureau of Elections to a performance audit concerning the Bureau’s procedures for conducting post-election audits under MCL 168.31a, article 4, § 53 of Michigan’s Constitution does not authorize the Auditor General to audit county clerks or other local units of government to facilitate his audit of the Bureau of Elections.

The Secretary of State, in her role as the Chief Elections Officer, may exercise supervisory authority over local elections officials responding to a request for election records by the Auditor General by issuing directions for the review of such records in order to protect the physical integrity and security of the records consistent with state and federal law.

The Secretary of State, in her role as the Chief Elections Officer, may exercise supervisory authority over local elections officials responding to a request for access to voting equipment by the Auditor General by issuing directions that access to voting equipment should not be permitted, given the need to protect the physical integrity and security of the equipment consistent with state and federal law.

The Honorable Jocelyn Benson

Secretary of State

S-1087 Richard H. Austin Building

430 W. Allegan Street

Lansing, MI 48909

You have asked two questions concerning the State Auditor General’s intent to conduct a performance audit of the Department of State, Bureau of Elections’ post-election audit procedures related to the November 3, 2020, general election.

BACKGROUND

A. The November 3, 2020, general election

On November 3, 2020, the State of Michigan held state and federal elections, including, most notably, elections for president and vice president of the United States. The results of that election, as certified by the Board of State Canvassers, revealed that President-elect Joseph R. Biden defeated former President Donald J. Trump by 154,188 votes.

But the presidential election was contentious. Almost immediately after the polls closed on election night, challenges began to emerge, including over procedures used by City of Detroit elections officials to count absent voter ballots, and the early tabulation of votes in Antrim County, Michigan. Many of these disputes then surfaced in multiple lawsuits attempting to challenge the results of Michigan’s presidential election, none of which met with any success. See, e.g., King v Whitmer, 505 F Supp 3d 720 (ED Mich, 2020). Among the other issues raised in post-election litigation was Michigan’s new constitutional requirement for the conducting of post-election audits. See Const 1963, art 2, § 4(1)(h). Indeed, the Department of Attorney General received hundreds of communications from Michigan citizens requesting that the constitutionally required audits be performed.

B. Post-election audits

In 2018, voters amended the Michigan Constitution to, among other things, provide for the audit of statewide elections. As amended, article 2, § 4(1)(h) of the Constitution now provides:

(1) Every citizen of the United States who is an elector qualified to vote in Michigan shall have the following rights:

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(h) The right to have the results of statewide elections audited, in such a manner as prescribed by law , to ensure the accuracy and integrity of elections. [Emphasis added.]

Thus, the people now have a right to have the Legislature provide for an audit of the results of statewide elections.

Michigan’s Legislature has conferred the task of conducting proper elections on the Secretary of State, an elected Executive-branch officer, and the head of the Department of State. Const 1963, art 5, §§ 3, 9. Section 21 of the Michigan Election Law makes the Secretary the “chief election officer” with “supervisory control over local election officials in the performance of their duties[.]” MCL 168.21.

The Legislature amended the Michigan Election Law, specifically MCL 168.31a, following the 2018 adoption of the constitutional amendment. As amended, § 31a requires the Secretary of State to provide procedures for conducting audits and to supervise the local clerks in the conducting of audits, including statewide audits:

(1) In order to ensure compliance with the provisions of this act, after each election the secretary of state may audit election precincts.

(2) The secretary of state shall prescribe the procedures for election audits that include reviewing the documents, ballots, and procedures used during an election as required in section 4 of article II of the state constitution of 1963. The secretary of state and county clerks shall conduct election audits, including statewide election audits, as set forth in the prescribed procedures. The secretary of state shall train and certify county clerks and their staffs for the purpose of conducting election audits of precincts randomly selected by the secretary of state in their counties. An election audit must include an audit of the results of at least 1 race in each precinct selected for an audit. A statewide election audit must include an audit of the results of at least 1 statewide race or statewide ballot question in a precinct selected for an audit. An audit conducted under this section is not a recount and does not change any certified election results. The secretary of state shall supervise each county clerk in the performance of election audits conducted under this section.

(3) Each county clerk who conducts an election audit under this section shall provide the results of the election audit to the secretary of state within 20 days after the election audit. [MCL 168.31a(1)-(3) (emphasis added).]

In keeping with the requirements of § 31a, the Secretary of State’s Bureau of Elections (Bureau) has prescribed specific, detailed procedures for conducting election audits in a Post-Election Audit Manual and accompanying worksheets. Under § 31a and the Manual, county clerks perform these post-election audits, although the Bureau may select additional jurisdictions to be audited by the Bureau itself. The audits provided for in the Manual are often described as precinct procedural audits.

With respect to the November 2020 general election, the Secretary of State announced in December 2020 that the Bureau would be conducting a statewide risk-limiting audit of the presidential election as well as audits of several absent voter counting boards. The Secretary also identified over 200 jurisdictions, spanning all 83 counties in Michigan, in which county clerks would be performing precinct procedural audits.

In February 2021, the Secretary announced the result of the Bureau’s statewide risk-limiting audit, which confirmed the accuracy of the presidential election results and followed up with the release of an official report of all audits in April 2021. (Appendix A, Audit Report of the November 3, 2020, General Election.) The Audit Report explains in detail the purpose and scope of precinct procedural audits, which are “primarily the responsibility of county clerks.” (Appendix A, p 5.) The purpose of procedural precinct audits is to “ensure that election officials and poll workers followed the correct procedures in conducting elections in these precincts, that required pre-election requirements were fulfilled, and that required records were maintained.” ( Id ., p 4.) As stated in the Report, “[p]rocedural audits provide an opportunity to conduct an in-depth review of the proper procedures for preparing and using election day equipment and materials,” and include “a 100 percent hand count of all the paper ballots cast in one statewide race in each audited precinct, which ensures that the tabulators used in the precinct calculated ballots accurately.” ( Id. ) For this election cycle, the U.S. Senate race was selected for the hand count. ( Id ., p 7.)

C. The Auditor General’s proposed audit

As explained in your request, the Office of the Auditor General is currently conducting an audit of the Bureau, apparently as an extension of an audit the Auditor General staff conducted in 2019. However, discussions with staff for the Auditor General indicated that the audit includes a new objective relating to the Bureau’s procedures for conducting and supervising post-election audits. The Auditor General’s published “objectives” for the current audit include “[t]o assess the sufficiency of selected [Bureau of Elections] post-election review procedures to help ensure the integrity of elections.” The Bureau provided the Auditor’s staff with relevant information, including the Post-Election Audit Manual, and Auditor General staff attended several post-election audits, including precinct procedural audits.

Additional discussions with Auditor General staff have led the Bureau to believe that the Auditor General seeks to review the audits that were conducted by the county clerks, or essentially, to re-create or re-perform the audits conducted by the county clerks. The purpose of this review would be for Auditor General staff to verify that records were accurately reviewed or to make their own determination that precincts were audited. Doing so would require manual review of a significant volume of local election records and would include another hand count of ballots for the U.S. Senate race. According to your request, the Auditor General’s intent to conduct such an audit has raised several concerns, including security concerns regarding elections records, which are subject to federal retention requirements; the Auditor General’s ability to accurately re-create the precinct procedural audits; and whether the proposed audit even falls within the scope of the Auditor General’s authority.

Although the Bureau of Elections shared its concerns regarding the proposed audit with the Auditor General, (Appendix B, July 6, 2021, Brater Letter), and the Auditor General has acknowledged those concerns, (Appendix C, July 15, 2021, Ringler Letter), the issues regarding the scope of the audit and the Auditor General’s access to elections records remain unresolved, resulting in the instant request for an opinion.

ANALYSIS

In your request you ask whether the proposed audit of the counties’ precinct procedural audits exceeds the scope of the Auditor General’s authority and whether staff of the Auditor General may be restricted from handling election records should the proposed audits proceed.

A. The Constitution does not authorize the Auditor General to audit local units of government.

The office of the Auditor General was created pursuant to article 4, § 53 of Michigan’s 1963 Constitution, which provides, in part:

The legislature by a majority vote of the members elected to and serving in each house, shall appoint an auditor general, who shall be a certified public accountant licensed to practice in this state, to serve for a term of eight years. . . . The auditor general shall conduct post audits of financial transactions and accounts of the state and of all branches, departments, offices, boards, commissions, agencies, authorities and institutions of the state established by this constitution or by law, and performance post audits thereof.

Under the prior constitution, the Auditor General was an elected official of the executive branch, and the Legislature was given complete authority to establish the scope of the Auditor General’s powers. Const 1908, art 6, § 1. The 1963 Constitution eliminated the office of Auditor General as it had existed and created the new legislative Auditor General, an official appointed by the Legislature with only the specific powers listed in the constitutional provision. Section 53 expressly provides that the Auditor General “shall be assigned no duties other than those specified in” that section. Const 1963, art 4, § 53. Thus, the Legislature cannot confer any additional duties upon the Auditor General. OAG, 1963–1964, No. 4284, pp 278, 279 (February 18, 1964).

The question then is, what is the scope of the Auditor General’s authority in relation to the Bureau of Elections’ post-election audit process?

First, it should be clarified that the Auditor General is not authorized to conduct post-election audits. Consistent with article 2, § 4(1)(h) of the Constitution, the Legislature conferred the authority to conduct postelection audits solely on the Secretary of State and the county clerks. MCL 168.31a. With respect to the November 2020 general election, the Secretary of State and the county clerks have completed their audits, and those audits, and the results of those audits, are the only audits that constitute those required by article 2, § 4(1) (h) of the Constitution. Further, the Legislature could not re-assign this function to the Auditor General since conducting post-election audits is not a duty accorded the Auditor General by § 53.

Second, it must be understood who may be audited. Pursuant to § 53, the Auditor General has authority to conduct “financial” or “performance” audits “of the state and of all branches, departments, offices, boards, commissions, agencies, authorities and institutions of the state[.]” Const 1963, art 4, § 53. The Bureau is an agency within the Michigan Department of State and is, therefore, subject to the Auditor General’s audit authority. As noted in your request, the Bureau does not dispute that it may be subject to an audit. However, in interpreting § 53, the Attorney General’s office has repeatedly concluded that the Auditor General does not have authority to audit local units of government. See, e.g., OAG, 2003–2004, No. 7158, p 141, (June 29, 2004); OAG, 1997–1998, No. 6970, p 108 (January 28, 1998); OAG, 1983–1984, No 6225, p 303 (May 7, 1984); Letter Opinion of the Attorney General to Auditor General Albert Lee, dated December 17, 1975; Letter Opinion of the Attorney General to Auditor General Albert Lee, February 6, 1975.

This conclusion is supported by the following exchange found in the Official Record of the 1961 Constitutional Convention, discussing the elimination of the office of Auditor General, as it then existed, and the creation of the new office of legislative Auditor General:

MR. AUSTIN: Mr. Chairman--thank you, Mr. Downs--I would like to ask one question of Mr. Martin, too, in regard to the elimination of the auditor general, whom, I presume, will be replaced by the legislative auditor. We have indicated on page 1, line 12, of the substitute proposal that

The legislative auditor general shall conduct comprehensive fiscal postaudits of all transactions and accounts kept by or for all branches, departments, offices, boards, commissions, agencies, authorities and institutions of the state….

Now am I to assume this would exclude local units of government, Mr. Martin?

MR. MARTIN: Yes, Mr. Austin, that is correct. It is not intended that the legislative auditor general should do anything more than handle state agencies, departments and institutions. These other units would, of course, continue to be subject to such audit as the legislature required. At the present time the counties are audited. The townships are not audited, generally, unless there are special problems. The school districts are not audited except that the legislature requires that they themselves have an independent audit made. So there are different provisions and it is to be presumed that the legislature would make such provision for them. They would not be audited by the legislative auditor general. [1 Official Record, Constitutional Convention 1961, pp 1681– 1682 (emphasis added).]

Accordingly, county clerks, as members of local units of government, are not subject to the Auditor General’s audit authority.

Third, it is necessary to understand what it is that may be audited. The Office of the Auditor General describes performance audits in the following manner:

Performance audits provide findings or conclusions based on an evaluation of sufficient, appropriate evidence against criteria. Performance audits provide objective analysis to assist management and those charged with governance and oversight in using the information to improve program performance and operations, reduce costs, facilitate decision making by parties with responsibility to oversee or initiate corrective action, and contribute to public accountability. . . .

While a performance audit may include a number of objectives, in general, a performance audit is conducted to examine how effectively, efficiently, and economically a government entity performs a function or operates a program. See also OAG, 1963–1964, No. 4284, pp 278, 280 (February 18, 1964) (“A performance postaudit is an examination of the effectiveness of administration, its efficiency and its adequacy in terms of the program of the departments or agencies as previously approved by the legislature”), quoting Report by the Joint Committee on Legislative Powers and Executive Branch, Official Record, Constitutional Convention of 1961, March 15, 1962, pp 1672–1673.

As noted above, the Auditor General’s “objectives” for the Bureau audit include “[t]o assess the sufficiency of selected [Bureau of Elections] post-election review procedures[.]” The Bureau understands the reference to “post-election review procedures” to mean the post-election audit process. Post-election audits are principally governed by § 31a of the Michigan Election Law, pursuant to which the Secretary of State is required to: (1) prescribe procedures for election audits that include reviewing various election-related documents and processes used during an election; (2) ensure that the Secretary and the county clerks conduct election audits, including statewide audits; (3) train and certify county clerks and their staff to conduct election audits in their counties; (4) ensure that audits include auditing at least one race, local and/or statewide, in each randomly selected precinct; and (5) supervise the county clerks in the performance of the required election audits. MCL 168.31a(2).

Generally speaking then, a performance audit of the post-election audit process would involve examination by Auditor General staff of how effectively, efficiently, and economically the Bureau of Elections performed its functions that are prescribed by the Legislature in § 31a with respect to the audits of the November 2020 general election.

The Bureau does not disagree that its post-election audit process may be audited. But the manner in which the Auditor General proposes to conduct the audit does not appear to be confined to auditing the Bureau. The Auditor General stated in his response to the Bureau that “[t]o assess the sufficiency, clarity, and other attributes of the [Bureau’s] provided procedures and training,” staff “intend to retrace some of the county and local election officials’ steps to determine whether consistent application of post-election review procedures occurred.” (Appendix C, July 15, 2021, Ringler Letter.) As it has been explained to the Bureau, Auditor General staff intend to select a number of jurisdictions that conducted procedural audits regarding the November election, go to those jurisdictions and obtain access to relevant election records in the possession of the local clerks, and then staff will conduct precinct procedural audits by reviewing election records in accordance with the Bureau’s audit procedures. Presumably, Auditor General staff will then compare the results of their “procedural audits” with the procedural audits performed previously by the county clerks for the jurisdictions, and then potentially compare results amongst the other audited jurisdictions.

The proposed re-creation of the procedural audits by Auditor General staff would, for all intents and purposes, be an audit of the local clerks’ performance of their post-election procedural audits. But, as noted above, the Auditor General has no authority to audit local units of government either directly or in connection with an audit of a state agency, such as the Bureau of Elections.

In OAG, No. 6970, the Attorney General examined a provision in the fiscal year 1996—1997 appropriations act for the Michigan Department of Transportation (MDOT) that required the Auditor General to “perform audits and make investigations of the disposition of all state funds received by county road commissions . . . and cities and villages for transportation purposes to determine compliance with the terms and conditions” of the applicable law by MDOT. The appropriations act directed the local units of government to make the pertinent records available to the Auditor General for this review. The opinion observes that the Auditor General interpreted this provision to merely allow an examination of records of local governmental units in conjunction with a performance audit of a state department and not as authorization to audit the local governmental unit. But the Attorney General rejected this interpretation of the provision, reasoning that the plain language of the appropriations act did not “merely allow the Auditor General to access a local governmental unit’s records in the course of auditing state agencies; it affirmatively requires that the Auditor General audit local governmental units.” OAG, No. 6970, p 111. The Attorney General concluded:

County road commissions and other local governmental units are not entities “of the state” as that term is used in Const 1963, art 4, § 53, even when they are using state funds allocated under 1951 PA 51. Accordingly, legislation requiring the Auditor General to audit such local governmental units is unconstitutional. [ Id. ]

Thus, the Attorney General opined that the provision in the appropriations act violated article 4, § 53, to the extent it required the Auditor General to audit local units of government.

In OAG, No. 7158, the Attorney General addressed whether the State Board of Education or the Superintendent of Public Instruction could delegate their authority to examine or audit local school records to the Auditor General to enable the Auditor General to review those records to conduct a performance audit of the Center for Educational Performance and Information (CEPI), a state agency within the Department of Management and Budget. OAG, No. 7158, pp 141—142. In order to receive state school aid, schools must allow their records to be audited by the Department of Education, over which the Superintendent presides as chief executive officer. ( Id ., p 142.) The Auditor General wanted to review the local records “in order to audit the accuracy and completeness of computer-stored data maintained by CEPI.” ( Id .)

The Attorney General concluded that neither the Board nor the Superintendent were statutorily authorized to delegate their authority to examine or audit school records to the Auditor General, and that doing so would violate separation-of-powers principles since the Auditor General is a member of the legislative branch and “the legislative branch may not exercise, a power conferred by the Legislature on these officers and this agency of the executive branch.” ( Id ., citing Const 1963, art 3, § 2.)

As discussed below in Part B, both opinions further concluded that the Auditor General could request access to records directly from the local units of government.

Both OAG, No. 6970 and OAG, No. 7518 generally confirm that the Auditor General cannot audit local units of government in connection with auditing a state agency simply because the local unit receives funding from the state agency related to the audit, or because a local unit is itself subject to audits by a state agency.

The same rationale applies here. The Auditor General cannot audit the work of the county clerks or other local elections officials as part of conducting an audit of the Bureau. The fact that the local clerks perform postelection audits and perform them under the general supervision of the Secretary of State does not render them subject to the Auditor General’s audit authority.

While the Auditor General states that the purpose of the re-creations is to “assess” the “sufficiency” and “clarity” of the Bureau’s election audit procedures and training, such an assessment can, and must, be accomplished by means other than an audit of local clerks’ performances.

For instance, Auditor General staff could seek to interview local clerks regarding any concerns they have with respect to the Bureau’s training or instructions for conducting post-election audits. Staff can review, and have already been provided with, the county clerks’ completed audit data that was provided electronically to the Bureau. Staff can examine training records to determine whether clerks appropriately participated in trainings or staff can participate in a training themselves. And, to the extent Auditor General staff wish to re-create a precinct procedural audit, the Bureau has informed Auditor General staff that it is willing to re-perform, to the extent possible, one of the five procedural audits Bureau staff conducted. There may be additional ways to assess the Bureau’s procedures, but these come readily to mind.

The Auditor General’s proposal to re-create county procedural audits raises other concerns as well. As noted above, the Legislature has entrusted the post-election audit process to the Secretary of State and county clerks. MCL 168.31a. They are the only persons with the authority and sufficient expertise and training to conduct post-election audits. Purported “post-election audits” conducted by Auditor General staff would constitute a usurpation of this process.

It is my opinion, therefore, that while the Auditor General may subject the Michigan Bureau of Elections to a performance audit concerning the Bureau’s procedures for conducting post-election audits under MCL 168.31a, article 4, § 53 of the Michigan Constitution does not authorize the Auditor General to audit county clerks or other local units of government to facilitate his audit of the Bureau of Elections.

B. The Auditor General and his staff may be subject to restrictions regarding the handling of election records.

You also ask whether the Auditor General and his staff may be subject to restrictions concerning the custody and handling of election records. Because the Auditor General is authorized to subject the Bureau of Elections to a performance audit concerning the Bureau’s procedures for post-election audits, and conducting the audit might involve review of election records, it is necessary to address this question.

The Legislature has enacted legislation expressly providing for the Auditor General’s access to records. See MCL 13.101. However, these statutes are principally directed at the Auditor General’s authority to acquire records from those entities he is authorized to audit—the state and all branches, departments, offices, boards, commissions, agencies, authorities and institutions of the state. Const 1963, art 4, § 53. For example, subsection 1(3) provides that “[u]pon demand of the auditor general . . . the officers and employees of all branches, departments, offices, boards, commissions, agencies, authorities, and institutions of this state shall produce or provide for access and examination all books, accounts, documents, records, and electronically stored information . . . of their respective branch, department, office, board, commission, agency, authority, and institution and truthfully answer all questions relating to their books, accounts, documents, records, and electronically stored information . . . of their respective activities and affairs.” MCL 13.101(3) (emphasis added).

Certain election records that might be relevant to the audit may be in the possession of local clerks, not the Bureau. If that is the case, the Auditor General may simply request information from the relevant local units of government, to which request the local units may respond, or request information from those units pursuant to the Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq . See OAG, No. 6970, p 111; OAG, No. 7158, p 144 n 3. The Auditor General also has the authority to compel the production of records by subpoena if the information sought is in connection with an audit of a state agency:

In connection with audits and examinations described in this act, the auditor general, deputy auditor general, or any individual appointed to make audits and examinations may issue subpoenas, direct the service of the subpoena by any police officer, and compel the attendance and testimony of witnesses; may administer oaths and examine any individual as may be necessary; and may compel the production of books, accounts, papers, documents, records, and electronically stored information, including, but not limited to, confidential information. The orders and subpoenas issued by the auditor general, deputy auditor general, or any individual appointed with the duty of making the examinations provided in this subsection may be enforced upon application to any circuit court as provided by law. [MCL 13.101(5).]

The Attorney General has noted that this statute is not limited to state entities, but also applies to local units of government. OAG, No. 7158, p 144 (“The subpoena power . . . . is not limited to records maintained by state agencies.”) However, in OAG, No. 7158, the Attorney General further observed that the obligation to produce records “may be affected by state or federal laws restricting or prohibiting the disclosure of certain records.” ( Id ., citing the Family Educational Rights and Privacy Act of 1974, 20 USC 1232g.)

As noted in your request, federal law, specifically the Civil Rights Act of 1960, 52 USC 20701 et seq. , requires the retention of election records and necessarily limits access to election-related materials. The Civil Rights Act requires “every officer of election” to retain, for twenty-two months from the date of an election for federal office, “all records and papers which come into [the officer’s] possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election[.]” 52 USC 20701. The Department of Justice has clarified that the term “records” as used in § 20701 includes records created in “digital or electronic form.” A failure to comply with the retention requirements may result in a fine or imprisonment, id ., and the destruction or alteration of an election record may likewise result in a fine or imprisonment, 52 USC 20702.

The duty to retain records includes the duty to safeguard those records as well. An issue recently arose in the State of Arizona, in connection with the presidential election “audit” being performed by a third-party firm at the direction of the Arizona Senate. The Department of Justice sent a letter to the Arizona Senate raising concerns over the handling of election records by the firm conducting the audit. (Appendix D, August 4, 2021, Memorandum to Municipal and County Election Officials, Attachment – May 5, 2021, Letter From U.S. Department of Justice, Civil Rights Division, to Arizona State Senator Karen Fann.) The letter observes that federal law creates a duty to safeguard and preserve federal election records:

The purpose of these federal preservation and retention requirements for elections records is to “secure a more effective protection of the right to vote.” State of Ala ex rel Gallion v Rogers , 187 F Supp 848, 853 (MD Ala 1960 ), aff’d sub nom Dinkens v Attorney General , 285 F2d 430 (CA 5, 1961)(per curiam), citing H.R. Rep. 956, 86thCong., 1 Sess. 7 (1959); see also Federal Prosecution of Election Offenses, Eighth Edition 2017 at 75 (noting that “[t]he detection, investigation, and proof of election crimes–and in many instances Voting Rights Act violations– often depend[s] on documentation generated during the voter registration, voting, tabulation, and election certification processes”). [ Id ., pp 1—2.]

The letter goes on to note that if a state designates a custodian for such election records, then the “duty to retain and preserve any record or paper so deposited shall devolve upon such custodian.” ( Id. , quoting 52 USC 20701.) The Department of Justice states that it interprets the Civil Rights Act to require:

[T]hat “covered election documentation be retained either physically by election officials themselves, or under their direct administrative supervision.” See Federal Prosecution of Election Offenses at 79. In addition, if the state places such records in the custody of other officials, then the Department views the Act as requiring that “administrative procedures be in place giving election officers ultimate management authority over the retention and security of those election records, including the right to physically access” such records. Id . [ Id ., p 2.]

And in a very recent publication, the Department of Justice noted the dangers attendant to providing access to election records:

Where election records leave the control of elections officials, the systems for maintaining the security, integrity and chain of custody of those records can easily be broken. Moreover, where elections records are no longer under the control of elections officials, this can lead to a significant risk of the records being lost, stolen, altered, compromised, or destroyed.

This office has previously discussed access to election records and the federal Civil Rights Act. OAG, 2009– 2010, No. 7247, p 134 (May 13, 2010), addressed whether voted ballots are subject to Michigan’s FOIA. OAG, No. 7247 concluded that voted ballots are subject to FOIA but that the Secretary of State, pursuant to her supervisory authority under MCL 168.21, could issue directions to local clerks for the processing of FOIA requests that included directions that only clerks or their staff could handle and photocopy voted ballots in order to ensure the physical integrity and security of the ballots as required by law, including the federal Civil Rights Act. ( Id ., pp 139—140.)

Here, while the Auditor General is a constitutional officer and member of the legislative branch of government, Const 1963, art 4, § 53, he is not a state or local election official or an “officer of election” as that term is defined in 52 USC 20706. The federal statute speaks only of the U.S. Attorney General as being able to demand access to protected election records. 52 USC 20703. And as discussed in OAG, No. 6970 and OAG, No. 7158, the Auditor General is not entitled to access or demand local government records through the state agency being audited, here the Bureau. Thus, the Auditor General has no right or authority to access local election records for purposes of conducting an audit of a state agency in a manner that would be inconsistent with or potentially violate federal law, thereby placing himself, his staff, or local election officials at risk of prosecution or other action.

As noted in OAG, No. 7247, the Secretary of State is the chief election officer of the state and shall have supervisory control over local election officials in the performance of their duties under the provisions of Michigan Election Law. MCL 168.21. Further, under § 31 of the Michigan Election Law, she is required to “[a]dvise and direct local election officials as to the proper methods of conducting elections.” MCL 168.31(1) (b). Under these statutes, the Secretary has a duty to ensure that the local election officials she supervises maintain the physical integrity and security of all paper, electronic, or digital election records consistent with requirements of state and federal law.

Accordingly, consistent with her statutory authority and the analysis provided in OAG, No. 7247, the Secretary may direct that any local election official subjected to a request for election records by the Auditor General should treat the request in the same manner as a FOIA request. In other words, Auditor General staff cannot take possession or control of election records or be in the presence of election records outside the presence of local election officials or Bureau of Elections staff, and Auditor General staff may not handle or physically touch election records. Auditor General staff will still be able to review and inspect records with the assistance of local election officials. And, of course, the Auditor General could formally request copies of election records pursuant to the FOIA. These methods would protect both Auditor General staff and local election officials from potential unintentional violations of the law.

It is my opinion, therefore, that the Secretary of State, in her role as the Chief Elections Officer, may exercise supervisory authority over local elections officials responding to a request for election records by the Auditor General by issuing directions for the review of such records in order to protect the physical integrity and security of the records consistent with state and federal law.

Although not mentioned in your request, staff at the Bureau subsequently advised that Auditor General staff may have an interest in accessing voting equipment. For purposes of this opinion, it is assumed that accessing voting equipment means physically examining, handling, or operating the equipment. According to the Bureau, voting equipment includes tabulators (the machines that count the paper ballots cast by voters), voter assist terminals (the machines that assist voters with print disabilities mark a paper ballot), and election management system machines (the computers loaded with the relevant election management system software that are used to program the tabulators). This equipment is in the possession of the local clerks.

To the extent any of this equipment constitutes or contains an electronic or digital election record, it would be subject to § 20701 and the requirements of the federal Civil Rights Act. Outside of that, the Bureau, pursuant to the Secretary’s authority in MCL 168.31(1), has instructed or directed local clerks that only certain individuals should be allowed access to voting equipment, including local clerks and their staff, Bureau of Elections staff, staff for election management system vendors and their licensed staff and contractors, and voting system test laboratories that have been accredited by the federal Election Assistance Commission. (Appendix D.) The Bureau notes that providing unauthorized individuals access to voting equipment may terminate the chain of custody for the equipment, which would render it impossible for the Bureau to verify that the equipment remains in the configuration in which it was certified for use in Michigan. ( Id ., p 5.)

As discussed above, the Auditor General and his staff do not have a constitutional right under article 4, § 53 to demand or compel access to local government records. And the Bureau has not instructed local clerks that the Auditor General or his staff are individuals who can access voting equipment. Further, voting equipment does not fall within the definition of a “public record” subject to Michigan’s FOIA requirements, see MCL 15.232 (i), (l), nor does computer software, see MCL 15.232(i), (j). In addition, the Auditor General’s subpoena power is limited to compelling the appearances and testimony of witnesses and “the production of books, accounts, papers, documents, records, and electronically stored information, including, but not limited to, confidential information.” MCL 13.101(5). Voting equipment does not fall within these categories.

The only remaining avenue for the Auditor General or his staff would be simply requesting that a local clerk permit access to voting equipment. But again, the Bureau has directed that only authorized individuals be allowed access to voting equipment, and local elections officials are expected to follow the Secretary’s instructions issued through the Bureau. See, e.g., Hare v Berrien County Bd or Election Commissioners, 373 Mich 526, 530 (1964); MCL 168.931(h) (“A person shall not willfully . . . disobey a lawful instruction or order of the secretary of state as chief state election officer. . . .”)

It is my opinion, therefore, that the Secretary of State, in her role as the Chief Elections Officer, may exercise supervisory authority over local elections officials responding to a request for access to voting equipment by the Auditor General by issuing directions that access to voting equipment should not be permitted in order to protect the physical integrity and security of the equipment consistent with state and federal law.

Sincerely,

DANA NESSEL, Attorney General.

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Notes:

See November 2020 General Election Results, available at 2020 Michigan Official General Election Results -11/03/2020 (mielections.us)

These events are discussed in the Michigan Senate Oversight Committee's report regarding the November 3, 2020, general election, available at Oversight Committee Report | Michigan Senate Republicans (misenategop.com), (accessed August 5, 2021).

See Post-Election Audit Manual, available at Post Election Audit Manual 418482 7.pdf (michigan.gov) , and worksheet, available at Post-Election Audit Checklist (michigan.gov), (accessed August 5, 2021.)

A risk-limiting audit involves the random selection of a number of ballots cast across the State, which are then hand-reviewed by the local clerk for accuracy. See Statewide risk-limiting election audit process to begin at 11 a.m., January 11, 2021, available at SOS - Statewide risk-limiting election audit process to begin at 11 a.m. (michigan.gov), (accessed August 5,2021.)

See Bureau of Elections announces most comprehensive post-election audits in state history, December 9, 2020, available at SOS - Bureau of Elections announces most comprehensive post-election audits in state history (michigan.gov), (accessed August 5, 2021.)

Id.

See Statewide election audit process affirms presidential election outcome, February 12, 2021, available at SOS - Statewide election audit process affirms presidential election outcome (m¡ch¡gan.gov) , (accessed August 5,2021.)

See Post-election audit report confirms accuracy and integrity of Michigan's election, April 22, 2021, available at SOS - Post-election audit report confirms accuracy and integrity of Michigan's election , (accessed August 5, 2021.)

See Audit Report, Bureau of Elections, available at https ://audgen. michigan. gov/wp-content/uploads/2019/12/ rs231023519.pdf , (accessed August 5, 2021.)

See Auditor General, Work in Progress, Bureau of Elections - 231-0235-21, available at Bureau of Elections - Michigan Office of the Auditor General , (accessed August 5, 2021.)

Constitutional Convention debates are considered a useful resource in interpreting constitutional provisions. House Speaker v Governor , 443 Mich 560, 580–581 (1993).

The Auditor General performs audits in accordance with generally accepted auditing standards by the American Institute of Certified Public Accountants, the Comptroller General of the United States, and the federal Single Audit Act. See Audit Details - Michigan Office of the Auditor General , (accessed August 5, 2021.)

See Government Auditing Standards, 2018 Revision, Performance Audits 1.21, available at GAO-21-368G, Government Auditing Standards: 2018 Revision Technical Update April 2021 , (accessed August 5, 2021.)

See Auditor General, Work in Progress, Bureau of Elections – 231-0235-21, available at Bureau of Elections -Michigan Office of the Auditor General , (accessed August 5, 2021.)

To date, staff for the Auditor General have not provided any written correspondence to the Bureau specifically describing how staff intend to conduct audits in the local jurisdictions.

Further, even if it was permissible, it may be difficult for Auditor General staff, who are not experienced election officials, to accurately re-create a county’s procedural audit. As noted in the request, in performing an audit, clerks break seals on containers and remove election records from those containers, and then handle those records to conduct the audit. Once an audit has been completed, election records may be stored in different containers, combined, or possibly even inadvertently damaged or misplaced. And in any of those cases, the result of the Auditor General’s audit may differ from the county’s audit for reasons completely unrelated to the sufficiency or clarity of the Bureau’s audit procedures and training.

Michigan Election Law also imposes retention requirements for various election records. See, e.g., MCL 168.615c, 168.765a(7), 168.811, 168.767, 168.798(2), 168.799a(4). A complete retention schedule is available at Document Retention Schedule (michigan.gov) (accessed August 5, 2021.) Michigan law also punishes the tampering with or destruction of election records or voting equipment. See MCL 168.932(b), (c).

See U.S. Department of Justice, Federal Law Constraints on Post-Election “Audits,” July 28, 2021, available at Federal Law Constraints on Post-Election “Audits” (justice.gov) , (accessed August 5, 2021.)

See U.S. Department of Justice, Federal Law Constraints on Post-Election “Audits,” July 28, 2021, available at Federal Law Constraints on Post-Election “Audits” (justice.gov) , (accessed August 5, 2021.)

In the event the Auditor General subpoenas election records pursuant to his authority in MCL 13.101(5), the affected city, township, or county clerk should contact the Bureau of Elections and consult with local legal counsel for assistance in responding.

It is unclear why Auditor General staff would seek to access voting equipment in the context of auditing the Bureau’s post-election audit process as the voting equipment is not used by the clerks in conducting their procedural audits. These audits involved a hand-count of the race selected for auditing, which was the U.S. Senate race with respect to the November 2020 general election.

The Michigan Election Law provides that “a county clerk, in consultation with the clerk of each city and township located in that county” will “determine which electronic voting system will be used in the county[.]” MCL 168.37a. The governing bodies for the local units of government are responsible for purchasing voting equipment. MCL 168.794a, 168.794b. All vote-tabulation equipment used in Michigan must meet certain requirements, see MCL 168.795, and be certified by the Board of State Canvassers following the Bureau of Elections’ staff review and recommendation, see MCL 168.37, 168.795a. Information about Michigan voting systems and certification is available at https://www.michigan.gov/ sos/0,4670,7-127-1633_11976---,00.html .

In that situation, the Bureau may determine that the equipment in question is no longer certified for use in Michigan, or that other remedial procedures must be performed before the equipment can be used. (Appendix D, p 6.) The cost of new equipment or remedial procedures would be borne by the affected local unit of government. Notably, the Secretaries of State for Arizona and Pennsylvania recently determined that voting equipment in their respective states could no longer be used following access of that equipment by third party firms. (Appendix D, Attachments.)

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