LANSING, Mich. (Michigan News Source) – In part one of a two part-series, Michigan News Source reported that Michigan Democratic Secretary of State Jocelyn Benson is being sued by Scott Aughney, a member of Citizens for Electoral Justice, for allegedly obstructing Freedom of Information Act (FOIA) requests and limiting access to critical voter registration data.

Aughney, who has been investigating election issues since February 2021, filed the lawsuit in the Michigan Court of Claims, arguing that recent changes by the Bureau of Elections under Benson’s direction have reduced transparency. Key allegations include restricted access to electronic poll book data, altered voter history reports, and the removal of timestamps from voter files, all of which Aughney claims undermine public oversight and election integrity. He is seeking injunctive relief to restore access to this crucial data and ensure the transparency of future elections.

Context of the lawsuit.

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This lawsuit is part of a broader movement by election activists seeking greater transparency in Michigan’s election system. Amidst claims of irregularities and potential fraud, many activists have filed numerous FOIA requests and lawsuits to obtain voting records. These actions stem from suspicions about the integrity of past elections and a desire to scrutinize the system ahead of future elections.

At least one other media outlet has reported on these FOIA lawsuits – the Detroit News. In their report, they classify the accusations by the activists (who say we have a fundamentally flawed election system) in the state as “unproven.” However, that is exactly why the activists say are requesting voting data through FOIA – so they can track voting records and verify their claims.

Challenges faced by clerks.

According to the News article, Michigan’s clerks find themselves in a challenging position, balancing the public’s right to access information with the need to protect voter privacy and election security. The News confirms in their article that the Michigan Bureau of Elections has advised clerks to deny certain FOIA requests, citing concerns over disclosing sensitive information.

This directive came in May 10, 2023 and has led to legal conflicts, with clerks being sued for rejecting FOIA requests. Bureau of Elections’ Lori Bourbonais wrote in the directive, ”The disclosure of security and technical information is exempt from FOIA and may not be properly redacted if the file is produced by an individual clerk instead of the bureau The disclosure of sensitive information compromises the integrity of Michigan’s elections and may warrant referral for investigation.”

The state’s defense.

The Michigan Secretary of State’s office has intervened in many of these FOIA lawsuits, defending clerks and emphasizing the importance of safeguarding election data. The state argues that disclosing certain information could compromise the integrity of elections and violate privacy laws.

Jonathan Brater, Michigan’s elections director, has supported these measures, reinforcing the need to protect proprietary software information and voters’ personal data. Despite these defenses, the growing number of lawsuits indicates increasing public demand for transparency and accountability in the election process.

The current legal battle between Aughney and Benson highlights a critical debate about transparency and security in Michigan’s election system and the validity of the voter rolls especially amid a landscape where at least 53 Michigan counties have more active registered voters than they have adult citizens who are over the age of 18.

Aughney alleges data dumping.

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Aughney tells Michigan News Source that his investigations have led to a deeper dive into the electronic poll books than in other states and he alleges, “that thing is dumping data during the election process, presumably who has come in to vote throughout the day.”

In Michigan elections, a poll book is a crucial tool used to ensure the integrity and efficiency of the voting process. It verifies a voter’s identity and eligibility to vote and includes a list of registered voters in the precinct including their names, addresses and other identifying information. When voters go to their precinct to vote, they get “checked in” through the poll book to guard against double voting via absentee ballot and on-site voting.

Once the voter is verified, they receive a ballot. The poll book is also the official “record” of who voted in the election. E-poll books (electronic poll books) provide a digital means of verifying voters and checking them in and update records in real time.

Predictions about the case.

Aughney adds that if the case goes through the court process and isn’t dismissed, “I have a feeling that it’s going to get nasty because of the witness list, because I’m going to be calling in three people from the Bureau of Elections in addition to J. Alex Halderman because of a statement he made in his (Antrim) report.”

Halderman was the state’s key expert in the Antrim County case regarding a lawsuit over alleged election shenanigans in the county after election results were misreported. Halderman is a professor of computer science and engineering at the University of Michigan.

Others step forward to verify claims of missing records and discrepancies.

Stephanie Beltninck with Citizens for Electoral Justice contacted Michigan News Source to relay information she has related to the case. She pointed out that in Isabella County, from February to June 2023, clerks had been providing FOIA requests for Electronic Poll Book (EPB) CSV data with sensitive information redacted.

This allowed residents to compare their voter history with records from the Michigan Bureau of Elections. She said that Clarissa Filhart led a group of 40 individuals to retrieve and compare EPB data with Bureau records and they uncovered discrepancies such as missing timestamps, incorrect voting jurisdictions, wrong registration dates, and voters with differing voter ID numbers. The fact that election activists are finding voters with multiple voter ID numbers is very disconcerting to them.

Beltninck said that the Bureau of Elections started instructing clerks to deny FOIA requests for EPB data, directing voters to the Bureau for their histories which hindered comparison efforts. She calls the directive illegal, explaining that public records should be accessible for audit as issues such as multiple voter IDs for individuals and outdated registrations potentially enable voter fraud.

Notably, evidence she provided to us with FOIA data from 2020 shows an increasing number of voters without voter IDs at all, raising concerns about the integrity and accuracy of certified election records.

Clarissa Filhart also contacted Michigan News Source about the described findings and told us that in March 2023, the Wise Township Board in Clare voted to preserve the electronic poll book records from the November 8, 2022 election, supporting Clerk Doris Methner’s compliance with state laws that mandate the retention of election records – MCL 168.810 and 168.811.

Despite the laws, Filhart contends that the Michigan Bureau of Elections, under Jocelyn Benson, instructs clerks to delete these records after the final canvass, contradicting state and federal retention laws. She said, “In deference to these two laws, the Michigan Bureau of Elections, at the guidance of Jocelyn Benson, sends out mandates to all of the city and township clerks directing them to delete the electronic poll book flash drive record and uninstall the electronic poll book from their laptops seven days after the final canvas.”

Discrepancies in the November 8, 2022 election records were found by Filhart including voter ID number differences, internet connectivity of voting equipment, and altered vote times.

Filhart went on to tell us, “I have sent numerous FOIA requests to Isabella County Clerks and they will not comply in fulfilling them. Rather they direct me to the bureau. The bureau has encrypted and password protected the electronic poll book records and our clerks cannot access them even if they wanted to.”

She concludes that the Michigan Bureau of Elections has not passed the election records “audit” and is not following the law. She goes on to say that the Bureau is trying to “hide and cover up what has been taking place inside the equipment software that they gifted to clerks throughout the state.”

A threatening letter

Filhart also sent Michigan News Source what appears to be a threatening letter to the Isabella County Clerk who was requesting guidance on the fulfillment of a FOIA request. In it, Michael Brady, Chief Legal Director with the Michigan Dept. of State, tells her that requests for electronic poll book data must be directed to the Michigan Bureau of Elections and that the county’s disclosure of “sensitive” information compromises the integrity of Michigan’s elections and “may warrant an investigation by the Department of State or the Department of Attorney General, and result in fiscal implications for the county.”

The legal battle over election transparency in Michigan has far-reaching consequences.

In the midst of legal battles and growing demands for transparency, the lawsuit brought forth by Scott Aughney against Michigan Secretary of State Jocelyn Benson sheds light on the intricate balance between public oversight and the protection of sensitive election data.

As activists push for access to crucial voting records, the courts will ultimately decide the fate of transparency in Michigan’s electoral processes. The outcome of this case could set significant precedents, not only in terms of data accessibility but also in reinforcing the integrity of future elections. With stakes high and tensions mounting, the resolution of this lawsuit carries profound implications for the democratic fabric of Michigan’s electoral system.