A Michigan Court of Claims judge has ruled the state Bureau of Elections cannot deny public access to records that detail the ballot options used by individual voters to cast their ballots.
The bureau changed its policy on responding to requests for that information through the state's Freedom of Information Act following the 2022 election, when voters amended the Michigan Constitution to add an early voting option. The state until recently kept a publicly available list of who voted in person on Election Day and who used an absentee ballot.
The Secretary of State says it could be possible to combine that data with other publicly available information in smaller, low-turnout precincts, to determine the choices individual voters make in an election. That, the elections bureau said, violates the right to a secret ballot.
A right-wing activist, Phani Mantravadi, sued the elections bureau, arguing the state’s redactions violate the Michigan Freedom of Information Act.
Court of Claims Judge Christopher Yates said the state’s solution of denying access to previously public records based on the possibility of someone cobbling together disparate sets of information to determine how a small group of people voted is too sweeping.
“To be sure, that circumstance is so uncommon that the parties agree it almost certainly will affect, at most, a very small collection of voters in each election,” Yates wrote, “but defendant insists that that mere possibility is serious enough to justify shielding from disclosure all voting-type information for all voters across the entire state.”
Plaintiffs’ attorney Thomas Lambert told Michigan Public Radio the mere prospect of a problem does not qualify as an exception to the open records law.
“Which is why the courts for many decades have been very clear that the standard to withhold information has to be more than theoretical. They have to show ‘would’ not ‘could,’” he said. “Theoretical is not good enough because it gives the government way, way too much power to withhold public information.”
A spokesperson for Secretary of State Jocelyn Benson said her office is considering its next steps.
“Secretary Benson and the department have a clear obligation to safeguard the constitutional right to a secret ballot for every Michigan voter. Preserving the privacy of a voter’s ballot is one of the most important responsibilities election officials have,” said Chief Communications Officer Angela Benander. “Voters in smaller, rural jurisdictions are especially vulnerable to losing this privacy if their method of voting is made public.”
In the meantime, the judge ordered a hearing to determine whether there is a compromise position that would respect the intent of Michigan’s Freedom of Information Act and ensure ballot secrecy even when it potentially affects only a small group of voters.
