Opinion
SC 167213 COA 365964
10-25-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v. JAMES DONALD HOLKEBOER, a/k/a JAMES DAVID HOLKEBOER, Defendant-Appellee.
Kent CC: 22-011187-FH
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the April 18, 2024 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Welch, J. (concurring dubitante).
In this case, defendant, who served as an election inspector during the August 2022 primary election, is charged with election fraud for falsifying election returns or records under MCL 168.932(c) (which makes it illegal for an election inspector to "fraudulently remove or secrete" certain election records), and using a computer to commit a crime, MCL 752.796. Defendant allegedly used a USB ¶ash drive to copy information from the electronic poll book stored on a laptop at the polling location. The defendant's stated intent was to compare the downloaded data against records he planned to obtain from the county clerk through a request under the Freedom of Information Act, MCL 15.231 et seq. The district court found the allegations sufficient to bind defendant over for trial, and the Kent Circuit Court signaled its agreement by denying defendant's motion to quash the charges. A unanimous panel of the Court of Appeals reversed, holding that, as a matter of law, making a digital copy of protected election records and removing the copy from a polling location did not constitute fraudulent removal or secreting of election records under MCL 168.932(c). See People v Holkeboer, unpublished per curiam opinion of the Court of Appeals, issued April 18, 2024 (Docket No. 365964). Today, this court denies leave to appeal.
I would have preferred to receive additional briefing and hear oral argument in this case based upon my having doubts about the Court of Appeals' interpretation and application of the phrase "fraudulently remove" in MCL 168.932(c). However, the arguments presented by the prosecutor in this Court only challenge the Court of Appeals' interpretation and application of the phrase "fraudulently . . . secrete" in MCL 168.932(c).In my opinion, the phrase "fraudulently . . . secrete" is relatively ambiguous. Given that ambiguity, the Court of Appeals' interpretation of that phrase was reasonable based on the text of MCL 168.932(c), legislative history, and the historical context related to the origins and purpose of the statute. I cannot say that this Court's decision to deny leave to appeal is erroneous given that the focus of the appeal was only upon this section and that the issue of "fraudulent removal" was not appealed to us.
The prosecutor notes that "[a]though the People argued in the lower courts that Defendant's conduct could also meet the dictionary definition of 'remove' when the act of 'removing' something is considered in the context of digital information, the People primarily focus their argument in this application on the term 'secrete.'" Application for Leave to Appeal, pp 19-20 n 2. Rather than challenge the Court of Appeals' interpretation of "remove," the prosecution instead appears to accept the interpretation as correct and argues, in part, that the Court's adopted understanding of "secrete" is effectively the same as "remove."
However, I question whether a different disposition would be required if the issue of fraudulent removal of protected election records under MCL 168.932(c) were squarely before the Court. In an age where protected voter data is primarily stored in an electronic format, it seems that making a digital copy of digital voter data and removing that copy from a polling location is analogous to the physical removal of a piece of paper containing the same information. Under both circumstances, the location of the voter information or data has been changed. When physical or digital copies are made and removed, the information or data now exists in two separate locations simultaneously. While the location of the original might not have changed, the location of the copy has changed. If the information or data is legally protected from public disclosure or there is evidence of an intent to use unprotected information or data for unlawful purposes, then that would appear to satisfy the requirement that the removal be fraudulent.
Thus, contrary to the Court of Appeals' conclusion, in my view there seems to be a meritorious argument that defendant's conduct may have violated the removal prohibition in MCL 168.932(c). Nor do I agree with the Court of Appeals' conclusion that in order for MCL 168.932(c) to be violated, the removal must "tak[e] away the custodian's access to the information altogether." Holkeboer, unpub op at 5. This holding effectively adds language to the text of MCL 168.932(c), and it is difficult to discern a material difference between the Court of Appeals' understanding of a fraudulent removal and a fraudulent secreting of protected election data or information. The Court of Appeals treats them as essentially the same. Thus, I have reservations about the disposition of this case by the Court of Appeals. But my reservations are premised on a holding and legal reasoning that is not before us in this appeal. I cannot fault this Court for declining to take up this issue sua sponte, and for these reasons, I concur dubitante.
I write further to call the Legislature's attention to the reality that MCL 168.932, which makes certain election-related misconduct a felony offense, is outdated. As the Court of Appeals noted, MCL 168.932(c) was enacted by 1954 PA 116 as an update to preexisting statutes with origins in 1859 and 1925. It is doubtful that the 1954 Legislature was thinking about hypothetical future uses of digital computers in the administration of elections or the storage of election or voter information. Digital computing technology was in its infancy in the 1950s. The first commercially available personal computers and early laptops did not hit the commercial market until the 1970s and 1980s respectively. Personal computers and laptops that are akin to modern designs first became available in the 1990s. As to digital storage, universal serial buses (USBs), such as what the defendant in this case used, were not invented until the mid-1990s. Those who are old enough to remember the days of the floppy disc and the CD-ROM know that the storage capacity and convenience of use for those devices was far inferior to the modern USB. Thus, even when MCL 168.932(c) was last amended by 1995 PA 261, it seems fair to presume that neither the digitization of voter and election data nor the use of electronic voting machines were widespread or top of mind for the Legislature.
Various voting machines have existed since the 1880s, and manual punch card voting machines were the most used machines until criticism of those machines grew following the 2000 presidential election between George W. Bush and Al Gore and the recount efforts and litigation that followed. See Thomas, The Council of State Governments, Election Technology Through the Years <https://www.csg.org/2023/11/08/election-technology-through-the-years/> (November 8, 2023) (accessed October 11, 2024) [https://perma.cc/X6ZD-U95Z]; Bush v Gore, 531 U.S. 98 (2000). Punch card voting machines were commonly used in Michigan elections until after the 2000 presidential election. See Carrasco, Jr., Senate Fiscal Agency, State Notes-Topics of Legislative Interest, Updating Michigan's Voting Machine Technology, Fall 2015.
In modern times, most voter information and election records-other than physical ballots-are maintained in a digital format. Michigan's Secretary of State maintains a comprehensive qualified voter file (QVF) database, see MCL 168.509o and MCL 168.509q, that is digitized. It is true that the legislation that mandated the creation of Michigan's statewide QVF was enacted by 1994 PA 441, effective January 10, 1995, and that the QVF was always intended to be maintained in a computerized, electronic format, see MCL 168.509p and MCL 168.509r, as enacted by 1994 PA 441. But under 1994 PA 441, the QVF was not required to be ready for use in elections until January 1, 1998. Since the enactment of 1994 PA 441 and amendment of MCL 168.932 in 1995, there have been additional changes to how elections are conducted in Michigan. For example, language concerning verification of digitized signatures in the QVF was added to the Michigan Election Law by 2005 PA 71. The statute mandating the use of an electronic poll book by cities and townships, which must be downloaded from the state's QVF software, was not enacted until 2018. See MCL 168.668b, as enacted by 2018 PA 614. There was also a substantial update of Michigan's voting machine technologies following the 2000 presidential election and the recount litigation that followed. See Carrasco, Jr., Senate Fiscal Agency, State Notes-Topics of Legislative Interest, Updating Michigan's Voting Machine Technology, Fall 2015. These are all relatively recent developments.
No one disputes that since the 1990s there have been numerous amendments to the Michigan Election Law, an increase in the digitization of voter information and election records, and an increased use of electronic voting machines. Despite these changes, MCL 168.932 has not been updated since 1995 and the operative language has much older origins. This alone does not mean that the statutory language cannot be applied to modern circumstances, as my stated reservations about the Court of Appeals' interpretation of "fraudulently remove" demonstrate. But the historical context I have discussed places limitations on how broadly the current statutory text can be stretched.
Moreover, numerous election officials from the state and local level with differing political affiliations have filed amicus briefs urging this Court to reverse the Court of Appeals. The Court is not doing so today, but it noteworthy that these officials have been uniform in emphasizing the important role that MCL 168.932 and other election crime statutes serve in protecting the integrity of Michigan's elections. Ensuring the integrity of democratic elections is a value that transcends political ideology. If Michigan's election crime statutes have become outdated due to technological advances-and it appears that MCL 168.932 has reached this point-it is incumbent upon the Legislature to update the law. Only the Legislature can ensure that election officials have the statutory tools required to carry out their important duty of administering free and fair elections.