STATE OF MICHIGAN IN THE 16TH JUDICIAL CIRCUIT COURT MACOMB COUNTY, MICHAEL LEWIS BUTZ, Plaintiff, v JENNIFER ZELMANSKI, Clerk, City of Roseville and CITY OF ROSEVILLE, a Michigan Municipal Corporation, Defendants. Michael Lewis Butz, In Pro Per 3105 McKail Road Bruce Township, Michigan 48065 586,596,4945 ‘Timothy D. Tomlinson (P48519) Attomey for Defendants Zelmanski and City of Roseville 22600 Hall Road, Suite 205 Clinton Township, Michigan 48036 586.263.5050 [email protected] Mare D. Kaszubski (P60333) ‘Nathan Petrusak (P75359) Attorneys for City of Sterling Heights and Melanie Ryska 12900 Hall Road, Suite 350 Sterling Heights, Michigan 48313 586.726.1000 James E. Tamm (P38154) Kevin A. McQuillan (P79083) ‘Attorneys for Macomb Twp and Kristi Pozzi 500 Woodward Avenue, Suite 2500 Detroit, Michigan 48226 No, 2023-002852-CZ, HON. EDWARD A. SERVITTO Consolidated with: 2023-002835-CZ; 2023-002836-CZ; 2023-002837-CZ; 2023-002838-CZ; 2023-002839-CZ; 2023-002840-CZ; 2023-02841 -CZ; 2023-002842-CZ; 2023-002843-CZ; 2023-002844-CZ: 2023-002845-CZ; 2023-002847-CZ; 2023-002848-CZ; 2023-002850-CZ; 2023-002851-CZ AFFIDAVIT OF DIRECTOR OF ELECTIONS JONATHAN BRATER, Heather 8. Meingast (P55439) Erik A, Grill (P64713) Assistant Attomeys General Attorneys for Proposed Intervenor- Defendant Secretary of State Jocelyn Benson P.O. Box 30736 Lansing, Michigan 48909 517.335.7659 [email protected] [email protected] Michael J, Murray (P24264) Attorney for City of Mount Clemens, Laura Kropp and Cathleen Martin 65 Southbound Gratiot Avenue Mount Clemens, Michigan 48043 586.463.1578 [email protected] Marianne J, Grano (P82901) Attomey for City of Centerline and Janice Pockrandt 48 South Main Street, Suite 2 Mount Clemens, Michigan 48043 2 & 2 5 é Document received by the MI Mac:313.484.3818 jtamm@kerr-russell, m, Robert J, Seibert (P32098) Attorney for Washington Twp and Stanley Babinski 19500 Hall Road, Suite 101 Clinton Township, Michigan 48038 586.469.3800 [email protected] Ethan Vinson (P26608) Laura Sullivan (P42021) ‘Attorneys for City of Warren and Sonja Buffa 1 City Square, Suite 400 Warren, Michigan 48093 586.574.4671 [email protected] John A. Dolan (P28060) Attorney for Clinton Twp and Kim Meltzer 22600 Hall Road, Suite 205 Clinton Township, Michigan 48036 586.263.5050 [email protected] ‘Thomas D. Landa (78201) Attomey for Chesterfield Twp, Cindy Berry and Michelle Nizza 2075 West Big Beaver Road, Suite 750 ‘Troy, Michigan 48084 248.502.4000 [email protected] 586.464.3541 mgrano@khvpf,com Robert 8. Huth, Jr. (P42531) Attorney for Shelby Twp, Stanley Grot, Lisa Suida, Harrison Twp, Adam Wit and Teri Salgto 19500 Hall Road, Suite 100 Clinton Township, Michigan 48038 586.412.4900 [email protected] Timothy S, Ferrand (P39583) Jennifer Lynn Bumett (P75365) Attorneys for City of St. Clair Shores, Amy. Anikewich, City of Eastpointe and Otis D. Gatson 19176 Hall Road, Suite 205 Clinton Township, Michigan 48038 586.228,5600 [email protected] Sharon DeWaele (P43712) Attomey for Richmond Township and Cathy Lafontaine 12900 Hall Road, Suite 350 Sterling Heights, Michigan 48313 586.726.1000 [email protected] AFFIDAVIT OF DIRECTOR OF ELECTIONS JONATHAN BRATER I, Jonathan Brater, state as follows: 1. Thave been employed by the Department of State as Director of Elections since January 2, 2020, and in such capacity serve as Director of the Bureau of Elections (Bureau). 2. I bring this declaration in support of Defendant Secretary of State Jocelyn Benson’s motion for summary disposition. 2 & 2 5 é Document received by the MI Mac:3. Tam personally knowledgeable of the programming and operation of electronic poll books (EPB) and the instructions to election officials for the operation of EPBs, as well as associated laws and retention schedules, ELECTRONIC POLL BOOK (EPB) PROCEDURES 4, The Department of State’s Bureau of Elections developed the computer software in the EPB as a tool for local clerks and election inspectors to assist in election day operations, MCL 168,668b. The EPB contains built-in security to protect the integrity of our elections and the privacy of voters, 5. The Bureau of Elections provided each precinct with a laptop computer, encrypted flash drive, a mouse, a magnetic card reader, and a case to administer the EPB program (hereafter also referred to as “software”). Clerks can also buy their own compatible laptop and download the EPB software onto that laptop; clerks can also buy their own compatible peripheral devices such as encrypted flash drives. (Attachment A, Electronic Pollbook Refresh Clerk’s Manual for Windows 10 & BitLocker Flash Drives, p 5.) 6. The Bureau of Elections’ laptop containing the BPB software and encrypted flash drive are essential components to protecting sensitive voter information. 7. Clerks are instructed to use the EPB software to download files from the Qualified Voter File (QVF) after 4 p.m, on the day before the election to ensure an accurate voter list is downloaded (with the exception of the City of Detroit, which may begin downloading on the Saturday before the election). MCL 168.6686, 8. ‘The EPB software takes the live voter registration data in the QVF and generates an offline voter list for election day that allows electi inspectors to easily look-up voters and assign ballot numbers, Document received by the MI Macomb 16th Circuit Court.9. To ensure security of the EPB software and voter information, clerks are directed to create an EPB login for each election inspector on election day. 10. The EPB is used on election day to process voters by assigning ballots, verifying voter information, and recording voter history (which helps prevent double voting). ‘The EPB contains a status “flag” for any voter that has an issue, such as an outstanding absentee ballot, that needs to be addressed before voting in-person, (Election Officials’ Manual, Chapter 11, p 1)! 11. The EPB software allows clection inspectors to make notations for spoiled ballots, surrendered absentee ballots, rejected ballots, challenged ballots, and provisional ballots to ensure accurate reports are generated after the polls close. (Managing Your Precinct on Election Day Election Inspectors’ Procedure Manual, p 38.) 12, Affler the polls elose on election day, the clerks are instructed to save data in the EB software to the flash drive and generate and print reports for the paper binder pollbook. 13. The EPB software generates the three reports necessary to print and complete the paper binder pollbook/official record for each precinct. These reports are the Ballot Summary, Voter List, and the Remarks report. (Election Officials’ Manual, Chapter 12, p 19.)* 14, The Ballot Summary report generates a breakdown of all ballots that were processed at that precinct. This includes tabulated, absentee, spoiled, defective, rejected, ' See Blection Officials’ Manual, Chapter 11: Election Day (michigan.gov) (accessed March 25, 25, 2024.) } See Election Officials’ Manual, Chapter 12: XIL_Precinet Canvass__Closing_the Polls.pdf (michigan.gov) (accessed March 25, 2024.) 4 Document received by the MI Macomb 16th Circuit Court.provisional ballots, and unused ballots at that precinct. ‘This report is saved to the encrypted flash drive. 15. The Remarks Summary report includes all remarks entered by election inspectors on election day. ‘This allows any unusual circumstances for which there is not another recording function in the EPB to be documented and saved to the encrypted flash drive. 16. The Voter List report identifies the voters at the precinet and the type of ballot that they were issued, This is downloaded and saved to the encrypted flash drive. Notably, the list of voters who appeared at the precinet can also be determined by reviewing the paper applications to vote completed by voters who vote at the precinct; these paper applications are also saved, (Attachment A, Electronic Pollbook Retiesh Clerk’s Manual for Windows 10 & BitLocker Flash Drives, p 38.) 17. Paper reports are printed either at the precinet or the receiving board. If the election inspectors at the precinct do not print the report at the precinct, the electronic copy of the report is sent to a designated receiving board that prints the files and creates the paper binder pollbook or official record, (Election Officials Manual, Chapter 12, p 19.) 18. Within seven days after election day, the clerk or designated QVF users must upload data from the encrypted flash drive into QVF. This uploads voter history for each voter on the EPB voter list into the voter’s QVF record, (Attachment A, Electronic Pollbook Refresh Clerk’s Manual for Windows 10 & BitLocker Flash Drives, p 46.) 19, Clerks or designated QVF users are instructed to, affer uploading data to QVE, delete the EPB software and associated files from all devices, including the laptop and encrypted 4 See Blection Officials’ Manual, Chapter 12: XII_Precinet_Canvass_ Closing the Polls.pdf (michigan gov) (accessed March 25, 2024.) Document received by the MI Macomb 16th Circuit Court.flash drive, by the seventh day following the final (state or county, as applicable) canvass unless there is a court order to preserve the documents; the Secretary of State requests the data be preserved; or there is a pending recount. Deleting the EPB software and data is only done after paper copies have been printed and the information has been uploaded to the QVF. Retention of these documents satisfies the requirements that election returns and records be preserved under MCL 168.811 and $2 US 20701. Only after these records are preserved are the software and data file copies deleted from the encrypted flash drives. (Attachment A, p 48.) 20. Deleting the EPB software and associated data is essential to ensure the security of voter information because the EPB data includes personal lentifying information for voters. Deleting the EPB is also essential in preventing outdated versions of the software or data files from being used accidentally in subsequent elections, which could lead to errors or out-of-date voter data appearing in the electronic pollbook. FREEDOM OF INFORMATION ACT REQUESTS: 21, On February 12, 2021, prior to the FOIA requests by the Plaintiff, the Bureau of Elections sent a communication to County Clerks reminding them that the EPB software provided by the Bureau of Blections contains sensitive voter information that should be deleted absent one of the exceptions noted in the EPB manual. (Attachment B, 2/12/21 memo.) This instruction was provided in a memorandum to clerks, a routine communication that had been sent after elections for many years, (Attachment A, Electronie Pollbook Refresh Clerk’s Manual for Windows 10 & BitLocker Flash Drives, p 3, 48.) 22. On November 14, 2022, Bureau or Elections staff emailed local clerks regarding, FOIA requests concerning the EPB. The email instructed clerks to consult with their local Document received by the MI Macomb 16th Circuit Court.attorney but indicated that “some” of the information being requested may be exempt from the FOIA requests. (Attachment C, 11/14/22 email.) 23, Beginning May 2023, Plaintiff began requesting documents under the Freedom of Information Act from local clerks for the November 2022 election and the May 2023 election. ‘The requests specifically included the extracted files from the EPB, which includes the EPB software used for the EPB program. The request was made for the files to be sent in either CSV or XLS formats. Similar requests were and had been occurring around the state, 24, On May 13, 2023, Plaintiff sent a similar FOIA request to the Department of State for the EPB history of all precincts in Macomb County for elections held in November 2022 and May 2023 25, ‘The EPB software and files that clerks download and use temporarily for each election do not cnable clerks to ensure that all information that should not be shared in a FOIA request can be removed before data or files are shared. Clerks can run reports in a CSV file, but the file will contain personal identifying information that must be carefully removed. The disclosure of personal identifying information for voters not only threatens the privacy of voters bbut also increases the likelihood this data could be misused to compromise the security of the electoral system. Further, even assuming clerks can remove all personal identifying information, the release would also include propriety software information, security feature information, and sensitive information, the release of which could jeopardize the security of Michigan’s electoral process. MCL, 15.243(1)(d), (y), (2), MCL 168.509gg. 26, Because of the complexity of these new types of FOIA requests, concerns over the security of the EPB software and personal identifying information of voters being disclosed, and, the limited ability of clerks to ensure this information is not disclosed while responding to FOIA Document received by the MI Macomb 16th Circuit Court.requests, the Bureau of Elections began instrueting local clerks to not release the information and to direct requestors to the Bureau of Elections. (Attachment D, July 2023 memo.) 27. ‘The Bureau of Elections has the capability to convert the CSV files from the EPB to .XLS files and not disclose the information that is exempt from FOIA. 28, On September 6, 2023, the Bureau of Elections sent the Plaintiff.a thumb drive containing .XLS files in response to his May 13th FOIA request. 29. The thumb drive sent to the Plaintiff included EPB history for all jurisdictions in Macomb County specific to the November 2022 election, including the jurisdictions at issue in the consolidated cases. 30. Additionally, the thumb drive included BPB history for only the jurisdictions in Macomb County that held May 2023 elections, including the Cities of Roseville, Centerline, Warren, and Sterling Heights, and for Richmond, Bruce, Macomb, Shelby, Washington, and Clinton Townships. 31. This declaration is based on personal knowledge. If called as a witness, [can testify competently to the facts stated in this declaration, GueeA\ Qe he Jonathan Brater, Director of Elections Michigan Department of State Subscribed and sworn to before me, a Notary Public, on March 25, 2024. Dave. Gearon PRINTED OR TYPED NAME OF NOTARY ‘ounty, Michigan Acting‘in Wa hae Couns Mi fichigan sigh expires: aE ES30 My comm Document received by the MI Macomb 16th Circuit Court.