The Michigan Supreme Court is considering taking up an appeal in a case over the state’s 2022 election guidance concerning poll challengers.
The rules require challengers to fill out a credential form, limit who they can talk to, and ban electronic devices from absentee ballot counting centers. The policy also stopped election inspectors from recording “impermissible challenges” and required challengers to submit their application for the position ahead of Election Day.
The policy, issued in May 2022, drew the ire of Republicans, who claimed it went against state election law. In two consolidated lawsuits, lower courts decided that guidance was invalid without going through the state’s official administrative rulemaking process.
Attorney Ann Howard represented the plaintiffs in the case against Michigan Secretary of State Jocelyn Benson and Elections Director Jonathan Brater.
Howard accuses Benson of using her guidance to get around the rulemaking system.
“She can’t use a manual to get what she wants, to get the election outcome that she wants when it conflicts with Michigan election law and this is a very, very second-grade problem,” Howard said.
But the state argues election law does give it the authority to issue those policies on its own.
In its appeal filed with the Michigan Supreme Court, the Michigan Department of State argued clauses of the state constitution that make the Secretary of State the “chief election officer” delegated her the power she needed to operate elections.
The appeal also cited a law requiring the secretary to come up with instructions for absentee voter counting boards.
“These sections provide the secretary with broad authority to issue instructions for the proper conduct of elections, the processing of challenges, to prescribe uniform forms for elections, the operation of AVCBs, and to require adherence to these instructions by the election officials over whom she exercises supervisory control,” the appeal said.
Now, the state Supreme Court is giving both sides 15 minutes on June 18 to persuade justices whether to take the case or allow the lower court rulings to stand.
“Recent rulings from the lower courts have agreed that Secretary Benson’s instructions violate the rights of election challengers in Michigan, who are essential for a transparent election. The (Republican National Committee) is confident that the Michigan Supreme Court will uphold these decisions and protect the rights of election challengers,” a statement from RNC Election Integrity Communications Director Claire Zunk read.
Despite the Michigan Court of Appeals ruling largely against the state in the lead-up to the 2022 election, the guidance was allowed to remain in place. That’s because the Michigan Supreme Court granted a stay of the decision pending an appeal from the state.
Ingham County Clerk Barb Byrum’s office filed a legal brief with the court in favor of keeping the challenger guidance.
Byrum said poll workers needed that clear guidance to prepare for an election.
“We are planning for the election months before the election is actually occurring. We are training those precinct workers that have to enforce the rules for those poll challengers and poll watchers, they are getting trained weeks or months before the election,” Byrum said.
A decision to uphold the lower court’s ruling could spell trouble for challenger guidance, however. A latest version of the manual, released in March, maintains many of the challenged provisions.
