by Scott McClallen
The Michigan Court of Claims ruled Secretary of State Jocelyn Benson’s office must either rescind or revise a May 2022 Manual for election poll challengers.
The 15-page ruling analyzed four restrictions on poll challengers, including the credential form requirement, the requirement that communication only is with the “Challenger Liaison”, the prohibition on recording “impermissible challenges,” and the prohibition on electronic devices in the Absent Voter Counting Board.
The court found the rules should have been promulgated through the Administrative Procedures Act.
“As the trial court, the Court of Claims observed at the opening of its opinion, ‘[a]n executive branch department cannot do by instructional guidance what it must do by promulgated rule,” the ruling says. “This straightforward legal maxim does most of the work in resolving these two consolidated cases.’
The court said Benson couldn’t add poll challenger requirements in addition to Legislature-set criteria. Also, the court said the rules banning recording “impermissible challenges” shouldn’t stand.
“Even if the challenge is determined to be without basis in law or fact, if the challenge is made, it must be recorded,” the court said.
The manual says in bold type: “Repeated impermissible challenges may result in a challenger’s removal from the polling place or absent voter ballot processing facility.”
However, Michigan election statute didn’t distinguish between a “permissible” or “impermissible” election challenge, the court said.
The court said MDOS has broad authority to issue instructions for election workers but not for challengers or outside observers.
“Defendants have broad authority to issue binding non-rule instructions on election workers, but not on challengers or other outside observers,” the court wrote. “Election workers, including inspectors, conduct operations that come under the authority of the Secretary of State, and thus while doing so are effectively the Secretary’s subordinates.”
The court ordered the defendants to either “rescind the May 2022 Manual in its entirety, … revise the May 2022 Manual to comply with this Opinion and Order… or revise an earlier iteration of the manual to comply with this Opinion and Order.”
MDOS Deputy Chief of Communications Angela Benander said they will appeal the ruling.
In 2021, a Michigan Court of Claims judge struck down Benson’s directive that local election clerks presume absentee ballot signatures are valid.
Benson had directed city clerks to operate under the presumption signatures were valid when matching absentee ballot signatures with the voter signature on file to ensure they were the same person.
“The presumption is found nowhere in state law,” Judge Christopher M. Murray wrote. “The mandatory presumption goes beyond the realm of mere advice and direction, and instead is a substantive directive that adds to the pertinent signature-matching standards.”
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Scott McClallen is a staff writer covering Michigan and Minnesota for The Center Square. A graduate of Hillsdale College, his work has appeared on Forbes.com and FEE.org. Previously, he worked as a financial analyst at Pepsi. In 2021, he published a book on technology and privacy. He co-hosts the weekly Michigan in Focus podcast.
Photo “Election Poll Worker” by Keith Jenkins. CC BY-NC-ND 2.0.
