Michigan Supreme Court upholds most of Benson’s changes for poll challengers guidance • Michigan Advance

Most of the guidance on election challengers provided by Michigan Secretary of State Jocelyn Benson is legal and can be used for the upcoming Nov. 5 presidential election.

That’s after a 4-3 ruling Wednesday from the Michigan Supreme Court, which decided along party lines that Benson was not required to use the full rules-making process to issue guidance on the credentialing of election challengers and the procedures by which challenges could be reported.  

Writing for the Democratic-nominated majority, Justice Kyra Harris Bolden noted Benson’s authority to set the guidelines.

“Under the Michigan Election Law, the secretary of state is the chief election officer of Michigan, and as such, the secretary has supervisory control over local election officials in the performance of their duties,” she wrote.

The decision brings to a close a legal battle that began in 2022 when a lawsuit was filed by two Republican legislative candidates and three Republicans who served as election challengers. They argued that new guidance issued by Benson violated Michigan election law by requiring polling places to have an election inspector designated as the “challenger liaison” through whom all challenges would be communicated. They further argued, among other issues, against a uniform credential form for challengers, and provisions permitting challengers to be ejected from polling sites if they fail to follow instructions. 

The plaintiffs, which also included the Michigan Republican Party and Republican National Committee, additionally argued that the rule changes had not gone through the Administrative Procedures Act (APA), which provides for “processing, promulgation, publication, and inspection of state agency rules.”

In October, the Michigan Court of Appeals had agreed, ruling that the Secretary of State “must follow the requirements of the Michigan Administrative Procedure Act and that under the state law a department can set new rules only after it has gone through the public notice and comment process.”

In its opinion, however, the majority overturned that decision, noting exceptions written into the law exempting from the rulemaking process “a form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.”

In a dissent, Republican-nominated Justice Brian Zahra said the majority opinion that the revisions to the guidelines were merely explanatory did not square with the fact that challenges by credentialed election challengers would be “subject to the arbitrary whim of the newly designated challenger liaison who is vested by the Secretary’s new rules with authority to deem a challenge “impermissible.” The Secretary’s revisions to the manual are, in fact, ‘rules’ that must be followed and followed without a trace of public discussion, accountability, or transparency.”

Benson, in a statement after the opinion was issued, said she was grateful the court had recognized her department’s legal responsibility to issue guidelines to clerks. 

“As Michigan’s chief elections officer, the authority provided by the Legislature to issue uniform guidance to more than 1,600 clerks throughout the state is necessary to ensure every eligible voter can cast their ballot, while maintaining the security of our elections and the safety of our polling places,” said Benson. 

“As our guidance has consistently made clear, challengers have a right to participate in the election process and they play an important role. But election officials have a responsibility to maintain order in the polling place and ensure voters can cast a ballot without interference. This clarity will help election officials, poll workers, challengers, and voters alike as we prepare for the November General Election and beyond. As always, we are committed to following the law as we administer accessible, secure, and transparent elections for Michigan citizens.”