Michigan Supreme Court Reinstates Jocelyn Benson’s Election Guidance Manual

Michigan Secretary of State Jocelyn Benson speaks in Detroit on Aug. 18, 2020. (Rebecca Cook/Reuters)

The Michigan Supreme Court on Thursday allowed local election clerks to use new poll challenger guidelines issued by Secretary of State Jocelyn Benson in the form of a manual, which a judge had previously found to violate the law.

The high court’s ruling temporarily stops an Oct. 20 ruling by a Michigan Court of Claims judge that found Benson, a Democrat, had “exceeded [her] authority” in certain parts of a new election manual published in May.

That Michigan judge’s now-paused order had blocked Benson’s new manual, which required increased credentialing for poll challengers and banned personal electronic devices in absentee counting boards.

The case, which made its way to Michigan’s highest court, will now be determined in a final ruling that will come after the midterm elections, while it waits to go through an appeals process.

Michigan Supreme Court Justice Richard Bernstein, a Democratic appointee, found there were “clearly significant legal issues at play,” but it wouldn’t be feasible to review the case “in the time left before Election Day.”

The ruling is a loss for the plaintiffs who on Wednesday asked the Michigan Court of Claims to declare Benson in contempt of court for noncompliance with an Oct. 20 court order.

Benson was previously accused of noncompliance with a court order in another case when she failed to convince a judge to dismiss a case that could force her to remove over 25,000 deceased people from Michigan’s voter rolls.

Poll workers board up windows of the ballot counting area at the TCF Center in Detroit on Nov. 4, 2020. (Seth Herald/AFP via Getty Images)

The five plaintiffs in the case, a group of citizens concerned about protecting the rights of challengers and poll watchers from infringement by Benson’s nonconforming or extra-legal guidelines, are known collectively as O’Halloran et al.

The Michigan Republican Party and the Republican National Committee joined the lawsuit as plaintiffs.

Benson’s legal defense team includes the Elias Law Group, founded by nationally known Democrat strategist Marc Elias, which was also involved in a lawsuit challenging ballot drop box watchers in Arizona.

Benson celebrated the Michigan Supreme Court ruling, saying she’s grateful her updated challenger guidelines and protocols, which were used in the August primaries, “remain in effect for next week’s general election.”

“We’ve long been confident in the legality of the Michigan Bureau of Elections’ guidelines surrounding election challengers and their rightful balance providing transparency while protecting voters and poll workers from disruptions and intimidation,” Benson said in a statement.

Lawsuit

Michigan Court of Claims Judge Brock Swartzle’s Oct. 20 ruling found that some provisions in Benson’s manual had not gone through the proper rule-making procedure with input from the public and state lawmakers.

The court found that the guidance Benson issued, therefore, didn’t have the force and effect of law.

Benson’s new manual outlines the rights and duties of election challengers and poll watchers.

She created it in response to confrontations between election officials and poll challengers and watchers during the 2020 presidential election.

The new guidance outlines that challengers can’t take personal electronic devices into counting rooms where absentee ballots are processed prior to polls closing. Challengers will also have to communicate with a “challenger liaison” instead of election officials.

The Republican plaintiffs asked Swartzle to cancel Benson’s updated election manual, arguing it should have been issued as a promulgated rule as per the law instead of as an instructive guide.

They argued that the manual violates Section 733 of the Michigan Election Law, and they asserted that the manual was distributed to election clerks unlawfully.