Michigan Secretary of State Jocelyn Benson’s guidance burdening poll challengers violates state law, a state appeals court ruled on Thursday.
In a 3-0 decision, the Michigan Court of Appeals determined that guidance issued by Benson, a Democrat, ahead of last year’s Aug. 2 primary elections violated provisions of the state’s Administrative Procedures Act, which outlines rulemaking authority for state agencies. More specifically, the court reaffirmed an October 2022 trial court ruling that Benson’s guidelines “reach beyond defendants’ general supervisory scope” and ordered that they be revised or rescinded.
Plaintiffs in the case include several election challengers from the 2022 midterms, the Michigan Republican Party, two candidates for the state legislature, and the Republican National Committee.
As Victoria Marshall previously explained in these pages, Benson’s updated guidance included regulations mandating individuals fill out a newly devised form in order to become poll challengers, as well as the creation of “an artificial deadline for when poll challengers may be appointed.” The new guidance also included restrictions on “who poll challengers can communicate with” and a prohibition on using “electronic devices in absentee ballot counting areas.”
“Defendants have broad authority to issue binding non-rule instructions on election workers, but not on challengers or other outside observers,” the court ruled. “Instructions directed at [election challengers] thus go beyond defendants’ immediate scope of inherent supervisory authority and instead function as regulations of general applicability, which for that reason must be issued as properly promulgated APA rules.”
After the trial court’s October 2022 decision mandated the guidelines be rescinded or revised, the case was in limbo on appeal to the Michigan Court of Appeals. Benson asked Michigan’s Democrat-controlled Supreme Court to allow the guidance to remain in place for the Nov. 8 midterms. The Michigan Supreme Court effectively permitted unlawful guidance to be used for the 2022 midterms, over the objections of dissenting justices who agreed with the trial court’s analysis and assessed that “defendants have little chance of success on the merits of their statutory arguments.”
Thursday’s ruling isn’t the first case in which Benson has been found to have violated Michigan law. In March 2021, a Detroit-based judge ruled that Benson broke state law during the 2020 election when she sidestepped the state legislature and the administrative rulemaking process with “unilateral orders on absentee voting.” Much like her poll challenger guidance, Benson’s absentee voting orders were found to be outside the scope of what was permissible under Michigan’s Administrative Procedures Act.