Michigan Election Challengers Guidance (O’Halloran)

Lawsuit filed by two Republican legislative candidates and three Republicans who served as election challengers in the 2022 Michigan primary election against Michigan Secretary of State Jocelyn Benson (D) and the Michigan director of elections challenging a set of 2022 rules pertaining to partisan elections challengers. The plaintiffs argue that this new guidance is in direct violation of Michigan election law, under which political parties are permitted to appoint election challengers to monitor and observe the election process. Specifically, the plaintiffs challenge new rules that include: a requirement that “every polling place or Absent Voter Counting Board (AVCB)…have an election inspector designated as the challenger liaison;” a restriction that only permits election challengers to communicate with “challenger liaisons;” a prohibition on the “possession of certain electronic devices in AVCBs;” a regulation that authorizes “election inspectors to not record…‘impermissible challenges;’” a rule that allows challengers to be “ejected” from polling sites for failing to follow instructions and more. They allege that “[d]efendant Benson is further intimidating election challengers into acquiescing their rights and responsibilities through public statements depicting them as violent extremists” and impeding the “statutory rights and duties” granted to poll challengers. The plaintiffs ask the court to invalidate the challenged rules for violating Michigan law and to prohibit the defendants from enforcing them. Additionally, the Republican plaintiffs ask the court to order the defendants to issue an “updated” guidance that complies with Michigan law. The case was consolidated with DeVisser v. Benson.

On Oct. 20, a judge struck down many of the newly implemented regulations contained in the 2022 election challengers and poll watchers instructions for violating Michigan law. The judge ordered the defendants to issue an updated version of the instructions without the regulations deemed illegal in the court’s opinion. The state defendants subsequently appealed this decision to the Michigan Court of Appeals, but the appellate court did not resolve the defendants’ emergency motions by the resolution date requested by the defendants. As a result, on Oct. 28, the defendants filed an emergency application to have their appeal heard before the Michigan Supreme Court.

On Nov. 3, the Michigan Supreme Court paused the lower court’s decision pending appeal, meaning the 2022 rules regulating election challengers are back in place for the upcoming midterm elections. Litigation is ongoing in the Michigan Court of Appeals.

On Oct. 19, 2023, the Michigan Court of Appeals affirmed the trial court’s Oct. 20 decision striking down certain regulations contained in the 2022 election challengers and poll watchers instructions. The court of appeals held that the defendants can: “(1) rescind the May 2022 Manual in its entirety; (2) revise the May 2022 Manual to comply with this Opinion and Order; or (3) revise an earlier iteration of the manual to comply with this Opinion and Order.” In November, Benson appealed this ruling to the Michigan Supreme Court.

STATUS: Litigation is ongoing in the Michigan Supreme Court.

Last updated: December 11, 2023 12:24 pm EST