Michigan Court of Appeals Orders Changes to Partisan Election Challenger Rules

WASHINGTON, D.C. — Last Thursday, a three-judge panel of the Michigan Court of Appeals affirmed a lower court decision requiring Michigan’s top election officials to alter a set of 2022 rules regulating the behavior of partisan election challengers. 

In Michigan, election challengers are appointed by political parties to monitor for wrongdoing in the area of voter eligibility and other limited circumstances related to the election process. 

Last week’s unanimous decision originates from a consolidated lawsuit brought on behalf of the Republican National Committee, Michigan Republican Party and other GOP plaintiffs ahead of the 2022 midterm elections. One of the plaintiffs, Braden Giacobazzi, who served as an election challenger in Michigan’s 2022 primary election, was removed from an absentee ballot counting center in Detroit for allegedly harassing election officials. 

The Republican plaintiffs alleged that many of the guidelines and rule changes contained in the 2022 election challenger manual — which regulate the appointment, rights and duties of election challengers — violate Michigan law.

In an October 2022 ruling, a Michigan judge partially sided with the Republicans plaintiffs and granted their request to invalidate certain rules promulgated by the Michigan secretary of state and director of elections in the 2022 guidance. According to the judge, Michigan election officials “exceeded their authority with respect to certain provisions in [the] election manual.”

Following the decision requiring the state to update its 2022 guidance, the Michigan Supreme Court issued an emergency order temporarily pausing the decision at the request of the Michigan secretary of state and elections director. As a result, the 2022 election challengers guidance remained in effect for the 2022 midterm elections. 

Thursday’s order affirms the lower court’s October 2022 ruling striking down the following election challenger regulations for violating Michigan law: 

  • A requirement that prospective challengers fill out a specific credentialing form — which is published by the secretary of state — in order to be eligible to serve,  
  • A rule that prevents election inspectors, Michigan’s term for poll workers, from recording “impermissible challenges” that are based on something other than a voter’s eligibility or an election process,
  • A restriction that only permits election challengers to communicate with specific election inspectors who are designated as “challenger liaisons” and
  • A prohibition on the possession of electronic devices in absentee ballot counting centers.

In addition to striking down these four rules, the three-judge panel noted that while state election officials “have broad authority to issue binding non-rule instructions on election workers” who are employed by the state, they may not issue these types of binding regulations “on challengers or other outside observers.” According to the decision, the election challengers manual should have been published “as a formal administrative rule” under what is known as the Administrative Procedures Act.

As a result of the three-judge panel’s ruling, Michigan election officials will now be required to either rescind the 2022 guidance in its entirety, revise the guidance to comply with the trial court’s order or amend an earlier iteration of the guidance to comply with the trial court’s order. According to reporting from MLive, the Michigan Department of State plans to appeal the panel’s ruling. 

Read the opinion here.

Learn more about the case here.