UPDATE: On Thursday, Nov. 3, the Michigan Supreme Court ruled 5-2 to pause the lower court’s decision that blocked Michigan Secretary of State Jocelyn Benson’s (D) 2022 rules regulating the behavior of partisan election challengers and poll watchers pending appeal. This decision is a victory for voters and means that the rules are back in effect for the upcoming midterm elections.
WASHINGTON, D.C. — On Thursday, Oct. 20, a Michigan judge granted in part and denied in part a Republican request to nullify a set of 2022 rules pertaining to partisan elections challengers and poll watchers who are appointed by political parties to monitor and observe the election process. This decision stems from a consolidated lawsuit — brought by the Republican National Committee, the Michigan Republican Party, two Republican legislative candidates, a voter and a group of Republican election challengers who served in the 2022 Michigan primary elections — against Michigan Secretary of State Jocelyn Benson (D) and the Michigan director of elections. The Republican plaintiffs alleged that the many of the new guidelines and numerous rule changes contained in the 2022 election challenger instructions — which regulate the appointment, rights and duties of election challengers — violate Michigan law. Specifically, the plaintiffs sought to invalidate certain newly imposed rules including: 1) a requirement that the written authority to serve as a challenger now “must be on a form promulgated by the Secretary of State;” 2) a stipulation that political parties may only appoint challengers before Election Day, but not on Election Day; 3) a restriction that only permits election challengers to communicate with “challenger liaisons;” 4) a prohibition on the “possession of certain electronic devices in Absent Voter Counting Boards” (ACVBs) and 5) a regulation that authorizes election inspectors to not record “impermissible challenges.” Although the challenged rules were in place for the August 2022 primary, the Republican plaintiffs claimed that “the new instructions were silently posted to the Secretary’s website shortly before the August 2022 primary election” and that the defendants failed to properly notify both the public and election officials about the rule changes.
In the opinion issued today, the judge concluded that the defendants “exceeded their authority with respect to certain provisions in [the] election manual.” Notably, however, the judge rejected the plaintiffs’ more broad, sweeping request to render the entirety of the challenged instructions invalid. Specifically, the judge held that because the 2022 election challenger instructions are non-binding instructions, as opposed to binding laws, “there is no basis in law for this Court to prohibit defendants from issuing merely instructional guidance.” Accordingly, the judge declined “to declare the entirety of the May 2022 Manual unlawful or enjoin any use of an instructional manual for training purposes.” On the other hand, with regards to the plaintiffs’ more specific claims challenging certain rules contained within the 2022 instructions, the judge agreed with the plaintiffs, stating “[t]o the extent that defendants have issued an unpromulgated, [binding] rule in the guise of a [non-binding] instruction,” they have exceeded their lawful authority under the Michigan Election Law.” In turn, the judge declared that many of the aforementioned challenged instructions — namely, the secretary of state-promulgated nomination form, restrictions on challenger communications, ban on electronic devices in AVCBs and authorization permitting the exclusion of “impermissible challenges” — violate Michigan law. The judge further directed the defendants to clarify in an updated version of the manual that election challengers may be appointed on Election Day (not just up until Election Day as the manual currently states) and to remove all of the rules that contravene state law. Lastly, the judge rejected the defendants’ laches argument — in which the defendants alleged that the plaintiffs’ unfairly delayed bringing their claims until the last minute — noting that “[t]his Court’s several findings are relatively narrow in scope, and there is nothing in the record to suggest that revising the May 2022 Manual to conform with this Court’s Opinion and Order would be time consuming or otherwise onerous…[I]n today’s world, the manual could be widely disseminated in a matter of minutes.” Ultimately, the judge ordered the defendants to issue an updated version of the 2022 instructions that are consistent with Michigan law and the findings of the court.