Michigan Supreme Court Largely Greenlights Secretary of State’s Rules for Partisan Election Challengers
In a 4-3 ruling, the Michigan Supreme Court’s Democratic-appointed justices allowed Secretary of State Jocelyn Benson (D) to largely reinstate a set of 2022 rules governing the behavior of partisan election challengers that lower courts previously struck down.
In Michigan, election challengers are typically appointed by political parties to monitor polling places and ballot counting centers and may dispute an individual’s right to vote if they have “good reason to believe” a person is ineligible.
As Wednesday’s opinion noted, state law “provides the Secretary of State with a degree of discretion in choosing what process to use to fulfill her… duties,” including the authority to create rules that regulate the conduct of election officials and polling place monitors.
Ahead of the 2022 midterm elections, the Republican National Committee, Michigan Republican Party and other GOP voters alleged in a consolidated lawsuit that many of the state’s regulations on the appointment, rights and duties of election challengers violate Michigan law.
Proponents of the rules, which were promulgated in May 2022, say they prevent many of the issues that beset Michigan’s 2020 election, including impermissible voter challenges, disruption and the intimidation of voters and election officials.
A Michigan trial court judge partially sided with the Republican plaintiffs and invalidated certain rules contained in the state’s guidance, but the Michigan Supreme Court temporarily halted the decision at the request of the Michigan secretary of state and elections director on the eve of the general election. As a result, the 2022 election challengers guidance remained in effect for the 2022 midterm elections.
But in a subsequent October 2023 ruling — which the state Supreme Court reversed in part today — the Michigan Court of Appeals agreed with the trial court’s conclusion that certain election challengers rules contravene state law.
The election challengers rules largely reinstated by today’s state Supreme opinion include:
- A requirement that prospective challengers fill out a specific, uniform credentialing form — which is published by the secretary of state — in order to be eligible to serve;
- A rule that says election inspectors, Michigan’s term for poll workers, need not document voter eligibility challenges unless the challenger articulates a permissible factual basis for the challenge; and
- A restriction that only permits election challengers to communicate with specific election inspectors who are designated as “challenger liaisons” (or their designees) at polling places.
As for the rule giving election inspectors discretion to only record “permissible” challenges, Wednesday’s majority opinion held that “while election inspectors have implicit authority to determine whether a challenge is one under [state law] such that they are required to record it, they cannot decline to record a challenge on the basis of their personal assessment of the validity or merit of the challenge.”
The opinion added that the provision governing permissible versus impermissible challenges “goes beyond instructing election inspectors to ensure that a challenge is the kind that must be recorded and instead requires them to assess the validity of a challenge as a precondition to recording it, which conflicts with the Michigan Election Law.”
Finally, the court held that Republicans’ claim challenging a prohibition on the possession of electronic devices in absentee ballot counting centers is moot since the Michigan Legislature amended state law to explicitly permit the possession and limited use of certain devices.
The Michigan Democratic Party, which submitted an amicus brief in support of Benson’s rules, said they “provide greater clarity” and “unified direction in the wake of unnecessary chaos, anxiety, and tension caused by certain challengers during the November 2020 election.”
One of the plaintiffs in the Republican suit, Braden Giacobazzi, served as an election challenger in Michigan’s 2022 primary election, but was removed from an absentee ballot counting center in Detroit for allegedly harassing election officials.
Giacobazzi and some of his co-plaintiffs were previously represented by Ann Howard — an election denier who is the subject of a probe by the Michigan attorney general into individuals who allegedly conspired to unlawfully obtain access to voting machines used in the 2020 election
Following today’s ruling, state election officials must slightly revise the rules in accordance with the court’s holdings. In a statement, Benson said she is “grateful to the Michigan Supreme Court for recognizing” the Michigan Department of State’s “legal responsibility to issue guidelines to clerks.”
“As our guidance has consistently made clear, challengers have a right to participate in the election process and they play an important role. But election officials have a responsibility to maintain order in the polling place and ensure voters can cast a ballot without interference. This clarity will help election officials, poll workers, challengers, and voters alike as we prepare for the November General Election and beyond,” Benson added.