The Michigan Supreme Court will allow local clerks to continue using poll challenger guidance in next week’s election that was issued by Secretary of State Jocelyn Benson’s office in May, halting a lower court decision that blocked the rules.
Several election challengers, two legislative candidates, and state and national Republican parties challenged the rules in lawsuits, particularly rules that banned personal electronic devices, such as cell phones, among individuals working in absentee voter counting board rooms while polls are open.
The Supreme Court’s suspension of a Court of Claims ruling tossing out some of the rules will remain effective throughout the appeal periods, likely keeping the guidance in place through Tuesday’s election.
Democratic-nominated Justice Richard Bernstein said there were “clearly significant legal issues at play,” but said the review needed of the case is “unfortunately not feasible in the time left before Election Day.” Bernstein argued clerks would have to undo training they’d already conducted under the May 2022 rules.
“It is impractical to think that new training could both be developed and take place the week before the election without a significant use of state resources, even if we assume this is a logistically achievable task within the time frame before us,” Bernstein said in a concurring opinion.
Benson on Thursday said the decision would give election workers clarity ahead of next week’s election.
“We’ve long been confident in the legality of the Michigan Bureau of Elections’ guidelines surrounding election challengers and their rightful balance providing transparency while protecting voters and poll workers from disruptions and intimidation,” Benson said in a statement.
The Michigan Republican Party said the ruling renders the vote-counting process “less transparent.”
“The Michigan GOP strongly disagrees and will continue to fight for a transparent and honest election process,” the party’s spokesman, Gustavo Portela, said in a statement. “It should be easy to vote and hard to cheat.”
Michigan Court of Claims Judge Brock Swartzle last month blocked several of the rules issued by Benson’s office through a May 2022 election manual because they didn’t go through the regular rulemaking process.
Swartzle ordered Benson to either rescind the manual in its entirety or amend specific sections he said didn’t comply with Michigan election law and the Administrative Procedures Act.
Other rules for election challengers that were challenged in court included the creation of new, uniform credential forms for challengers and rules that made it unclear whether political parties could appoint challengers on Election Day.
The cell phone rule specifically bars poll challengers, poll watchers, poll inspectors and election workers from having electronic devices able to send or receive information in absentee voting counting boards while polls are open between 7 a.m. and 8 p.m. The electronic devices that fall under the prohibition include laptops, tablets, smartwatches and phones.
The rule goes a bit further than state law, which already prohibits the use of electronic devices in absentee voting counting boards if they’re used to communicate election information out of the location before polls close.
Swartzle’s ruling was appealed to the Court of Appeals and the defendants asked the high court for a stay on Swartzle’s order while the appeal worked its way through the courts.
Republican-nominated Justice David Viviano criticized the Supreme Court’s Thursday order, arguing in a dissent that it amounted to a “convenient way to sidestep the merits of this appeal while still granting defendants the relief they seek.”
“The election will likely come and go with the secretary of state’s challenged manual firmly in place, even though the only court to rule on the merits found it contained new provisions that exceeded the secretary of state’s authority,” Viviano wrote.
Republican-nominated Justice Brian Zahra also wrote a dissent, agreeing with Swartzle’s analysis that concluded elements of the manual conflicted with the state Administrative Procedures Act, which requires new rules to go through a prolonged rulemaking process. He referenced other signature verification guidance Benson issued before the 2020 election was also found to have sidestepped the APA and was ruled invalid, but only after the election, in March 2021.
“… the majority’s decision to grant a stay will only enable defendants to continue this practice,” Zahra wrote.