The Michigan Supreme Court on Thursday suspended a Michigan Court of Claims order — celebrated by Republicans — that required revisions to the instructions for election observers that monitor polling locations and absentee ballot counting rooms. The Michigan Supreme Court’s order leaves in place for the general election the same poll challenger guidelines used in the recent August primary.
Secretary of State Jocelyn Benson and election officials raised concerns that the last-minute revisions ordered by the lower court would cause confusion and chaos at the polls and counting rooms. Former Michigan elections director Chris Thomas worried it would potentially pave the way for intimidation against election workers.
Republicans had heralded the earlier lower court order as a legal victory in response to a pair of lawsuits challenging the legality of the poll challenger manual: one from the Michigan GOP and Republican National Committee and another from GOP candidates and challengers representing organizations that deny the legitimacy of the 2020 election.
In a statement concurring with the Michigan Supreme Court’s decision to suspend the lower court order, Justice Elizabeth Welch — a Democratic-nominated justice — chided those who brought the lawsuits for waiting until late September to file them. “The general election is now less than one week away. Training for poll workers has been completed. It would be impossible to retrain thousands of workers across our state within a matter of days,” she wrote.
Justice Richard Bernstein − a Democratic-nominated justice who is on the ballot this fall − wrote in his concurring statement that “there are clearly significant legal issues at play here that merit this Court’s full attention, which is unfortunately not feasible in the time left before election day.” In explaining his support for leaving in place for the general election the same guidelines used for the August primary, he wrote that allowing changes to the poll challenger manual would prove disruptive.
Justice Brain Zahra in a dissenting statement cast doubt on claims by election officials that the lower court’s last-minute changes to the poll challenger manual would create logistical hurdles and require retraining thousands of election workers. Zahra was nominated by the Michigan GOP and is up for reelection this fall. Republican-nominated Justice David Viviano argued in his dissenting statement that Benson and Michigan elections director Jonathan Brater didn’t meet a legal standard to grant their request to suspend the lower court order.
“We live in a political age where one side claims our ‘democracy is at stake’ because the other is questioning the integrity of our elections — an age-old and seemingly bipartisan tradition,” Viviano wrote. “Therefore, the stakes of this case — which will affect how this year’s election is administered —could not be higher. But you would not know it from the majority’s treatment of the case.”
Poll challengers have the authority to contest a voter’s eligibility to vote and election procedures they observe. Poll watchers, meanwhile, can observe but not challenge election processes. The lawsuits against Benson and Brater argued that the manual for challengers and watchers violated Michigan election law and included rules that needed to undergo a vetting process by the public and state lawmakers.
Benson and Brater filed an appeal with the Michigan Court of Appeals a day after the Court of Claims ordered revisions to the manual. When the appeals court did not weigh in on the matter by the deadline requested by Benson and Brater, the pair asked the Michigan Supreme Court to stay the lower court order pending appeal.
Michigan Court of Claims Judge Brock Swartzle — a former Michigan GOP nominee for Michigan Supreme Court — presided over the GOP lawsuits seeking changes to the poll challenger manual. In addition to allowing challengers to bring electronic devices such as smartphones and laptops inside counting rooms that process absentee ballots, Swartzle ruled that challengers had the right to communicate with any election worker and have all their challenges — including those deemed baseless — recorded in the poll book.
Benson and Brater blasted Swartzle’s order, saying in a legal filing that it “demonstrated indifference to the importance of a fair and orderly Election Day for voters, challengers, and election officials across the state.” They warned in a legal filing that challengers who bring their phones inside counting rooms “pose a threat to the security of the information present at (absent voter counting boards), most significantly in what direction absentee ballots may be trending.”
Benson applauded the Michigan Supreme Court’s order leaving in place the current poll challenger guidelines.
“In a moment when we often see lawsuits filed not to enforce the law but instead to cause confusion and further partisan strategies, I am grateful to the Michigan Supreme Court for providing clarity to all voters and election officials that the challenger guidelines and protocols used in previous elections will remain in effect for next week’s general election,” Benson said in a statement.
Michigan GOP spokesperson Gustavo Portela blasted the Michigan Supreme Court’s order. “It is unfortunate that Benson, with Dana Nessel enabling her, is refusing to follow Michigan law and the Democrat majority at the Michigan Supreme Court has now used a procedural issue to allow Benson’s illegal Rules to proceed through this election,” he said in a statement. “The Michigan GOP strongly disagrees and will continue to fight for a transparent and honest election process.”
The Secretary of State’s Office modified its guidance manual for poll challengers and watchers following disputes surrounding the 2020 election when challengers in Detroit aligned with former President Donald Trump descended on the counting room and demanded election workers stop counting ballots.
Those eligible can register to vote and cast a ballot until 8 p.m. on Election Day, which is Tuesday. Voters can still request an absentee ballot or vote in person at their polling locations, which open at 7 a.m. and close at 8 p.m.
Clara Hendrickson fact-checks Michigan issues and politics as a corps member with Report for America, an initiative of The GroundTruth Project. Make a tax-deductible contribution to support her work at bit.ly/freepRFA. Contact her at [email protected] or 313-296-5743. Follow her on Twitter @clarajanehen.