Michigan’s poll challenge rules upheld by court in blow to Republicans

• Michigan Supreme Court keeps poll challenger rules for Nov. 8
• Republicans had sued, arguing new guidance restricted rights
• Secretary of State Jocelyn Benson says the rules prevent “disruptions and intimidation’

LANSING – Michigan clerks can prohibit poll challengers from bringing cell phones into absentee ballot counting rooms and limit their ability to talk directly to election workers next week, the state Supreme Court ruled Thursday.

Days before the Nov. 8 election, justices suspended a lower court decision that had invalidated guidance from Democratic Secretary of State Jocelyn Benson. Republicans sued over the guidance, arguing it restricts their right to challenge vote tallies.

The ruling is a win for Benson, who contends the guidance strikes a "rightful balance providing transparency while protecting voters and poll workers from disruptions and intimidation."

Related:

• Michigan secretary of state race: Where Benson, Karamo stand on issues
• As Michigan election nears, some apprehension over strife at polls
• Michigan absentee ballots: What happens after vote, why they may delay results

The high court, where Democratic-nominees hold four of seven seats, did not weigh in on the merits of the case. 

Instead, and over the objections of two Republican-nominees, the majority ruled that changing the poll challenger guidance so close to the election could confuse clerks and leave the state no time to recommend alternative procedures. 

“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,” Justice Richard Bernstein, a Democratic nominee, wrote in a concurring opinion. 

“To say this would not be disruptive is to ignore reality and basic human behavior.”

Ann Howard, a Southfield attorney representing GOP challengers, said the ruling will "effectively neuter” their rights on Nov. 8. 

"We're going to be heading into an election with poll challengers' rights being severed," said Howard, who is under investigation by a special prosecutor for her alleged role in a vote tabulator tampering scheme following the 2020 presidential election. 

She noted her clients anticipate the case will be resolved before the 2024 presidential election.

The ruling is the second blow to Republicans in as many days, after a Genesee County judge dismissed a suit claiming the city of Flint hadn’t employed enough GOP election workers. 

And Benson's re-election challenger, Kristina Karamo, is the lead plaintiff in a separate lawsuit seeking to bar mail-in and drop box absentee ballot voting in Detroit. Wayne County Chief Circuit Judge Timothy Kenny heard testimony on the case Thursday.

Benson suggested a flurry of recent GOP lawsuits over election procedures is a "scare tactic" to deter voters.

"We certainly know there are strategies in place to try to depress turnout in urban areas, not just here in Michigan but in other parts of the country," she said. 

The high court’s ruling on Thursday came after Court of Claims Judge Brock Swartzle, a Republican appointee, invalidated provisions of Benson’s poll challenger guidance.

Swartzle ruled Benson should have used a traditional rule-making process before telling clerks that poll challengers could only talk to election worker “liaisons,” could not be credential by political parties or non-profit groups on Election Day itself and could not bring cell phones into absentee counting boards. 

Michigan law prohibits poll challengers from communicating information related to vote tallying until polls close on Election Day, but the statute does not specify whether those poll challengers should be able to use their cellphones for other purposes. 

Suspending the lower court ruling will “ensure that local election workers can rely on the 2022 manual in the November 2022 general election while the courts work through the complex and jurisprudentially significant legal issues presented in these cases,” Supreme Court Justice Elizabeth Welch wrote in a concurring opinion.

Welch questioned the timing of twin lawsuits filed by GOP poll challengers on Sept. 28, and then by the Michigan Republican Party and the Republican National Committee on Sept. 30. 

She noted that Benson issued the poll challenger guidance on May 25, and it had been “relied on” by local clerks, election workers, poll watchers, and challengers for the Aug 4 primary without complaint.

Justices David Viviano and Brian Zahra, two of three GOP nominees on the court, criticized the ruling. Viviano wrote that the timing issue was a “convenient way to sidestep the merits of this appeal.”

“This is not the first time that the Secretary of State has claimed to merely be issuing ‘instructions’ to justify the lack of open and transparent promulgation of rules,” Zahra said.

That is a reference to Benson’s 2020 guidance that clerks presume signatures on absentee ballots are accurate. The guidance was struck down in court.