High Court allows poll challenger rules to remain in place for election
The Michigan Supreme Court will allow local officials to continue using poll challenger guidelines in next week’s elections issued by Secretary of State Jocelyn Benson’s office in May, halting a lower court ruling that blocked the rules.
Several election candidates, two legislative candidates, and the state and national Republican parties have challenged the rules in lawsuits, specifically the rules that prohibit personal electronic devices, such as cell phones, among individuals working in absentee voter counting board rooms while the polls are in session. open.
The Supreme Court’s suspension of some of the rules will remain in place during appeal periods, likely keeping the guidelines in place until Tuesday’s election.
Democratic nominee Judge Richard Bernstein said there were “obviously significant legal issues” but said the review needed in the case was “unfortunately not feasible in the time remaining before Election Day.” Bernstein argued that officers would have to cancel the training they were already conducting under the May 2022 rules.
“It is impractical to think that new training could be developed and conducted the week before an election without a significant use of government resources, even assuming it is a logistically feasible task in the time frame before us,” Bernstein said in a concurring opinion.
Benson said Thursday that the ruling will give election workers clarity ahead of next week’s election.
“We have long believed in the legality of the Michigan Elections Bureau’s challenger guidelines and strike the right balance to provide transparency while protecting voters and poll workers from disruption and intimidation,” Benson said in a statement.
The Michigan Republican Party said the decision makes the vote-counting process “less transparent.”
“The Michigan GOP strongly disagrees and will continue to fight for a transparent and fair election process,” party spokesman Gustavo Portela said in a statement. “It should be easy to vote and hard to cheat.”
Michigan District Court Judge Brock Swartzle last month blocked several rules issued by Benson’s office through the May 2022 election manual because they did not go through the regular rulemaking process.
Swartzle ordered Benson to either rescind the manual in its entirety or modify certain parts that he said were inconsistent with Michigan’s election law and the Administrative Procedures Act.
Other election challenger rules that were challenged in court included the creation of new, unique challenger credential forms and rules that made it unclear whether political parties could name challengers on Election Day.
The cell phone rule specifically prohibits pollsters, poll watchers, poll inspectors, and election workers from having electronic devices that can send or receive information to absentee ballot counting boards while polls are open between 7 a.m. and 8 p.m. Electronic devices covered by the ban include laptops, tablets, smart watches and phones.
The rule goes a bit further than state law, which already prohibits the use of electronic devices in absentee ballots if they are used to transmit election information outside the location before the polls close.
Swartzle’s decision 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 Thursday’s Supreme Court order, arguing in a dissent that it was “a convenient way to sidestep the merits of this appeal while still giving the defendants the relief they seek.”
“The election will likely come and go with the secretary of state’s handbook firmly contested, even though the only court to decide the merits has found that it contains new provisions that exceed the secretary of state’s authority,” Viviano wrote.
Republican-nominated Judge Brian Zahra also wrote a dissent, agreeing with Swartzle’s analysis that concluded elements of the handbook run afoul of the state’s Administrative Procedure Act, which requires new rules to go through a lengthy rulemaking process. He called for other signature verification guidelines issued by Benson before the 2020 election also found to have circumvented the APA and declared invalid, but only after the electionin March 2021
“… the majority’s decision to grant the stay will only allow the defendants to continue this practice,” Zahra wrote.
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