The Michigan Supreme Court suspended the order on voting opponents
The Michigan Supreme Court on Thursday suspended a Michigan Court of Claims Order – the Republicans celebrated – it was necessary revisions to instructions for election observers who monitor polling stations and rooms for counting absentee ballots. The Michigan Supreme Court’s order leaves in place for the general election the same polling guidelines used in the recent August primary.
Secretary of State Jocelyn Benson and election officials expressed concern that last-minute revisions ordered by a lower court would cause confusion and chaos at the polls and counting rooms. Former Michigan Elections Director Chris Thomas is concerned that it could potentially open the door to intimidation of election workers.
Republicans announced the earlier lower court order as a legal victory in response to a pair of lawsuits challenging the legality of the polling manual: one by the Michigan GOP and the Republican National Committee and another by 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’s order, Judge Elizabeth Welch — a Democratic nominee — chided those who brought the lawsuits for waiting until the end of September to file them. “The general election is now less than a week away. Training for poll workers is complete. It would be impossible to retrain thousands of workers across our state within days,” she wrote.
Judge Richard Bernstein — a Democratic nominee up for the ballot this fall — wrote in his statement that “there are clearly significant legal issues here that deserve this court’s full attention, which unfortunately is not feasible in the time remaining 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 polling manual would prove disruptive.
In a dissenting opinion, Justice Brain Zahra cast doubt on claims by election officials that the lower court’s last-minute changes to the poll-calling manual would create logistical hurdles and require the retraining of thousands of election workers. Zahra was nominated by the Michigan GOP and will be up for re-election this fall. Republican nominee Judge David Viviano argued in his dissent that Benson and Michigan Elections Director Jonathan Brater did not meet the legal standard to grant their request to stay the lower court’s order.
“We live in a political age where one side claims our ‘democracy is at stake’ as the other questions the integrity of our elections — a centuries-old and seemingly bipartisan tradition,” Viviano wrote. “Therefore, the stakes of this case — which will affect how this year’s election is conducted — could not be higher. But you wouldn’t know that from the majority’s treatment of the case.”
Vote challengers have the authority to challenge the voting rights and election procedures they observe. Meanwhile, poll watchers can observe, but not challenge, electoral processes. The lawsuits against Benson and Brater alleged that the handbook for challengers and observers violated Michigan election law and included rules that had to pass a process of scrutiny by the public and state lawmakers.
Benson and Brater appealed to the Michigan Court of Appeals a day after the Court of Claims ordered a review of the manual. When the appeals court didn’t weigh in on the matter by the deadline requested by Benson and Brater, the couple asked the Michigan Supreme Court to stay the lower court’s decision pending an appeal.
Michigan Court of Appeals Judge Brock Swartzle — a former Michigan GOP candidate for the Michigan Supreme Court — has presided over GOP lawsuits seeking changes to the polling manual. In addition to allowing challengers to bring electronic devices such as smartphones and laptops into counting rooms that process absentee ballots, Swartzle ruled that challengers have the right to communicate with any election worker and that all their challenges — including those to which considers them to be unfounded – be recorded in the book survey.
Benson and Brater condemned Swartzle’s order, saying in legal filings that it “demonstrates 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 into counting rooms “pose a threat to the security of information present on (absentee voter counting boards), most importantly which way absentee ballots may be trending.”
Benson welcomed the Michigan Supreme Court’s order upholding current polling guidelines.
“At a time when we often see lawsuits filed not to enforce the law, but 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 challenger guidelines and protocols are used in previous elections will remain in effect for next week’s general election,” Benson said in a statement.
Michigan GOP spokesman Gustavo Portela condemned the Michigan Supreme Court’s order. “It is unfortunate that Benson, with Dana Nessel enabling her, refuses to follow Michigan law and the Democratic majority on the Michigan Supreme Court has now exploited a procedural problem to allow Benson’s illegal rules to get through this election,” he said in a statement. “The Michigan GOP disagrees and will continue to fight for a transparent and fair election process.”
The Secretary of State’s office has amended its handbook for challengers and poll watchers following disputes over 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 who are eligible can register to vote and vote until 8pm on Election Day, which is Monday. Voters can still request an absentee ballot or vote in person at their polling stations, which open at 7 a.m. and close at 8 p.m.
Clara Hendrickson fact-checks Michigan politics as a staff member at Report for America, an initiative of The GroundTruth Project. Make a tax-deductible contribution to support her work bit.ly/freepRFA. Contact her at [email protected] or 313-296-5743. Follow her on Twitter @clarajanehen.
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