Judge knocks down some of Benson's new election rules; state to appeal

A state judge has blocked rules related to the management of election challengers by Secretary of State Jocelyn Benson's office, finding a May 2022 election manual from Benson's office contained rules that should have gone through the regular rulemaking process.

Court of Claims Judge Brock Swartzle ordered Benson's office either to rescind the May 2022 manual in its entirety or amend specific sections he identified as out of step with Michigan election law and the Administrative Procedures Act.

Benson's office said the department will appeal the ruling from Swartzle. His order comes after several election challengers, two legislative candidates and the state and national Republican parties challenged the rules contained in the May manual as violating Michigan election law and sidestepping the proper rulemaking proces

"An executive branch department cannot do by instructional guidance what it must do by promulgated rule," Swartzle wrote in the Thursday order. "This straightforward legal maxim does most of the work in resolving these three consolidated cases."

The Michigan Bureau of Elections has always provided guidance to clerks and participants to ensure "legal compliance, transparency, and equal treatment of all voters," said Jake Rollow, a spokesman for Benson's office. The May 2022 manual was no different, he said.

“We will appeal this ruling to provide certainty to all voters, clerks, election workers and election challengers on how to maintain the peace and order at all voting locations that state law requires and every voter expects and deserves," Rollow said.

The Michigan Republican Party celebrated the win in a statement Thursday, calling it a victory for "election integrity and the rule of law."

"Our goal as a party continues to be the same: We want to make it easier to vote and harder to cheat and we won’t take our eyes off the ball," said Ron Weiser, chairman for the Michigan GOP.

Parts of the manual that are simply "instructional" are not binding and thus don't have to go through the rulemaking process, Swartzle said. But other areas of the manual where Benson issued binding rules should have gone through the rulemaking process detailed in the Administrative Procedures Act, Swartzle said.

"Under the APA, only a department's 'rule,' promulgated by that department through the crucible of public notice-and-comment rulemaking, has the force and effect of law," Swartzle wrote. "Any other pronouncement by a department does not have the force and effect of law unless specifically authorized by our Legislature."

Swartzle zeroed in on specific rules in the manual that banned personal electronic devices among individuals working in absentee voter counting board facilities; created new, uniform credential forms for challengers; and made it unclear whether political parties could appoint challengers on Election Day, as allowed by law. Those rules go beyond Michigan election law, he said.

The law around absentee vote counting boards, Swartzle wrote, prohibits "a challenger from disclosing information relating to the processing of ballots before the polls close." But, he said, "it does not categorically prohibit the possession of electronic devices" in the counting board facility.

Swartzle also scrutinized rules in the manual that required challengers to communicate with election inspectors only through a designated "challenger liaison" and limits what types of challenges are recorded in a poll book to exclude an "impermissible challenge."

But the law allows for neither of those restrictions, Swartzle said.

"There is no discretion available to the election inspector not to record a so-called 'impermissible challenge' to a person's voting rights," Swartzle wrote. "...Even if the challenge is determined to be without basis in law or fact, if the challenge is made, it must be recorded."

Swartzle's decision came after a separate Court of Claims judge in March 2021 ruled absentee voter signature guidance issued by the Bureau of Elections ahead of the November 2020 election also should have gone through the rulemaking process, a decision that Benson did not appeal.

Benson has been working with the Legislature since to find some middle ground on signature verification rules, which are unclear in state law. But Benson maintained the guidance she gave formally in 2020 had been given informally for years prior to clerks who asked about it.