BREAKING: Benson's rule requiring clerks to delete electronic poll books struck down

Photo credit: Kevin Kijewski

This article was drafted with the assistance of AI and edited and fact-checked by Kristine Christlieb

November 2, 2026

LANSING, Mich. — It's final. A Michigan Court of Claims judge on Monday decided a state administrative rule requiring local election clerks to delete electronic poll book (EPB) software and associated files within seven days after an election’s certification conflicts with Michigan law requiring longer retention of election records.

In McQueer v. Benson (Court of Claims No. 26-000172-MZ), Judge Michael J. Riordan held that Michigan Administrative Code Rule 168.48 is invalid because it violates MCL 168.811 of the Michigan Election Law. That statute requires retention for 22 months of “all election returns, including poll lists, statements, tally sheets ... and other returns made by the election inspectors of the several precincts.”

The court found that EPBs qualify as such election returns and must be preserved in their original electronic form, including metadata such as entry times, user identities, corrections, and status flags.

“When an administrative rule conflicts with a statute, the statute controls,” the opinion stated. The court rejected the Michigan Department of State’s argument that uploads to the Qualified Voter File (QVF) and printed reports sufficiently preserve the records, noting that such transfers alter content, context, and structure and strip away critical metadata.

“The EPB does not retain its content, context, or structure when uploaded into the QVF. ... Metadata is critical to understanding the EPB and the data within,” Riordan wrote.

The case began in August when Michelle McQueer, Clerk of Bridgewater Township in Washtenaw County, sued Secretary of State Jocelyn Benson, Elections Director Jonathan Brater, and the Department of State.

McQueer said the rule placed her in an impossible position: deleting the files risked violating federal retention requirements under the Civil Rights Act (potentially carrying up to a year in prison), while refusing to delete them risked Michigan penalties.

In a written statement to MFEI News & Commentary, Patrice Johnson, founder and chair of Michigan Fair Elections Institute wrote: "We cannot fail to acknowledge the courage it took for Michelle McQueer, township clerk, to stand up to Secretary of State Jocelyn Benson." She summarized the importance of McQueer's actions, saying, "Her courage, the skill of her lawyer, Kevin Kijewski, plus having right on her side made this decision possible and draws attention to Secretary Benson's consistent overreach."

McQueer sought guidance from state officials and received no response before filing suit as the August primary certification approached. The Republican National Committee and Michigan Republican Party later intervened.

The court granted a permanent injunction barring enforcement of Rule 168.48 statewide and directed Benson’s office to issue new instructions to about 1,520 local clerks. Those instructions must require transfer of EPB data from precinct laptops to encrypted flash drives for secure storage for the full 22-month period. After that time, the data can be erased and the drives reused. The court described the added burden as minimal — at most about $100 per additional flash drive — and noted that retention protects audit rights under the Michigan Constitution.

On a separate claim, the court sided with the state, ruling that Rule 168.48 is not preempted by the federal 22-month retention requirement in 52 U.S.C. § 20701. It found that EPBs, generated internally from the QVF, do not fall under the federal statute’s language covering records that “come into [an election officer’s] possession” from voters or outside sources.

The ruling arrives the day before Michigan’s Nov. 3 general election. Benson, the Democrat nominee for governor, can appeal. Until any higher court says otherwise, her deletion rule cannot be enforced, and the poll book files must be retained.

Kijewski called the outcome a statewide victory for election records preservation, writing that “one clerk… two laws… the law won.”

The full opinion is available on the Michigan courts website.