INCOMING: A Fourth Rule Set Is Launching, A Familiar Playbook — And a Hearing You Need to Know About
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By Patrice Johnson, Chair and Founder, Michigan Fair Elections Institute
April 21, 2026
This is Part 2 of a two-part series. Part 1, MI Secretary of State Is Enforcing Laws She Wrote Herself, examined the Bureau of Elections’ (BOE) April 14 letter threatening Antrim County Clerk Victoria Bishop with criminal liability under legal standards the legislature never enacted.
The BOI letter to Bishop arrived nine days before the first public hearing on Rule Set 2025-63 ST, scheduled for May 22. That timing is worth noting because the enforcement pattern visible in the Bishop letter appears to be a preview of what Rule Set 2025-63 is designed to formalize.
Once these standards are embedded in the Administrative Code, they become harder to challenge, easier to enforce, more intimidating to clerks, and further removed from the legislative process that is supposed to authorize them.
Rep. Jay DeBoyer Paints the Big Picture
Michigan Rep. Jay DeBoyer (R-District 63) chairs the Michigan House Oversight Committee. In a written statement to Michigan Fair Elections News & Commentary, DeBoyer provides what he believe is the motive behind these rule sets.
"It seems without statutory Authority the Secretary of State’s office through the Bureau of Elections is attempting to centralize election control in Lansing. They continue to speak of States controlling Authority and claim that they have some statutory provision that allows for it all while they deny access to their training and instructive material to the legislature who is actually the one that makes those determinations. You can't help but wonder what their possible motivation would be to threaten to criminally charge a clerk who is just doing their actual assigned duty with regard to the integrity of the voter rolls. This is just another example of why Jocelyn Benson is not qualified nor should be the Secretary of State or governor if there's any hope to reestablish our election integrity.
I stand with Clerk Bishop in opposition of a state takeover of local elections and appreciate all of the hard work that has been put into clean up the voter rolls in Antrim County. After all it is the will of the people."
Rule Set 2025-63: The Next Layer Is Already Being Built
Rule Set 2025-63 ST proposes eight new rules covering “General Roles and Responsibilities of Election Officials.” Three provisions warrant particular public attention.
R 168.55(2) would authorize Bureau of Elections staff to complete duties assigned by law to the Michigan Board of State Canvassers (BOSC), a constitutionally established, bipartisan body whose composition and independence are anchored in the state’s Constitution (1963), Art 2, Sec 7.
The BOSC is not a subordinate unit of the executive branch. The legislature was deliberate when it made the Bureau director a nonvoting, nonmember secretary of the Board. A Secretary of State administrative rule cannot reassign constitutional functions.
R 168.56 and R 168.57 would insert the Secretary of State’s authority into the internal management of independently elected county and township clerks. MCL 168.21 gives the SOS supervisory authority over clerk performance. It does not authorize the Secretary to prescribe how elected officials organize their own offices or delegate duties to their own staff. That power belongs to the clerk under MCL 168.29 — not to Lansing.
R 168.58 imports definitions from the Michigan Campaign Finance Act and the Government Ethics Act into election administration rules. None of those definitions has any operative function in the current rule set. Their presence suggests a Tammany Hall-style ploy in which politicians lay groundwork for future rules the public has not yet seen. By the time those rules arrive for comment, the definitional question already will be settled, and the public will have lost its chance to evaluate the combined effect.
This is the recognized structure of incremental regulatory expansion: Install the vocabulary quietly and then build obligations on top of it later.
A Pattern, Not an Incident
People v. Stephanie Scott, currently pending in Hillsdale Circuit Court before Judge Lisznyai, raises two distinct but related constitutional concerns that go to the heart of how Michigan’s Secretary of State has been using the rulemaking process.
The first concern is the distinction between laws and rules. Felony charges attach to violations of law — statutes enacted by the legislature through the full constitutional process of public hearings, recorded votes, and gubernatorial signature. They do not attach to administrative rules promulgated by a executive agency.
Defense counsel David Kallman argued this point at the April 13, hearing, and it is well-founded. A rule is not a law. Speeding is a felony in certain circumstances because the legislature made it one. But if the Michigan Department of Transportation simply issued an internal rule declaring a stretch of highway off-limits, no prosecutor could charge a felony for driving on it.
The source of the prohibition matters. Only the legislature can make conduct felonious.
The second concern is timing. The rules Scott allegedly violated were promulgated after the conduct they are now being used to prosecute. This is the definition of ex post facto — after the fact. Consider the building code analogy: a contractor who builds a house in full compliance with the code in effect at the time of construction cannot be prosecuted four years later when the municipality updates its requirements. The structure was lawful when built. The new code cannot reach backward. Scott’s situation is directly parallel. The Secretary of State created the rules after the fact, and now seeks to apply them to conduct that predated their existence.
Taken together, these issues suggest that the prosecution of Stephanie Scott rests on a foundation that is constitutionally suspect on two independent grounds — the source of the prohibition and the timing of its creation.
Judge Lisznyai appeared to take the ex post facto argument seriously at the April 13 hearing, and rightly so.
The Scott prosecution, the Brater letter to Clerk Bishop, and the successive promulgation of Rule Sets 2025-13 through 2025-63 are not separate events or even a concerning pattern of behavior. They reflect a consistent, deliberate strategy to use administrative rulemaking to create standards the legislature never enacted, use the Manual to distribute those standards without public process, and then use enforcement action to make examples of clerks who do not comply.
MFEI’s 212-page investigative report, Compromised Checkpoints: Restoring Independence in Michigan’s Election Oversight, released April 2026, documented how Michigan’s two rulemaking oversight checkpoints set the stage for three legally unauthorized rule sets with 40 rules to advance without correction. Governor Whitmer created one checkpoint, the Michigan Office of Administrative Hearings and Rules (MOAHR) by executive order and without statutory authorization. The other rulemaking oversight agency, the Joint Committee on Administrative Rules (JCAR) is unable to veto these rules and structurally prone to gridlock.
Among 24 comparable states with dual rulemaking oversight systems, Michigan’s MOAHR is the only one with no statutory foundation (no basis in law). Twenty-three states, on average, adopt 73% (3.65) of five standard independence protections. Michigan’s MOAHR has none.
The system did not fail by accident. It was designed over thirty years to fail exactly this way.
What You Can Do Before May 22
Pure Integrity Michigan Elections has submitted a formal objection to Rule Set 2025-63 ST for the hearing record, identifying the three provisions that exceed statutory authority and documenting the pattern of incremental centralization across all four rule sets.
The public hearing is May 22, 2026. Written comments may be submitted to Elections-PublicComment@Michigan.gov by 5:00 p.m. that day. What is adopted in the coming weeks will govern November 2026.
MFEI is supporting the rights of clerks to serve their constituents and not be caught in an impossible compliance conflict between federal law, state law, and a weaponized Secretary of State Elections Manual.
Stay tuned for MFEI’s release of the abridged edition of Compromised Checkpoints. The full 195-page report is available free of charge at MiFairElections.org/library
Patrice Johnson is Chair and Co-Founder of the Michigan Fair Elections Institute (501(c)(3)) and Pure Integrity Michigan Elections (501(c)(4)). A former Fortune 50 executive and founder of five technology companies, she is also the award-winning author of The Fall and Rise of Tyler Johnson, a book that became the basis of the PBS documentary film, Finding Tyler.
