By Patrice Johnson | October 25, 2023
Defeatists may feel tempted to throw up their hands and say Michigan courts legislate from the bench, but last Thursday's Court of Appeals decision indicates naysayers would do well to plant their palms to their sides. The court's unanimous decision marks a significant win for election integrity—and a resounding loss for Secretary of State Jocelyn Benson (SOS) and her appointee, Jonathan Brater, Director Bureau of Elections (BOE).
Not only did the appeals court uphold a prior court ruling, it began its response with a quote from the lower court, “[a]n executive branch department cannot do by instructional guidance what it must do by promulgated rule.”
Not only do we agree with this observation, we also agree with the trial court’s resolution on the issues now challenged on appeal. Accordingly, we affirm.
Two courts have now decreed that the state’s top elections officials violated the law in their May 2022 election manual. Count One alleges that the manual violated Michigan Election Law in a number of ways. Count Two asserted that the manual was created and circulated without the proper notice-and-comment requirements outlined in the state’s Administrative Procedures Act (“APA”).
Specifically, the manual contained guidelines and rule changes related to the appointment, rights, and duties of election challengers. In Michigan, election challengers play a crucial role in monitoring voter eligibility and other election-related matters on behalf of political parties.
The court ruled that not only did the SOS and BOE exceed their authority, but their rule changes unlawfully changed the rules and regulations as defined by law. In other words, Benson and Brater’s elections manual misrepresented state law and misled (and pressured) the state’s 1603 elections clerks to violate the law.
The SOS’s defense was that her manual was only “instructional guidance.” Not so, the courts found. The SOS is required to circulate (“promulgate”) rules that convey election law. It cannot take liberties under the guise of pretending to give mere instructional guidance. The manual carries the appearance and force of law because it is, by law, supposed to convey the law, not rewrite it or massage it or contort into something it is not.
The appeals court ruling found in favor of plaintiffs Philip M. O’Halloran, M.D., Braden Giacobazzi, Robert Cushman, Penny Crider, and Kenneth Crider on all two counts. It struck down the four specific rules below as violating Michigan law:
Specific Credentialing Form: The requirement that prospective challengers fill out a specific credentialing form, published by the secretary of state, was invalidated.
Recording “Impermissible Challenges”: A rule preventing election inspectors from recording “impermissible challenges” that are based on factors other than a voter’s eligibility or an election process.
Communication Restrictions: A restriction allowing election challengers to communicate only with designated “challenger liaisons” among election inspectors.
Electronic Devices Prohibition: A prohibition on the possession of electronic devices in absentee ballot counting centers.
Limitation on election official authority: The court emphasized that, while state election officials have broad authority over election workers, this authority does not extend to outside observers like election challengers.
Appearance of Law: The court stated that the election challengers’ manual should have been published as a formal administrative rule under the Administrative Procedures Act. (As the lower court said, “[a]n executive branch department cannot do by instructional guidance what it must do by promulgated rule.”
Roots of the lawsuit
The process began in 2021 when a volunteer for Pure Integrity Michigan Elections compared Michigan statutes to the Secretary of State’s manual. PIME notified Benson’s office and chairs of the House and Senate Elections Committees. Senator Ruth Johnson, Chair of the Senate Elections Committee, notified Benson’s office of the violations. No response was forthcoming.
Then during Michigan’s 2022 primary election, a Republican election challenger, Braden Giacobazzi, was removed from an absentee ballot counting center in Detroit for alleged harassment of election officials.
Phillip O’Halloran, Braden Giacobazzi, and others pursued a litigative route, while PIME and the Michigan Elections Integrity Director to the RNC escalated the issue to the Republican National Committee (RNC) in Washington D.C. Phil O’Halloran’s group and the RNC proceeded independently with litigation. In the end, the judge consolidated the two cases into one lawsuit brought by the RNC, Michigan Republican Party, and other plaintiffs.
In October 2022, the lower court found against Secretary of State Benson. She parried, saying she lacked time to implement the changes with the election so close at hand. The courts found in Benson’s favor, and she made none of the court-ordered changes. After the election, the case worked its way to the court of appeals.
Patrick Colbeck, a former state senator, wrote, “The 3-0 decision by the Michigan Court of Appeals is a major victory for election integrity, but it is clear that the efforts by Michigan Secretary of State Jocelyn Benson to discourage oversight of elections by poll challengers will continue.”
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The Remedy and what the future holds
As a result of the ruling, Michigan election officials now face the task of rescinding the 2022 guidance, revising it to comply with the court’s order, or amending an earlier version to align with the ruling.
The question remains, Colbeck writes, “Will Jocelyn Benson finally issue directives to election officials that comply with Michigan election law?”
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Source: Patrick Colbeck, Five Courts Have Concluded That MI SOS Jocelyn Benson Conducts Unlawful Elections
Despite this decision, the Michigan Department of State plans to appeal the ruling, according to reports from MLive. Plus, in apparent response to these legal challenges, the Democrat-controlled legislature and governor’s office are moving quickly to change election law to legitimize the Secretary’s directives.
In conclusion, the recent Michigan Court of Appeals decisions signal victories for election integrity. However, the ongoing efforts by Secretary Benson to discourage oversight by poll challengers raise questions about future compliance with Michigan election law. The legal landscape surrounding election rules and challenges in Michigan continues to evolve with implications for the state’s electoral processes.
I look forward to seeing at noon tomorrow and every Thursday.
Patrice Johnson, chair
Michigan Fair Elections
Thanks to the generosity of donors like you, East Lansing and Ypsilanti rescinded ordinances compelling campus-area landlords to hand out voter registration materials. Our research provided the basis for a case in which the judge found Secretary of State Jocelyn Benson guilty of misrepresenting election law in her elections manual. The day after we filed a letter demanding the city of Flint hire equal numbers of Republican and Democrat election inspectors, the clerk resigned. Currently, we have filed two cases to protect elections in Michigan and Pennsylvania. More are in the works.
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MFE Coalition Task Force Meeting
Michigan Fair Elections
12:00 PM to 1:00 PM, Oct. 19, 2023, via Zoom. Link:
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Patrice Johnson, Chair, Mich. Fair Elections
--Situational analysis and Training
--Suing the government to improve it
John Burns, state House Legislative Assistant
--Assault on election integrity in Lansing. What you can do…today!
Maureen Hillary & Margie Gillean
--Social and online media
Next Task Force Coalition Meeting: Thurs., Nov. 2, 12:00 PM to 1:00 PM meeting. Recurring weekly link. Please download and import the following iCalendar (.ics) files to your calendar system: Please download and import the following iCalendar (.ics) files to your calendar system. Weekly: https://us02web.zoom.us/meeting/tZEucOqopz8sGdNYKcvyh8hDELFWbG9eNdwz/ics?icsToken=98tyKuGtrTwpGt2RthqARpwMA4_Cb_TxmCldjadzpTTmFTlbOgvSE85kBbBYSd3-
Mark your calendar:
Citizen Research Project | Ned Jones, EIN
Every Tuesday at 6 p.m. (ET)
Election Technology | Jim Womack, NCEIT
Every 2nd and 4th Thursday at 4 p.m. (ET)
Introduction to Election Integrity Infrastructure | Kerri Toloczko and Ned Jones, EIN
Every 2nd and 4th Thursday at 7 p.m. (ET)
Vote By Mail / USPS | Ned Jones, EIN
Every 1st and 3rd Tuesday at 4 p.m. (ET)
Legislative Development | Kathleen Harms, TN
Every Wednesday at 2 p.m. (ET)
Ranked Choice Voting | Melody Clarke, EIN
Every 1st and 3rd Thursday at 4 p.m. (ET)
Voter Roll Maintenance | Cleta Mitchell, EIN
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Vulnerable Voters | Kerri Toloczko, EIN
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Kerri Toloczko: Join us on Tuesday, September 12th when we continue to discuss the importance of protecting minority voters through our Vulnerable Voters calls.
Media Training | Kerri Toloczko, EIN
Every 1st Thursday at 7 p.m. (ET)