Michigan Nonprofit Investigates State's Flawed Rulemaking Process Allowing Violations of Federal Election Law
- 6 hours ago
- 4 min read
FOR IMMEDIATE RELEASE
March 26, 2026
Contact:
Melanie Nievelt
248.425.8896
STOCKBRIDGE, Mich. — A comprehensive investigation of 24 states with centralized regulatory powers finds Michigan is the only one allowing the creation of regulations without standard independence protections.
Compromised Checkpoints, a 195-page report published by Michigan Fair Elections Institute (MFEI), exposes structural failures in the state’s administrative rulemaking process and specifically examines how recent rulesets coming from the Secretary of State's office allow for violations of federal election law.
"The review and oversight process for creating these rules is important because they have the force of law but were not passed by legislators," explained Patrice Johnson, lead author as well as Chair and Founder of MFEI.
The report details how Michigan’s Office of Administrative Hearings and Rules (MOAHR) — created solely by executive order — served as the gatekeeper for three rule sets from the Department of State. Two are already in effect; the third is advancing. Collectively, they will govern every phase of Michigan’s November 3, 2026, general election, which will decide 13 U.S. House seats, a U.S. Senate seat, the Governor, Secretary of State, Attorney General, all 110 State House and 38 State Senate seats, and two Michigan Supreme Court justices.
“When rules with apparent violations of federal, state, and constitutional law advanced unimpeded, we decided to investigate,” said Johnson. “What we found is that Michigan is a complete outlier in comparison to other states with similar regulatory procedures. Its system lacks the independence protections every comparable state has built in — and it violates the Michigan Constitution.”
Michigan as a National Outlier
MFEI’s 24-state comparison shows Michigan is the only one that:
• created its central administrative review office by gubernatorial executive order, without statutory foundation.
• combines rulemaking oversight with binding adjudication (judging) in the same office.
• provides zero of five standard independence protections (statutory basis, Senate confirmation, fixed terms, qualification requirements, and structural/budgetary independence).
The other 23 states average 3.65 of 5 protections (73%). Twelve achieve full independence through legislation; eleven achieve partial. Michigan alone ranks 0%, “Tier 3 — Executive Capture.”
Michigan Constitution as Primary Basis
The report concludes that MOAHR’s structure is constitutionally infirm under six provisions of the 1963 Michigan Constitution, including:
• Separation of powers (Art. III, § 2)
• Vesting of legislative authority (Art. IV, § 1)
• Requirements for executive offices to be created by law (Art. V, § 2)
Key Precedents
• Blank v. Department of Corrections (2000): Michigan Supreme Court struck down a legislative veto over rules as a separation-of-powers violation.
• INS v. Chadha (1983): U.S. Supreme Court required bicameralism and presentment to the governor for actions altering legal rights.
• Whiley v. Scott (Fla. 2011) and Evers v. Marklein (Wis. 2025) are cited as persuasive authority invalidating similar executive or committee gatekeeping.
The Three Rule Sets and Apparent Violations
• Rule Set 2025-13 (effective Feb. 23, 2026): Creates a two-tiered voter registration system, exempts civilian overseas voters from standard verification, and imposes high costs on challenges — raising concerns under 52 U.S.C. § 10101. It also contradicts Michigan Attorney General Opinion #7322.
• Rule Set 2025-14 (effective Oct. 23, 2025): Requires destruction of electronic poll book data just seven days after certification, conflicting with the 22-month federal retention requirement under 52 U.S.C. § 20701.
• Rule Set 2025-15 (advancing in 2026): Mandates government-provided poll challenger training materials, raising compelled-speech (First Amendment) and statutory conflicts (MCL 168.733). Currently, the Legislature is subpoenaing MDOS training materials, and MDOS is withholding them. Litigation is pending (House of Representatives v. Benson).
Structural Cause: Thirty Years of Executive Action
Four governors — two Republican, two Democrat — created, abolished, and recreated the review office via executive orders alone, bypassing the legislative authorization required by the Michigan Constitution. The process cleared the path for legally unauthorized rulemaking and resulted in “the system functioning as designed.”
“This was a choice,” Johnson said. “Michigan’s oversight has operated for thirty years without the statutory foundation or independence protections that every comparable state provides. The result: checkpoints failed, and rules with apparent federal violations now govern our elections. Proven reform models exist today for lawmakers and the Governor.”
About the Report
Compromised Checkpoints draws on six months of primary-source research, including a detailed 24-state analysis, rule-by-rule legal review of 40 provisions, a model complaint framework, and policy recommendations based on constitutional and interstate models.
The foreword is written by Distinguished Professor Emeritus William Wagner, a former federal administrative law judge, who affirms the methodology is sound and the documentation comprehensive. Sixteen additional experts provided testimonials — among them Ambassador Carla Sands, constitutional attorneys John Eastman and Erick Kaardal, Cleta Mitchell of the Conservative Partnership Institute, and Michigan state legislators including Representatives Smit, Bollin, Carra, Johnsen, and Wortz.
A two-page fact sheet can be found here.
About MFEI
The Michigan Fair Elections Institute is a 501(c)(3) nonprofit founded in 2022 dedicated to nonpartisan research and education on election administration. MFEI does not support or oppose candidates or parties and applies consistent standards regardless of political affiliation. The issues documented span administrations of both major parties.
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