Michigan Secretary of State Jocelyn Benson’s guidance burdening poll challengers violates state law, a state appeals court ruled on Thursday.
In a 3-0 decision, the Michigan Court of Appeals determined that guidance issued by Benson, a Democrat, ahead of last year’s Aug. 2 primary elections violated provisions of the state’s Administrative Procedures Act, which outlines rulemaking authority for state agencies. More specifically, the court reaffirmed an October 2022 trial court ruling that Benson’s guidelines “reach beyond defendants’ general supervisory scope” and ordered that they be revised or rescinded.
Plaintiffs in the case include several election challengers from the 2022 midterms, the Michigan Republican Party, two candidates for the state legislature, and the Republican National Committee.
As Victoria Marshall previously explained in these pages, Benson’s updated guidance included regulations mandating individuals fill out a newly devised form in order to become poll challengers, as well as the creation of “an artificial deadline for when poll challengers may be appointed.” The new guidance also included restrictions on “who poll challengers can communicate with” and a prohibition on using “electronic devices in absentee ballot counting areas.”
“Defendants have broad authority to issue binding non-rule instructions on election workers, but not on challengers or other outside observers,” the court ruled. “Instructions directed at [election challengers] thus go beyond defendants’ immediate scope of inherent supervisory authority and instead function as regulations of general applicability, which for that reason must be issued as properly promulgated APA rules.”
After the trial court’s October 2022 decision mandated
