(Source: MIRS.news, Published 10/20/2022) A Court of Claims judge invalidated the Bureau of Elections' five new instructions for election challengers Thursday, 20 days from the November midterms.
Judge Brock Swartzle ruled the Bureau exceeded its authority by banning cell phones from absentee counting boards, creating a new form for election challengers and limiting challengers' ability to talk with election inspectors or record certain challenges.
The Gov. Rick Snyder-appointed judge spent the most space in his 26-page opinion on the cell phone ban.
"Prohibiting electronic devices in the AVCB facility might be a good idea, but before a good idea can become law or have legal force and effect, that idea must be embodied within an enacted statute or promulgate rule," Swartzle wrote.
Today is an "incredible victory" for Michigan elections, said Michigan Republican Party officials, who along with the Republican National Committee, brought a lawsuit challenging the election challenger manual.
"This legal win will help deliver the transparency needed in our elections and it sends a clear message to (Secretary of State) Jocelyn Benson and her Democrat cronies that meddling in our elections to their benefit won’t be tolerated," MIGOP Chair Ron Weiser said. "Our goal as a party continues to be the same: We want to make it easier to vote and harder to cheat and we won’t take our eyes off the ball."
The Swartzle ruling orders Benson and Elections Director Jonathan Brater to rescind or revise the manual.
It was not clear late today if the state will appeal Swartzle's ruling.
A separate lawsuit, filed on behalf of Penny Crider, who is running for the House's 17th District seat; Kenneth Crider, who is running for the Senate's 6th District; poll worker Dr. Philip O’Halloran and poll worker Robert Cushman, included similar challenges and was consolidated with that of the MIGOP and RNC suit.
Swartzle did not invalidate the BOE's entire May manual, only those additions that are outside of what Legislature passed into law or the administration passed through the rule-making process. On challengers, the Legislature "has made clear, the instructions in the May 2022 Manual are binding only on those who operate the absent voter counting boards (AVCB)."
"Defendants have authority to issue instructional guidance, but they do not have the authority to issue rules with the force and effect of law, apart from those promulgated through notice-and-comment rulemaking," Swartle wrote. "To the extent that defendants have issued an unpromulgated rule in the guise of an 'instruction,' they have exceeded their lawful authority under the Michigan election law and APA" (Administrative Procedures Act).
Among the restrictions were a new credential form and restricting which poll workers the challengers can communicate with, according to the complaints.
Swartzle did not take issue with a uniform challenger-credential form, but concluded the Legislature already established evidence to validate credentials. If the credential meets the statute – MCL 168.732 – then "nothing more is required." The BOE's manual requiring a uniform challenger-credential form, therefore, violates Michigan election law and Administrative Procedures Act, Swartzle concluded.
Swartzle shared the state's concerns about the security of absentee-ballot counting, but he took issue with the manual's ban on electronic devices, such as cell phones, noting that Michigan law doesn't preclude a "challenger from merely possessing an electronic device in the AVCB facility."
The BOE issued the new rules following the disputes during the 2020 election. Absentee voting is currently underway.
