(Source: MIRS.news, Published 06/18/2024) Whether the Secretary of State has the power to issue specific instructions on how challengers and poll watchers are supposed to act at the voting booth without going through the traditional rule-making process is now in the Michigan Supreme Court’s hands. 

Tuesday, the justices heard oral arguments in two cases – O’Halloran v. Secretary of State and DeVisser v. Secretary of State – challenging Secretary of State Jocelyn Benson’s 2022 manual, which bans challengers from recording events and bans them from having cell phones. 

The Court of Claims sided with the Republican challengers in October 2022, invalidating five new instructions for election challengers, but a 5-2 Supreme Court suspended Judge Brock Swartzle's ruling for the November 2022 election. 

One year later, the Michigan Court of Appeals affirmed Swartzle’s 2022 ruling. 

Now, it's the Supreme Court's turn. 

Assistant Attorney General Heather Meingast argued today that the Legislature allowed the Secretary of State to issue specific instructions – not rules – procedures and forms for processing election challenges. She argued that since the Secretary of State operates under a stricter timeline in administrating elections, she has the ability to issue timely and effective instructions without going through the lengthy rulemaking process. 

Robert AVERS, who represents Richard DeVisser, the Michigan Republican Party and Republican National Committee, countered that the SOS can’t issue instructions or promulgate rules that conflict with state law. 

“All of these rules, even if the Secretary went back and promulgated them, conflict with Michigan election law,” he said. 

Avers noted that the justices’ questions are the “perfect conversation” that should have occurred in a hearing if Benson had gone through the rulemaking process. 

Chief Justice Elizabeth Clement questioned whether Benson would feel she had “carte blanche to issue whatever instructions” her office desires without engaging in rulemaking if the court sided with the defendants. 

Republican-nominated Justice David Viviano questioned where the Secretary finds the authority for clerks to decide which challenges are permissible and don’t have to be recorded or adjudicated for future review, and fellow Republican-nominated Justice Brian ZAHRA asked why the rulemaking process wasn’t used. 

“In other words,” Viviano explained, “to act as sort of the judge, jury and executioner on whatever is designated as quote, unquote, ‘impermissible challenges.’” 

Meingast replied that the challenger has to articulate “good reason” to suspect that the voter isn’t registered, and can’t simply say, “I challenge Mr. Smith.” 

Viviano questioned what happens if a clerk or someone makes an error about the validity of a challenge, saying it seems a transparent system is desired. However, he noted, there’s a provision that essentially “encourages” someone “who is busy to forget about it” and not record the challenge. 

“The concern would be, of course, the power to make a challenge disappear and there’d be no record of it,” Viviano continued.  

Meingast disagreed, reiterating that challengers have to “articulate they know or have good reasons to suspect someone is not registered.”  

Justice Megan Cavanagh jumped in asking if election inspectors are required to make a merits determination on each challenge. 

“The liaison who handles the challenge, when receiving the challenge, they do have the ability … to determine whether that’s an actionable sort of challenge,” Meingast replied. “… We don't have to accept a challenge that is outside the parameters or is based on something that is simply wrong."