(Source: MIRS.news, Published 08/28/2024) The Secretary of State’s 2022 instructions that tightened restrictions on election challengers are consistent with state election laws and don't need to undergo the traditional rule-making process, the state Supreme Court ruled Wednesday.

The decision means election challengers are limited to whom they can go with any concerns and what subjects they can bring up to their designated election officials. 

Secretary of State Jocelyn Benson had argued that her office has a legal responsibility to issue uniform guidelines to the state's 1,600 clerks that ensure eligible voters can cast their ballots without interference from anyone who may be overstepping their role in the process.

Benson issued a statement that the Supreme Court ruling provides clarity for the “election officials, poll workers, challengers, and voters alike as we prepare for the November General Election and beyond.”

Republicans, who challenged the instructions in court, claimed that Benson overstepped her role by adding requirements for inspectors that are not in state law.

They found allies in the Republican nominated justices.

In his dissent, Justice Brian Zahra held that the manual “imposed on Michigan’s election process duties and obligations found nowhere in the Michigan Election Law.” He disagreed with the majority’s holding that the SOS’ requirements lack the force and effect of law.

“… A majority of this Court grants the Secretary of State carte blanche to publish these provisions of the manual under the guise of ‘procedure’ while affording no weight to the substantive statutory rights of challengers and voters,” Zahra wrote. “The majority does so without the slightest concern that such unregulated authority will result in a lack of any public discourse, transparency and accountability in establishing election requirements and procedures.”

The plaintiffs in O’Halloran v. Secretary of State and the separate, but consolidated, case DeVisser v. Secretary of State, challenged portions of “The Appointment, Rights, and Duties of Elections Challengers and Poll Watchers” directive, which included banning cell phones from absentee voter ballot processing facilities (AVBPF), creating a new form for election challengers and limiting the ability to talk and to whom.

The Court of Claims invalidated the restrictions, holding the Bureau of Elections exceeded its authority. The Michigan Court of Appeals affirmed in a 3-0 published opinion.

The Supreme Court agreed the challenge banning electronic devices in AVBPFs was moot as the Legislature amended the state statute to allow photography and videorecording under certain circumstances.

The Democratic-nominated majority upheld requirements that challenge direct communications to a designated “challenger-liaison” rather than any precinct election inspector and upheld identifying “permissible” grounds for a challenge, with some exceptions.

The majority also held that the requirements are an exception to the traditional rulemaking process because they are “interpretative rules,” which give guidance but lack the full force and effect of the law.

Zahra said the Secretary’s position that the manual revisions are “merely explanatory” and not rules is “difficult to comprehend” and he held the revisions have “the force of law (and) are inconsistent with the existing Michigan Election Law.”

The best example, Zahra explained, is that challenger liaisons at AVBPFs are local clerk’s staff – not election inspectors.

“Given that the statute expressly permits the challengers to communicate with an election inspector, the new rule clearly conflicts with the Michigan Election Law,” Zahra wrote.

Chief Justice Elizabeth Clement agreed with the majority that the challenge to the provision banning electronic devices in AVBPFs was moot, and she agreed with Zahra’s opinion that the uniform challenger-credential form conflicts with state statute MCL 168.732.

Clement also agrees with Zahra’s position on the challenger-liaison, but she disagreed with Zahra’s holding on whether the provision has the force and effect of law.

Justice David Viviano joined Zahra’s statement.