Michigan Supreme Court to decide fate of Benson’s election rules

The Michigan Supreme Court is expected to rule soon on a legal challenge to the Secretary of State’s guidelines for poll challengers at voting places on election day.

The court heard oral arguments in the case on Tuesday. Democratic Secretary of State Jocelyn Benson – Michigan’s top election official – has endured a string of defeats in lower courts regarding polling place rules laid out in a manual issued by her office in 2022.

The instructions issued by her office include a credentialing form for poll watchers and rules for recording interactions as well as a ban on electronic devices in the rooms where absentee ballots are counted. Republicans say the rules – which the Secretary of State calls “guidance” – run afoul of Michigan election laws and, even if they didn’t, should have been promulgated through a process that includes approval by the Legislature’s bipartisan Joint Committee on Administrative Rules.

Running the guidelines past the committee would have opened the possibility of an effective veto by GOP lawmakers. Republican attorney Robert Avers said a lot of the questions before the court could have been resolved if the Secretary of State had worked through the bipartisan rulemaking process.

“And absent compliance with that process, the rules are invalid,” he said. “That’s exactly what happened here.”

But Assistant Attorney General Heather Meingast, representing Benson in her official capacity, said the guidance fits within the parameters of her authority to set rules that ensure the smooth operation of elections.

“Agencies making forms is a pretty routine matter,” she told the court during the online hearing. “That’s why it’s exempt from rulemaking for the most part, right? So, this is an innocuous instruction. The plaintiffs haven’t really described how this harms their interests in any way.”

The Supreme Court is expected to decide quickly so polling place rules are ready in time for the August primaries and the November general election.

The court has a slim Democratic majority with four justices nominated at Democratic state party conventions. There are three justices who were nominated at GOP state party conventions.