A state judge has blocked rules for Secretary of State Jocelyn Benson’s office handling election challengers, finding a May 2022 election handbook from Benson’s office contained rules that should have gone through the process regular rule-making.
Swartzle ordered Benson’s office to either rescind the May 2022 manual in its entirety or amend specific sections he identified as being out of step with Michigan election law and the Administrative Procedures Act.
Benson’s office said the department would appeal Judge Brock Swartzle’s decision of the Court of Claims. His order comes after multiple presidential candidates, two legislative candidates, and Republican parties in the state and nation challenged the rules in the May 2022 playbook as violating Michigan election law and circumventing the drafting process. rules.
“A department in the executive branch cannot do by instructions what it must do by enacted rule,” Swartzle wrote in Thursday’s order. “This simple legal maxim does most of the work in resolving these three consolidated cases.”
The Michigan Office of Elections has consistently provided guidance to clerks and attendees to ensure “legal compliance, transparency, and equal treatment for all voters,” said Jake Rollow, spokesman for Benson’s office. The May 2022 playbook was no different, he said.
“We will appeal this decision to give all voters, clerks, election workers and election candidates the certainty of knowing how to maintain peace and order in all polling places that state law requires and that every voter expects and deserves,” Rollow said.
The Republican Party of Michigan celebrated the victory in a statement Thursday, calling it a victory for “election integrity and the rule of law.”
“Our goal as a party remains the same: We want to make voting easier and harder to cheat and we won’t take our eyes off the ball,” Michigan GOP chairman Ron Weiser said.
Parts of the manual that are merely “instructional” are not binding and therefore do not have to go through the rule-making process, Swartzle said. But other areas of the playbook where Benson issued binding rules should have gone through the rule-making process detailed in the Administrative Procedures Act, Swartzle said.
“Under the APA, only a department’s ‘rule’, promulgated by that department through the crucible of public notice and comment rulemaking, has the force and effect of law,” wrote Swartzle. “Any other statement by a department does not have the force of law unless expressly authorized by our legislature.”
Swartzle focused on specific rules in the handbook that prohibited personal electronic devices for people working at absentee voter counting commission facilities; created new uniform accreditation forms for challengers; and clarified whether political parties could nominate challengers on Election Day, as permitted by law. Those rules go beyond Michigan election law, he said.
The Postal Vote Counting Offices Act, Swartzle wrote, prohibits “a challenger from disclosing information relating to the processing of ballots before the close of the polls.” But, he said, “this does not categorically prohibit the possession of electronic devices” in the meter board installation.
Swartzle also looked at rules in the handbook that required challengers to communicate with election inspectors only through a designated “liaison officer” and limited the types of challenges recorded in a poll book to exclude an “inadmissible challenge.” “.
But the law does not allow any of these restrictions, Swartzle said.
“The Election Inspector has no discretion not to register a so-called ‘inadmissible challenge’ to a person’s right to vote,” Swartzle wrote. “…Even if the challenge is found to be without merit in law or in fact, if the challenge is made, it must be recorded.”
Swartzle’s decision comes after a separate Court of Claims judge in March 2021 ruled that absentee voter signing guidelines issued by the Elections Office ahead of the November 2020 election should also have gone through the process of rulemaking, a decision that Benson did not appeal.
Benson has since been working with the Legislature to find common ground on rules for verifying signatures, which are unclear in state law. But Benson maintained that the advice she gave officially in 2020 had been given informally for years before the clerks put it down.