Jocelyn Benson loses in court for third time over her voting rules

• Secretary of State didn’t follow law in creating rules that limited poll challengers, court rules
• The rules, which include a ban on cell phones, will remain in place pending an appeal
• Jocelyn Benson has lost two other court cases over other efforts to govern behavior at polls

The Michigan Court of Appeals last week ruled that Secretary of State Jocelyn Benson exceeded her authority last year when she put new restrictions on poll challengers, the third time courts have rebuffed the Democrat for creating rules without going through the proper process.

The panel of three judges on Thursday upheld a lower court ruling from a year ago in a case brought by Republicans, finding that the Michigan Department of State “must follow the requirements of the Michigan Administrative Procedure Act and that under the state law a department can set new rules only after it has gone through the public notice and comment process.”

The Secretary of State’s Office said it plans to appeal to the Michigan Supreme Court. The current rules for poll watchers and challengers will remain in effect during the appeals process, spokesperson Angela Benander said. 

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Republicans previously had successfully challenged Benson’s rules in 2020 on the standard for approving absentee ballot signatures and a ban on open carry of firearms near polling places.

Benson’s rules in May 2022 required poll watchers appointed by political parties to obtain credentials and barred them from carrying phones or speaking with elections inspectors.

Changes in rules by a state agency are guided by the Michigan Administrative Procedures Act, which requires the rules are submitted for public comment. The Legislature’s bipartisan Joint Committee on Administrative Rules governs this process of rule-making by holding hearings on the proposed rules.

Benson and Bureau of Elections Director Jonathan Brater had asserted in the Court of Claims last year that the manual did not need to go through that process because Michigan election law grants the secretary of state “broad authority” to issue instructions.

The appellate judges ruled last week that while Benson’s authority means she can issue non-rule instructions to election staff, she does not have the same authority over poll challengers and poll watchers.

“Defendants may issue mere instructions that are binding on election workers who operate as defendants’ employees and subordinates, but regulations targeting election challengers or poll watchers reach beyond defendants’ general supervisory scope and must be promulgated as APA rules,” the panel wrote.

The case was originally brought by a group of Republican activists, including some who had previously served as poll challengers — Philip O’Halloran, Robert Cushman, and Braden Giacobazzi — and two unsuccessful legislative candidates in 2022, Penny Crider and Kenneth Crider. 

The case was combined with a lawsuit brought days later by the Michigan Republican Party and the Republican National Committee. 

Two other recent efforts by Benson to set new rules in elections were challenged by Republicans and blocked by Michigan courts for flouting the state’s formal rule-making process.

In October 2020, the Court of Claims dealt Benson a defeat when she attempted to ban open carry of guns at polling places and found she had not followed the Administrative Procedures Act. The Court of Appeals immediately upheld that decision.

In another case five months later, the Court of Claims ruled against Benson, saying she did not take the correct procedural steps when instructing clerks to assume that absentee ballots signatures were accurate.

Jonathan Oosting contributed