Michigan gun groups sue Benson to open carry at election polling sites

Update: Judge: Michigan can’t ban open carry guns on Election Day

LANSING — Three gun rights groups sued Michigan Secretary of State Jocelyn Benson on Thursday, demanding the right to openly carry firearms at or near polling places on Election Day. 

Benson moved to ban the practice last week, declaring that the presence of firearms at voter precincts “may cause disruption, fear or intimidation for voters,” election workers or others.

Her guidance would bar openly carried firearms within 100 feet of polling places on Nov. 3. Those with a concealed carry license can carry guns, except in buildings that already ban concealed carry, such as schools or churches.

But the directive unfairly punishes residents who want “to exercise both their 2nd Amendment right to self-protection and their fundamental right to vote,” according to the lawsuit, which asks the Michigan Court of Claims to immediately prohibit the state, state police, other officers or prosecutors from promoting or enforcing the ban. 

Attorneys are seeking an injunction to suspend Benson’s directive and asking for expedited review of that request given the upcoming election, which is less than two weeks away. Ultimately, they want the court to declare the open carry ban “void as a matter of law.”

Benson overstepped her authority, according to the complaint. It also seeks to invalidate a Michigan law that gives election officials “full authority to maintain peace, regularity and order” at polling places, which attorneys called an unconstitutional delegation of power by the Legislature.  

Asked about the lawsuit, Secretary of State spokesperson Jake Rollow called Benson’s rule a “narrowly tailored directive” that “does not infringe upon the right to bear arms.”

“The Supreme Court has repeatedly found that the right to vote is foundational to our democratic society and preservative of our other basic rights,” he said. The open carry ban “simply protects voters and election workers by providing much-needed clarity on the existing state and federal laws that prohibit voter intimidation, harassment and coercion.”

But Benson’s directive has faced pushback. Some Republicans and local law enforcement groups have questioned her authority to issue an open carry ban, and some sheriffs have already said they won’t enforce it. 

• Benson defends Michigan ban on guns at polls, says state police will enforce

• Michigan voting 2020: masks, guns, ID, straight ticket, what you should know

Michigan State Police will enforce the rule where locals won’t, Benson said Wednesday, noting she crafted the rule with Attorney General Dana Nessel and is confident it will hold up in court. 

Her legal authority comes from state laws against voter intimidation as well as state and U.S. constitutional protections of the right to vote, she claimed.

Tom Lambert, a past president and current board member for Open Carry Inc., is a named plaintiff in the suit. He “desires to openly carry a lawfully-possessed pistol in a holster at and near his polling place on Election Day,” according to the complaint. 

The gun rights groups suing Benson, Nessel and Michigan State Police Director Joe Gasper “represent many thousands of members who choose to openly carry firearms into polling places on Election Day as a means of pronouncing their viewpoint on the Second Amendment,” attorneys said. 

The suit claims it is “common practice” for open carry advocates who take their weapons to the polls on Election Day to affix an “I voted” sticker to their holster, and then take a photo to post on social media. 

That’s a “form of political expression and viewpoint-based speech” that is also protected by the Constitution, attorneys argued. 

Nessel provided guidance to Benson on the rule, and her office has said it is “confident” in that advice. The ACLU of Michigan, which promotes civil rights, has also backed Benson.

“The Supreme Court has long recognized that polling places should be an ‘island of calm,’ free from distraction and interference,” ACLU of Michigan Executive Director Dave Noble said in a statement last week. 

“Therefore, just as people are not allowed to carry signs or pass out political literature within 100 feet of polling places, people should not be allowed to openly carry guns.”