By Ben Solis
Gongwer News Service
Michigan Secretary of State Jocelyn Benson had authority under Michigan Election Law to make changes to 2022 poll watcher guidance challenged by state Republicans, and they didn't have to be promulgated as rules through the Administrative Procedures Act, a split Michigan Supreme Court ruled Wednesday.
That means the court challenged components of poll watcher guidance published by the Bureau of Elections in 2022 were lawful, with some caveats.
In an opinion written by Justice Kyra Harris Bolden, the court's liberal majority found the three of the four components challenged in O'Halloran v. Benson and DeVisser v. Benson (MSC Docket Nos. 166424-25) were indeed lawful, including a requirement for a uniform form for their credentials, which fell under an exception to the rulemaking statute.
A challenger liaison provision, however, was found lawful except to the extent that it required a challenger at an absentee voter ballot processing facility to raise issues listed in statute with a challenger liaison – who is also not an election inspector at the facility. That said, Bolden did not consider that aspect a rule that also needed to be promulgated through the APA.
The ruling – joined by Justice Richard Bernstein, Justice Megan Cavanagh and Justice Elizabeth Welch – also found that the designation of challenges as either permissible or impermissible were lawful under election law, except for a portion providing that the challenger liaison may deem the reason for the challenger's belief as impermissible, and therefore decline to record the challenge, if the reason bore no relation to criteria cited by a challenger.
That applied to circumstances where the provided reason was inapplicable or incorrect.
As before, Bolden said that portion also fell under exceptions to the rulemaking statute and did not have to go through the rulemaking process.
Chief Justice Elizabeth Clement and Justice Brian Zahra both wrote dissenting opinions, with Justice David Viviano joining the latter's opinion.
The ruling upheld some of the Court of Claims and Court of Appeals holding that the components were lawful, but reverses their holdings that they should have gone through the rulemaking process.
The Court of Appeals said while the state has broad authority to issue non-rule instructions to election workers, it does not have the same authority on challengers.
Bolden said when statute does not require rulemaking for its interpretation, an agency may choose to issue "'interpretive rules,' which would fall under the MCL 24.207(h) rulemaking exception as policy statements that give guidance but do not have the force and effect of law."
Citing its recent decision in Michigan Farm Bureau v. Department of Environment, Great Lakes and Energy, Bolden wrote that an interpretative statement "in itself lacks the force and effect of law because it is the underlying statute that determines how an entity must act, i.e., that alters the rights or
imposes obligations."
That was true of the required form, Bolden wrote.
"Under the APA, a formal rule 'does not include' a 'form with instructions … that in itself does not have the force and effect of law but is merely explanatory.' This is a form that instructs challengers regarding how to submit the required evidence to be credentialed as a challenger," Bolden wrote.
"Moreover, this manual provision lacks the 'force and effect of law' because, as discussed above, it adds no substantive requirement in order to be credentialed. If mandating the use of a form that an agency is explicitly authorized to create is all that is required to convert something into a rule, then the 'form with instructions' exception under MCL 24.207(h) would be nugatory. We decline to accept such an interpretation."
On the challenger liaison, Bolden wrote that while the manual was inconsistent with election law on that matter, the permissible components of the section were not rules, either, and didn't need to be put forward for rulemaking approval.
Clement and Zahra, in dissent, agreed that the challenged provisions in the 2022 election manual were invalid because they conflict with election law.
"Specifically, I agree with Justice Zahra that the manual's requirement of a uniform challenger-credential form conflicts with the provision in MCL 168.732 that possessing a valid, signed authority is 'sufficient evidence of the right of such challengers to be present inside the room where the ballot box is kept,'" Clement wrote. "And the manual's establishment of a single challenger liaison to whom every challenger must direct their challenges conflicts with the direction in MCL 168.733(1)(e) that a challenger may raise specified issues with 'an election inspector' and is also inconsistent with the goals of party parity expressed elsewhere in the Michigan Election Law."
Clement also agreed with Zahra that the manual's direction that election inspectors record only what the manual identifies as permissible challenges conflicts with MCL 168.727(2)(b), "which directs an election inspector to immediately record any challenge made under MCL 168.727(1); and the manual's provision that "election challengers may be removed for repeated impermissible challenges conflicts with a challenger's right to be present, MCL 168.732 (unless that conduct rises to the level of disorderly conduct, MCL 168.733(3))."
Zahra added that "to date, the secretary of state has not sought to promulgate the 2022 manual revisions as a formal administrative rule under the APA."
"Rather, the secretary insists that the manual is not a rule that requires public discussion because it is simply an interpretive statement that does not have the force and effect of law but is merely explanatory," Zahra wrote. "The secretary's position, although curiously sanctioned by a majority of this court, is difficult to comprehend. If the manual revisions are merely explanatory, challengers who possess a credential meeting the statutory requirements of MCL 168.7328 would not be turned away by a clerk when they arrive at their assigned precinct."
Zahra went a step further to discuss whether the provisions indeed had the force of law, a discussion that Clement did not join.
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