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Michigan Supreme Court lets poll challenger restrictions remain for November election

Polling place.
Stephen Velasco

Election officials can continue to prohibit poll watchers from bringing cell phones into absentee ballot counting rooms on Election Day. They can also block political parties from certifying new poll challengers on Election Day.

That’s the result of a Michigan Supreme Court order Thursday that delays a lower court ruling from taking effect.

In September, the Michigan Republican Party and others sued over the Michigan Secretary of State’s guidance on handling poll watchers.

In October, the Court of Claims ruled against the Secretary of State. The court reasoned the state did not follow the correct administrative rulemaking process outlined in statute when developing and adopting the policy.

In a concurring opinion for issuing a stay of that ruling — blocking it from taking effect so the parties have time to file appeals — Justice Elizabeth Welch questioned the timing of the lawsuit since the guidance had been available since May and was already used in the state’s August primary. She seemed to agree with the Secretary of State’s argument that changing the guidance now would result in confusion for election workers and voters.

“The requested stay would ensure that local election workers can rely on the 2022 manual in the November 2022 general election while the courts work through the complex and jurisprudentially significant legal issues presented in these cases,” Welch wrote in a ruling for O’Halloran v. Secretary of State. That lawsuit is similar to the one filed by Michigan Republicans, and the court released its orders in both cases simultaneously.

After Thursday’s order, Secretary of State Jocelyn Benson, who is running for re-election, released a statement celebrating the stay.

"In a moment when we often see lawsuits filed not to enforce the law but instead to cause confusion and further partisan strategies, I am grateful to the Michigan Supreme Court for providing clarity to all voters and election officials that the challenger guidelines and protocols used in previous elections will remain in effect for next week's general election,” Benson said.

Meanwhile, Republicans decried the decision as harmful to election transparency. The Michigan Republican Party agreed with dissenting Justice David Viviano, who argued the case didn’t rise to the legal standards necessary for issuing a stay of the lower court’s ruling.

“Justice Viviano got it right that Secretary Benson’s new rules limit the ability of election observers to challenge the integrity of the election and make the vote-counting process less transparent," party spokesperson Gustavo Portela said in a statement. “The Michigan GOP strongly disagrees and will continue to fight for a transparent and honest election process. It should be easy to vote and hard to cheat.”

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