Michigan Secretary of State Becomes a Six-Time Loser in Election Administration Lawsuits

Detroit City Clerk Janice Winfrey (L) and Secretary of the State of Michigan Jocelyn Benson speak to the press at the TCF Center in Detroit, Mi. on Nov. 3, 2020. Elaine Cromie/Getty Images

 Michigan’s Democrat Secretary of State Jocelyn Benson was recently handed her sixth loss in court over her illegal election administration practices.

Her latest defeat came in the Michigan Court of Appeals in a 3-0 decision handed down on Oct. 19, 2023.

At issue was an Oct. 20, 2022, ruling in which the Michigan Court of Claims found sections of Ms. Benson’s May 2022 handbook dealing with the appointment, rights, and duties of poll watchers and poll challengers to be in violation of Michigan law.

Illegal Directives to Stymie Poll Challengers

According to election integrity activist Patrick Colbeck, all of the illegal portions of the manual unduly restricted the functions of poll challengers, making it harder for them to do their jobs.

Court of Claims Judge Brock Swartzle gave Ms. Benson the option of rescinding the entire manual; revising the portions of the manual identified by the court as illegal; or revising a previously composed 2020 manual to bring it into compliance with state law.

The court rejected the argument of Ms. Benson’s legal team that the order to revise the manual and then inform local election officials of the changes a mere two weeks before the 2022 midterm elections would present an “onerous” burden.

In an effort to better inform local election officials of what the law actually says, the plaintiffs asked the court to mandate that the entire language of the two Michigan statutes covering the rights of poll watchers and poll challengers be included in the revised manual. Their request was denied.

SOS Cannot ‘Create’ Mandates

Judge Swartzle also wrote in his order that the SOS manual is “merely instructive” and does not and cannot independently create any new mandatory requirement, with one exception that was irrelevant to the case.

Patrick Colbeck, a former state senator, an aerospace engineer, and a poll challenger, sits down for an interview in Detroit, Mich., on Nov. 27, 2020. Bowen Xiao/The Epoch Times

He added that the defendants had acknowledged that the manual “does not have the force and effect of law.

“Moreover, the Michigan Election Law does not provide for any unpromulgated, instructional guidance issued by the Secretary of State is ‘binding’ on anyone,” wrote Judge Swartzle.

Disagreeing with the lower court’s decision, Ms. Benson appealed the case only to have her appeal rejected. That loss and her loss in the lower court account for two of her six legal defeats.

The Michigan Secretary of State’s office did not respond to a request for comment.

Democrat Determination

According to Mr. Colbeck, the Democrat majority in the state House of Representatives has introduced legislation to change the laws in order to make legal Ms. Benson’s unlawful policies restricting the activities of poll watchers as outlined in her May 2022 manual.

Go Easy on Signature Verification

A third legal loss occurred on March 9, 2021, when Court of Claims Judge Christopher Murray ruled against Ms. Benson regarding her guidance relaxing the standards for signature verification in the 2020 presidential election.

Judge Murray wrote in his order that the reason for his ruling was “because the guidance issued by the Secretary of State on October 6, 2020, with respect to signature matching standards was issued in violation of the Administrative Procedures Act.”

Mr. Colbeck said of Ms. Benson’s illegal conduct, “In an election decided by 154,188 votes, up to 3,416,172 ballots across the state were counted without any rigor applied to confirm the identity of the individual casting the vote.”

Poll Challengers Kept at a Distance

A fourth courtroom loss for Ms. Benson happened on Oct. 29, 2020, when Court of Claims Judge Cynthia Stephens issued a preliminary injunction against what the court deemed the unreasonably restrictive poll challenger directive issued by Ms. Benson imposing a six-foot distance maintenance requirement between persons working in ballot counting rooms.

Judge Stephens ordered Ms. Benson to expeditiously rewrite her directive to allow for poll challengers to temporarily encroach upon the six-foot separation in order to be able to do their jobs.

Six-foot social distancing in an absentee ballot counting room effectively negates a poll challenger’s ability to see the details of a ballot and thereby violates the intent of the state law authorizing the process.

The court provided Ms. Benson with its own draft of the mandated rewrite that reads in part, “Challengers may stand in closer proximity to election workers to have a challenge heard, observe the poll book, or perform other tasks established under law provided that these close personal interactions are as brief as reasonably possible.”

Poll workers board up windows so ballot challengers can't see into the ballot counting area at the TCF Center where ballots are being counted in downtown Detroit, Mich., on Nov. 4, 2020. Seth Herald/AFP via Getty Images

Ms. Benson’s original social distancing guidelines contributed to the controversy and chaos that ensued at Detroit’s central absentee vote processing center in the early morning hours of Nov. 4, 2020.

As the absent ballots were still being received and counted, Republican poll challengers were ejected from the room by security personnel for purported violations of the defunct social distancing directive, and construction paper was taped to the windows to keep them from looking in.

A Bureaucratic Overreach

Legal loss number five for Ms. Benson came on Oct. 19, 2020 when U.S. District Court Judge Paul Maloney ordered her to revise her guidance regarding the receipt and counting of absentee ballots so as to make it compliant with state law.

The defeat resulted from a lawsuit filed on Sept. 29, 2020, against Ms. Benson by a pair of former Republican secretaries of state, Ruth Johnson and Terri Lynn Land, along with voter Marian Sheridan, alleging her guidance was illegal.

The 19-page complaint reads in pertinent part:

“The Constitution delegates to Congress the power to set the ‘Times’ of presidential elections and to state legislatures the power to set their ‘Manner.’ The Michigan Secretary of State is neither…yet she has acted to rewrite the times and manner of elections in Michigan.”

The complaint called Ms. Benson’s policies and procedures “unconstitutional” and said they were “preempted by federal law.”

It said that the Michigan legislature has established a “bright-line deadline of 8 p.m. on November 3, 2020—the Election Day Congress set by law—for mail-in ballots to arrive at polling places. Ballots that fail to meet this deadline are not to be counted.

“The Secretary, however, has acted to move that deadline by fourteen days…The Secretary has no such authority.

“The policy to abandon the Legislature’s role in establishing the time and manner of elections threatens the integrity of the upcoming election (and) will create uncertainty and delay over Michigan’s ability to certify its results, and casts substantial doubt whether the United States Congress will even accept the results of the popular vote in Michigan,” the complaint said.

Judge Maloney agreed with the plaintiffs and ordered Ms. Benson to bring her guidance into compliance with the law.

The Right to Bear Arms

Defeat number six for Ms. Benson came when she and Michigan Attorney General Dana Nessel, a Democrat, and the Director of the Michigan State Police, Joe Gasper, issued a directive to prevent lawfully licensed Michigan residents from carrying a gun at the polling place.

On Oct. 27, 2020, Michigan Court of Claims Judge Christopher Murray issued an injunction against the directive in a lawsuit brought by a Michigan voter and gun owner.

“Individually, each of these cases would be concerning, but collectively they indicate a pattern of lawlessness that needs to be addressed if we are to have any confidence in the conduct of our elections under her (Ms. Benson’s) guidance,” said Mr. Colbeck.