On Oct 10, we reported about five individuals in Michigan who sued Michigan’s dishonest Secretary of State Jocelyn Benson, and MI Director of Elections Jonathan Brater over their sudden creation of a new set of rules titled “The Appointments, Rights, and Duties of Poll Challengers and Election Workers,” only months before Michigan’s August 2, 2022, Primary Election.
The lawsuit, which was filed by Attorney Ann Howard in the MI Court of Claims, was joined together with a similar lawsuit filed by the RNC. The suit asked for an emergency injunction to compel MI SOS Jocelyn Benson and Jonathan Brater to rescind the changes to their newly created “guidance” for poll challengers that was first implemented in the August 2022 Primary Election.
On the day of the Primary Election in Detroit, under the new guidance of MI Soros-funded SOS Jocelyn Benson and Jonathan Brater, an unknown third-party security group by the name of “ICU,” threw Braden Giacobazzi, an Independent poll challenger out of the former TCF Center (now the Huntington Place) for asking too many (legitimate) questions about ballots and the processes that he claims were not being followed. Braden’s story can be found here.
The new set of rules by Jocelyn Benson, the Soros-funded MI Democrat SOS, essentially ties the hands of poll challengers who have a constitutional right to examine the absentee ballot counting process. It is just one more example of how Benson consistently pushes the envelope and goes outside of the bounds of her job description by restricting members of the Republican Party, who she treats like an enemy, from overseeing the absentee ballot counting process.
Last week, MI Court of Claims Judge Brock Swartzle accepted the request of two out-of-state lawyers from Marc Elias’ Law Firm lawyers who asked to join the suit on behalf of the Defendants Jocelyn Benson and Jonathan Brater. It’s curious why Hillary Clinton’s favorite lawyer felt obligated to get involved in a lawsuit in Michigan that essentially tied the hands of election poll challengers and prevented them from having a direct conversation or filing an objection with election officials at the counting board where they’re observing.
Today, Judge Swarzle offered his opinion. In his opinion, the MI Court of Claims judge wrote that MI SOS Benson and Jonathan Brater “have authority to issue instructional guidance, but they do not have the authority to issue rules with the force and effect of law, apart from those promulgated through notice-and-comment rulemaking. To the extent that defendants have issued an unpromulgated rule in the guise of an “instruction,” they have exceeded their lawful authority under the Michigan Election Law and APA.”
In his ruling, Judge Swartzle reminded Benson of her job description as it relates to MI Election Law:
MCL 168.31(1)(c) adds that the Secretary of State shall [p]ublish and furnish for the use in each election precinct before each state primary and election a manual of instructions that includes specific instructions on assisting voters in casting their ballots,directions on the location of voting stations in polling places,procedures and forms for processing challenges, and procedures on prohibiting campaigning in the polling places as prescribed in this act.
Michigan SOS Jocelyn Benson was also found to have overstepped her authority in several ways. Here is a list of five decisions Judge Swarzle made in favor of the Plaintiffs:
#1: MI SOS Jocelyn Benson cannot prevent poll challengers from bringing their cell phones into a room where absentee ballots are being counted
The Court is cognizant of, and frankly shares, defendants’ concerns about the security of absentee-ballot counting. But there is nothing in the Michigan Election Law that precludes a challenger from merely possessing an electronic device in the AVCB facility. Nor have defendants promulgated a rule through public notice-and-comment rulemaking that might have given them the lawful authority to impose such a ban. Prohibiting electronic devices in the AVCB facility might be a good idea, but before a good idea can become law or have legal force and effect, that idea must be embodied within an enacted statute or promulgated rule.
#2. Election workers, by law, must permit and record ANY and ALL objections made by poll challengers related to absentee ballots.
#3. Election poll challengers cannot be told they are unable to address concerns directly with election inspectors or be told they must make challenges or objections related to ballots or the processing of ballots with Jocelyn Benson’s made-up “Challenger Liaisons”
From the May 2022 Manual:
“Challengers must not communicate with election inspectors other than the challenger liaison or the challenger liaison’s designee unless otherwise instructed by the challenger liaison or a member of the clerk’s staff.”
The manual adds:
“Challengers must not communicate with election inspectors who are not the challenger liaison unless otherwise instructed by the challenger liaison or a member of the clerk’s staff.”
If the challenger violates these provisions, the challenger is subject to a warning, and repeated violations may lead to ejection of the challenger.
Plaintiffs argue that the manual’s limitation on which inspectors the challengers may interact with violates MCL 168.733(1)(e), which provides that a challenger may bring certain issues to “an election inspector’s attention” without restriction to a particular inspector. The authority to designate a “challenger liaison” is absent from the Michigan Election Law–in fact, the very label appears nowhere in statute.
Defendants have not presented this Court with any statute, common law, case law, or promulgated rule that gives them the authority to restrict with which election inspector a challenger can communicate.
The judge appeared to admonish Benson over her made-up role of “challenger liaison”:
Our Legislature provided a challenger the right to communicate to “an” election inspector, and defendants cannot artificially restrict that to a designated inspector. Whether it makes sense to have such a liaison is one thing; it is another thing entirely to require, at the risk of being ejected, a challenger to speak to only the designated liaison.
This provision of the May 2022 Manual goes well beyond what is provided in law and impermissibly restricts a challenger’s ability to bring certain issues to any inspector’s attention.
Accordingly, the manual must be revised to make clear that a challenger need not bring an issue to the attention of only a liaison challenger, but instead can bring such issue to the attention of any election inspector at the applicable location.
#4. Benson does not have the authority, through her new guidance, to have poll challengers thrown out of the counting facility for asking too many questions.
#5. Election poll challengers can be credentialed on Election Day and are not required to fill out a special form created by the SOS office.
The judge explains:
Our Legislature has set forth the exhaustive list of evidence for validating a credential, and if a purported credential includes the three items in MCL 168.732, then that purported credential fully complies with the Michigan Election Law–nothing more is required.
Judge Swarzle ruled that Benson and Brater’s new “guidance” for poll challengers is simply a list of suggestions and that she has no legal authority to change election law or the rules set forth by the MI legislature regarding poll challengers.
Instead of correcting her new “guidance” that strips poll challengers of their ability to do their job, Benson is now asking the courts to reverse the decision and give her the ability to unlawfully prevent volunteer poll challengers from watching the absentee ballot counting process.
Patrice Johnson of PIME Pure Integrity Michigan Elections and guest writer for 100 Percent Fed Up, explains:
Frivolous. Riding out the clock. Obstruction—These words come to mind as a person reads the appeal filed Friday, Oct. 21, by Michigan’s Secretary of State Jocelyn Benson and Jonathan Brater, Bureau of Elections director. Michigan’s Executive Branch lost a case, a big one. Now Benson and Brater are claiming they should have been told sooner that they were breaking the law. They don’t have time to fix their misinformation, they say, and notify clerks in time for the November 8 election, more than two weeks away.
The protests stretch the bounds of credulity, considering that the SOS/BOE’s defective elections manual supplanted an accurate one published by the secretary’s predecessor. Even if ignorance of the law were an excuse, which it is not, that argument won’t wash either Benson holds a law degree and has taught law, plus her office employs hundreds of lawyers. They-should-have-told-us-sooner borders on ludicrous, coming from a Soros-backed secretary who issued rapid-fire, 50-page instructional changes to elections clerks into the final days leading up to the 2020 election.
On Thursday, Oct. 20, Michigan Court of Claims Judge Brock Swartzle ordered Benson to either “(1) rescind the May 2022 [Election] Manual in its entirety; (2) revise the May 2022 Manual to comply with this Opinion and Order or (3) revise an earlier iteration of the manual to comply with this opinion and order.” The ruling came after the judge combined two near-simultaneous court filings, one from the Republican Party and another from citizens Phil O’Halloran, M.D., Bob Cushman, Braden Giacobazzi, Penny Crider, and Ken Crider. Both suits claimed the secretary’s May 2022 elections manual violated the rights of poll challengers and infringed on their ability to ensure the integrity of elections.
The ruling came after the judge combined two near-simultaneous court filings, one from the Republican Party and another from citizens Phil O’Halloran, M.D., Bob Cushman, Braden Giacobazzi, Penny Crider, and Ken Crider. Both suits claimed the secretary’s May 2022 elections manual violated the rights of poll challengers and infringed on their ability to ensure the integrity of elections.
Key provisions of the court ruling include the removal of restrictions upon poll challenger assignments, with whom poll challengers can communicate, the use of electronic devices by poll challengers, and reasserted the need for poll inspectors to record all challenges made by poll challengers.
“This is by no means a heavy administrative burden for an agency with the resources possessed by the office of SOS,” said O’Halloran, a practicing medical doctor and one of the plaintiffs.
“Based upon the judge’s ruling, aren’t there problems with the 2020 written guidance as well?” O’Halloran asked. “Should that be specifically mentioned since [Benson] cannot simply revert back to that previous illegal guidance?”
Pattern of lawbreaking
In light of three previous court rulings against Benson and others settled before going to court, one could argue a disturbing pattern of lawbreaking has emerged.
The Genetski ruling in March 2021 determined that Benson had arbitrarily—translated, illegally—neutered signature matching laws when she told clerks to assume all signatures were valid. Benson’s misinformation violated the Michigan Administrative Procedures Act, the court found.
Then, the Davis Ruling smacked the secretary down for unlawfully restricting the right to open carry of firearms at all polling places.
Third, Michigan House Representative Steve Carra won a settlement from Benson after a court found she broke the law when she mandated poll challengers to stand six feet away from the election inspectors. She had no legal authority to prevent the challengers from performing their jobs, the judge declared.
The Johnson settlement stopped Benson from allowing the acceptance of absentee ballots after 8 p.m. on Election Day.
“It is a sad pattern of behavior rather than an isolated occurrence,” Patrick Colbeck, president of MIGrassroots Alliance, said.
No end in sight
Six days ago, Pure Integrity Michigan Elections lobbed a seven-day warning over SOS Benson’s bow. Her office is currently providing legally unauthorized ‘misinformation’ to election inspectors (paid workers) on 11 distinct issues, PIME claims.
On Oct. 14, a member of the PIME alerted the East Lansing City clerk that she, Benson, the since-resigned MSU president, and Ingham County Clerk Byrum were violating at least three state laws in their opening of satellite, one-stop voting locations on the MSU campus.
“I am worried she will release new guidance that still breaks the law in fun new ways, and we won’t be able to challenge it before November 8 since the judge ruled only on the specific ways she broke the law in the primary,” O’Halloran said.
Braden Giacobazzi, on the leadership team of the Election Integrity Force, expressed similar concern. “There is no excuse for not having guidance after four years in office, especially since she could technically just copy and paste the existing law and be basically done with the guidance if she wanted to.”
In regard to the secretary’s expression of lack of time, Giacobazzi said, “She could simply use the law as guidance rather than write another corrupted manual herself, which she is prone to do. There is no excuse for not having legally faithful guidance four years into office. Just cite Michigan law and be done with it.” EIF and Michigan Citizens for Election Integrity (MC4EI) offer poll challenger training.
Plaintiff Penny Crider is turning her focus to alert law enforcement to the judge’s changes. “It would be wise to put something together for the supervisors that are on the floor at TCF and the other locations.” The TCF Center in Detroit recently changed its name to Huntington Place.
Crider indicated that plans are underway to set up a website, so people can readily find the court orders and to notify the Constitutional Sheriffs and Peace Officers Association and the Police Officers Association of Michigan.
Patrice Johnson is chair of Michigan Fair Elections and Pure Integrity Michigan Elections. Johnson has founded four successful technology companies and holds a master’s degree in English Literature from Michigan State University.