October 31, 2020

Michigan Court of Claims Judge Christopher Murray recently issued a preliminary injunction against Michigan Secretary of State Jocelyn Benson’s directive banning the open carry of firearms at polling places on Election Day.  Secretary of State Benson, also acting as the state’s chief elections officer, issued the directive banning open carry at polling places on October 16th pursuant to an exception to the administrative rule making process, allowing officers of the executive branch the option of issuing directives without going through the rules-making process.
Judge Murray found that the exception to the rule-making process can’t apply when the directive conflicts with state law.  He noted the Legislature has specified places where open carry of firearms is not permitted, and polling places are not among them, unless the polling place happens to be a school or a church where church leaders have not given the gun owner permission. Murray said Benson’s directive was a rule that should have been promulgated under the Administrative Procedures Act, allowing for public input and legislative scrutiny.  “The secretary just didn’t do this in the right way and at the right time,” Murray said during the hearing.  If she wanted to ban the open carry of firearms at or around polling places, “the secretary should have done this months ago.”
Assistant Attorney General Heather Meingast argued the Legislature gave Benson the option of issuing directives without going through the rules-making process.  Meingast called it “the permissive statutory power exception.”  Judge Murray acknowledged the exception existed, but said it was misapplied in this instance.  Benson and Attorney General Dana Nessel, both Democrats, quickly issued statements saying they will appeal the decision.  “As the state’s chief elections officer, I have the sworn duty to protect every voter and their right to cast the ballot free from intimidation and harassment,” Benson said.  “I will continue to protect that right in Michigan.”
The Michigan Court of Appeals issued an order on Thursday, rejecting Secretary of State Jocelyn Benson’s appeal of the ruling that struck down her directive.  In declining to hear the appeal, the court said that although concerns about voter intimidation involving firearms are valid, the state already has laws to handle that.  Michigan Attorney General Dana Nessel filed an emergency appeal with the Michigan Supreme Court Thursday night. 
We will continue to follow this dispute and provide updates as more information becomes available.   

If you have any questions concerning this lawsuit or any firearms related litigation, please contact John F. Renzulli or Christopher Renzulli.