By Patrice Johnson | September 3, 2024
The Michigan Secretary of State sent shock waves throughout Michigan and across the nation on August 27 when she stared into the camera and threatened local canvass boards to either certify the upcoming November 5 election...or else. “If someone were to violate the law and not certify the election at the local level, we will come for you,” Secretary Jocelyn Benson warned.
The chilling statement, delivered on X (formerly Twitter), prompted inquiring minds to question whether the video represented a momentary lapse in Benson’s judgment, or whether it was a calculated tactic, designed to intimidate.
https://www.youtube.com/watch?v=Jb59sk-UmAw&t=225s (Go to ~3:46)
Bryce Metcalfe, a member of the Crawford County Board of Canvassers, expressed his concerns to Michigan Fair Elections. “The MI SOS has recently posted a video that threatens me if I don't certify the November elections. This violates Michigan election laws. I will honestly canvass the November election. However, if I encounter problems with the vote count that cannot be corrected, then I will not vote to certify the election.”
Metcalfe cited a number of Michigan laws prohbiting Benson's intimidating behavior and in support of his responsibility to perform his duty:
MCL 168.931b Prohibition on intimidation of or interference with election workers; violation; penalties; application to constitutionally protected activities; definitions.(1) An individual who intimidates an election official because of the election official's status as an election official, with the specific intent of interfering with the performance of that election official's election-related duties, is guilty of a crime as provided under subsection (3).
MCL 168.873 Recount; misconduct of employees, felony. Sec. 873 Any officer, assistant, clerk or employee engaged in the conduct of a recount who shall wilfully commit any act which shall interfere with a fair and impartial recount of the votes cast for a contested office, amendment or proposition shall be deemed guilty of a felony and subject to the penalties thereof.
MCL 168.887 Recount of votes; misconduct of employees, felony. Any officer, assistant, clerk or employee engaged in the conduct of a recount who shall wilfully commit any act which shall interfere with a fair and impartial recount of the votes cast for a contested office, amendment or proposition shall be deemed guilty of a felony and subject to penalties thereof.
Considering that judges have found agains SOS Benson in numerous separate election law cases, one has to wonder what laws the Secretary thinks she is upholding when she makes such threats:
RNC v Benson Case No.24- 000041 Court of Claims. On July 30, 2024, Judge Christopher Yates of the Court of Claims ruled, “The ‘initial presumption”’ of validity in signature verification of absentee-ballot applications and envelopes mandated by the December 2023 guidance manual issued by Defendants is incompatible with the Constitution and laws of the state of Michigan, and (b) the catch line referring to an ‘initial presumption of validity’ in R 168.22 of the Michigan Administrative Code is incompatible with the Constitution and laws fo the state of Michigan.”
Genetski v Benson. Case No. 20-000216-MM;
"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 Standards Act," per Judge Christopher Murray, Court of Claims, Mar. 9, 2021.
Davis v Benson. Case No. 20-000207-MZ October 27, 2020, Judge Christopher Murray issued an injunction against the SOS's directive to ban the open carry of firearms in polling places.
Carra v Benson. Case No. 20-000211-MZ; Judge Cynthia Stephens issued a preliminary injunction against Benson and Brater’s legally unauthorized poll challenger directives.
Johnson v Benson. Civil Action No. 1:20-cv-948; On October 19, 2020, United States District Judge Paul Maloney ordered Benson to revise her guidance to comply with statute regarding the time and manner of election processes.
O’Halloran v Benson. Case No. 22-000162-MZ. On October 20, 2022, Court of Claims Judge Brock Swartzle ordered Benson to revise her poll challenger guidelines to comply with Michigan Election Law.
Perhaps the roots of Benson’s warning may be found in the controversial Proposal 2 of 2022 and its ballot language, now at the center of a legal battle. Voters approved Prop 2-22 to amend the state’s constitution at the urging of millions of out-of-state promotional dollars. Then the new Democrat majority in the legislature, citing the ballot amendment, passed massive bills to change Michigan’s election processes, and Governor Whitmer (D) signed them into law.
Lawsuit and Legislative Maneuvering
Eleven state legislators filed a federal lawsuit on Sept 28, 2023, arguing that the changes to the state constitution’s election laws were pushed through using an unconstitutional process that bypassed the state legislature.
Article 1 Section 4 of the U.S. Constitution, prescribes the determination of the “Times, Places and Manner of holding Elections” to state senators and Representatives. Attorney Erick Kaardal of Mohrman, Kaardal & Erickson, P.A. is representing the case, and Michigan Fair Elections is sponsoring it.
Fast forward to 2024: The Michigan Legislature passed Senate Bill 603, introducing stringent limitations on canvass boards. SB 603 requires that election results must be certified based solely on official records. Additionally, the bill prohibits ballot recounts from investigating suspected fraud, and it goes so far as to forbid the use of the word, fraud. The law doubles the costs of paying for a recount and gives only specific stakeholders authority to request a recount. Plus, recount requests have to demonstrate that the election outcome could be overturned, or they will be denied outright.
Governor Gretchen Whitmer (D) signed SB 603 into law, now known as Public Act 74 of 2024. But the law is scheduled to take effect next year, beginning January 1, 2025.
A Preemptive Power Play
Michigan’s leadership seems determined to jump the gun on the official start date, and the Michigan Department of State (MDOS) is using the Administrative Procedures Act to fast-track the implementation of Public Act 74 for this November’s election. This move drew sharp criticism from Republican lawmakers and election integrity groups.
State Senator Jim Runestad (R), a member of the Joint Committee on Administrative Rules (JCAR), voiced his concerns:
“The left is maneuvering to implement a terrible law early, so they can prevent canvassing boards from doing their duty to ensure the integrity of the ballot counts in the upcoming elections.”
Patrick Colbeck, President of the Michigan Grassroots Alliance, expressed his opposition in his 3-minute testimony before a special hearing by the MDOS. “The Michigan Department of State appears to be engaged in the deliberate and repeated abuse of the rulemaking process to subvert the integrity of our elections,”Colbeck warned.
“Our Michigan Constitution requires that all voting rights be liberally construed in favor of voter rights,"Colbeck emphasized, adding, "The proposed rules appear to be biased toward diminishing the rights of voters and local election officials in favor of increased control of elections and election records by the Michigan Department of State.” (Go to ~1.44)
Despite these warnings, the Democrat-led committee voted in favor of the rule change. Language as to the timing for implementing PA 74 was subsequently altered from “effective Jan. 1, 2025,” so the amended law reads, “THIS AMENDED SECTION IS EFFECTIVE 91 DAYS AFTER ADJOURNMENT OF THE 2024 REGULAR SESSION SINE DIE.”
The change moves the foundation of the dispute to the definition of the term “sine die,” which means to adjourn without setting a future date for resumption.
Legal Challenges and the Definition of "Sine Die"
The Republican National Committee (RNC) was quick to respond to the political move. Luke Bunting, Election Integrity Counsel, issued a demand letter on August 7 to Jocelyn Benson, Michigan's Secretary of State:
On behalf of the Republican National Committee (RNC), I am writing to request that you cease any attempt to adopt the proposed administrative ruleset (2024-18 ST; JCAR #24-32) before the upcoming general election on November 5, 2024, or at any other time prior to the effective date of Senate Bill 603.”
Christina Norton, Executive Director of Election Integrity Operations for the RNC, stated, “If the Michigan Bureau of Elections attempts to implement SB 603 before it becomes law, the RNC is prepared to pursue litigation.”
The Michigan Constitution mandates that the legislature adjourn sine die as the final adjournment of a regular session.
However, frequent adjournments reported in 2024 suggest that leadership may try to argue that each small Sine Die 2024 adjournment qualifies as a sine die and therefore paves the way for early implementation of PA 74.
“Good luck with that.” Patrick Colbeck quipped, pointing out the explicit language in the state constitution:
“The Constitution of the State of Michigan of 1963 requires that the Legislature adjourn sine die as the final adjournment each year of a regular session. Adjournment must be at 12:00 noon on a day set by concurrent resolution.”
A Fight for Election Integrity
Colbeck argued that Secretary Benson’s aggressive stance, exemplified in her tweet, “We will come for you,” reflects a strategy to pressure canvasser boards and the public at large into submission.
As Michigan heads toward the November election, the question looms: Will the people of the state submit to government officials’ intimidation tactics, or will they stand firm in defense of the rule of law and election integrity?
What You Can Do
As the November 5 election approaches, it is crucial for citizens to engage in the election process. Consider signing up as an election inspector in Wayne County. Help with MFE’s Soles to Rolls program. Take steps to ensure that the number of voters in your jurisdiction matches the number of counted ballots. No canvass board should certify the results until discrepancies are resolved.
No one can do everything, but everyone can do something.
Patrice Johnson, chairs Michigan Fair Elections (MFE) and Pure Integrity Michigan Elections (PIME). A former teacher, Patrice has founded five successful companies and served as senior executive with a Fortune 100 technology company. In 2017, she authored the book, the Fall and Rise of Tyler Johnson, the basis of a PBS documentary film, Finding Tyler. Questions or comments? Contact patrice@mifairelections.org.
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