O'Halloran v. Sec'y of State

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PHILIP M. O'HALLORAN, M.D., BRADEN GIACOBAZZI, ROBERT CUSHMAN, PENNY CRIDER, and KENNETH CRIDER, Plaintiffs-Appellees, v. SECRETARY OF STATE and DIRECTOR OF THE BUREAU OF ELECTIONS, Defendants-Appellants.

RICHARD DEVISSER, MICHIGAN REPUBLICAN PARTY, and REPUBLICAN NATIONAL COMMITTEE, Plaintiffs-Appellees, v. SECRETARY OF STATE and DIRECTOR OF THE BUREAU OF ELECTIONS, Defendants-Appellants.

Nos. SC 166424, SC 166425

Supreme Court of Michigan

August 28, 2024

Syllabus

Argued on application for leave to appeal June 18, 2024.

Phillip M. O'Halloran, Braden Giacobazzi, and others (collectively, the O'Halloran plaintiffs) (Docket No 166424), and Richard DeVisser and others (collectively, the DeVisser plaintiffs) (Docket No. 166425), filed separate actions in the Court of Claims against the Secretary of State and the Director of the Bureau of Elections, challenging several provisions in a manual titled "The Appointment Rights, and Duties of Election Challengers and Poll Watchers" that the Secretary of State revised in 2022 (the 2022 manual). Beginning with the August 2022 primary election, the 2022 manual provided revised instructions and guidance for election challengers and poll watchers; the O'Halloran plaintiffs and the DeVisser plaintiffs (collectively, plaintiffs) filed these separate actions before the general election in November 2022. Both groups of plaintiffs sought an emergency injunction compelling defendants to rescind the manual and issue new guidance arguing that the challenged provisions conflicted with the Michigan Election Law, MCL 168.1 et seq., or that the provisions constituted rules that had to be promulgated in accordance with the Administrative Procedures Act (APA) MCL 24.201 et seq. The Court of Claims consolidated the cases, and defendants moved for summary disposition. The court, Brock A. Swartzle, J., denied defendants' motions and granted, in part, plaintiffs' requests for relief. In reaching those conclusions, the Court of Claims determined that the following 2022 manual provisions violated the Michigan Election Law and were therefore invalid: (1) the provisions requiring that election-challenger credentials must be on a particular form created by the Secretary of State; (2) the provisions requiring that election challengers must communicate challenges only to 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 challenger-liaison provision); (3) the provisions distinguishing between impermissible and permissible challenges, and the requirement to record in the pollbook only permissible challenges; and (4) the provision restricting challengers from having certain electronic devices in an absent voter ballot processing facility (AVBPF) while absent voter ballots are being processed until the close of polls on Election Day. To remedy these violations the Court of Claims instructed defendants that they could rescind the 2022 manual in its entirety or revise it to comply with the court's opinion. Defendants appealed in each case, and the Court of Appeals consolidated the appeals in an unpublished order entered on October 31, 2022 (Docket Nos. 363503 and 363505). Before the Court of Appeals resolved the appeal, defendants sought leave to appeal in the Supreme Court, seeking to bypass the Court of Appeals and a stay of the Court of Claims opinion and order until the conclusion of the appeals. The Supreme Court denied the bypass application but stayed the Court of Claims opinion and order and any subsequent decision of the Court of Appeals pending the appeal period for the filing of an application for leave to appeal in the Supreme Court. 510 Mich. 970 (2022) (Docket No. 166424); 510 Mich. 994 (2022) (Docket No. 164955). The Court of Appeals thereafter affirmed the opinion and order of the Court of Claims. ___ Mich.App. ___ (October 19, 2023) (Docket Nos. 363503 and 363505); amended slip op at 2, 14-15. Defendants sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to grant defendants' application. ___ Mich. ___; 6 NW3d 397 (2024).

In an opinion by Justice Bolden, joined by Justices Bernstein, Cavanagh, and Welch, the Supreme Court, in lieu of granting leave to appeal, held:

The Secretary of State has authority under the Michigan Election Law to require election challengers to use a uniform form for their credentials, i.e., to use the Michigan Challenger Credential Card, and she was not required to promulgate the requirement as a rule because it falls within the exception to rulemaking under MCL 24.207(h). The challenger-liaison provision is lawful except to the extent it requires a challenger at an AVBPF to raise an issue listed in MCL 168.733(1)(e) to a challenger liaison who is not also an election inspector at that facility, and the challenger-liaison provision also did not constitute a rule that had to be promulgated through the APA. The designation of challenges as "permissible" and "impermissible" and the requirement to record in the pollbook only permissible challenges are lawful under the Michigan Election Law except to the extent the provisions provide that the challenger liaison may deem the reason for the challenger's belief impermissible, and therefore decline to record the challenge, if the reason provided bears no relation to criteria cited by the challenger or if the provided reason is obviously inapplicable or incorrect; the provisions that do not conflict with the Michigan Election Law fall within the exemption to rulemaking under MCL 24.207(h) because they are interpretive statements. The challenges to provisions banning electronic devices from AVBPFs while absent voter ballots are being processed until the close of polls on Election Day were moot because of subsequent statutory amendments, and the lower court opinions and orders regarding that issue were therefore vacated.

1. Under the Michigan Election Law, the Secretary of State is the chief election officer of Michigan, and as such, the Secretary has supervisory control over local election officials in the performance of their duties. Subject to MCL 168.31(2)-which concerns the Secretary of State's authority to promulgate rules-MCL 168.31(1) requires the Secretary to perform certain duties, including to: (1) issue instructions and promulgate rules pursuant to the APA for the conduct of elections and registrations in accordance with Michigan law, MCL 168.31(1)(a); (2) advise and direct local election officials regarding the proper methods of conducting elections, MCL 168.31(1)(b); (3) publish and furnish before each state primary and general election a manual of instructions that includes procedures and forms for processing challenges, MCL 169.31(1)(c); and (4) prescribe and require uniform forms that the Secretary considers advisable for use in the conduct of elections and registrations, MCL 168.31(1)(e); and (5) investigate and report violations of election laws and regulations, MCL 168.31(1)(h). While the phrase "for use in the conduct of elections" is not defined in the Michigan Election Law, the authority provided under the phrase includes mandating the use of uniform forms that are deemed necessary or helpful to the act, manner, or process of carrying on a primary or general election. With regard to rulemaking, MCL 168.31(2) requires the Secretary of State to promulgate rules through the APA rulemaking process to establish uniform standards for state and local nominating, recall, and ballot question petition signatures. MCL 168.31(1) provides the Secretary of State with a degree of discretion in choosing what process to use to fulfill her remaining duties. In turn, MCL 168.765a(17) provides a separate requirement, mandating that the Secretary develop instructions consistent with the Michigan Election Law for the conduct of absent voter counting boards, or combined absent voter counting boards, that are binding on the operation of an absent voter counting board, or combined absent voter counting board, used in an election conducted by a county, city, or township.

2. Various provisions of the Michigan Election Law set forth the process for appointing election challengers. Under MCL 168.732, every election challenger appointed under MCL 168.730 or MCL 168.731 must possess the following three requirements to be credentialed: (1) authority signed by the appropriate individual, as recognized by the statute; (2) the written or printed name of the challenger; and (3) the number of the precinct to which the challenger is assigned. Every credential must include these requirements, and no additional substantive requirement may be imposed by the Secretary of State. Requiring election challengers to use a uniform form for their credential-i.e., the Michigan Challenger Credential Card-does not alter what evidence is sufficient to become credentialed and does not conflict with MCL 168.732.

3. MCL 168.727 and MCL 168.733 both address the authority of election challengers. Specifically, MCL 168.727(1) provides that an election inspector or other qualified challenger may challenge the right of an individual attempting to vote who has previously applied for an absent voter ballot and who on Election Day is claiming to have never received the absent voter ballot or to have lost or destroyed the absent voter ballot. MCL 168.727(2)(b) and (c) state that when a challenge is made under MCL 168.727(1), an election inspector must immediately take certain actions, including making a written report, and that report must be made a part of the election record. While election inspectors have implicit authority to determine whether a challenge is one under MCL 168.727(1) such that they are required to report it, they...