Added on October 19, 2020  Sara Swanson

Jocelyn Benson bans open carry of guns at Michigan polls on Election Day

by Riley Beggin, Jonathan Oosting, Ted Roelofs (Bridge)

Guns will not be allowed at polling places on Election Day in November, Michigan Secretary of State Jocelyn Benson announced Friday.

According to new state guidance, openly carrying of guns is banned within 100 feet of a polling place. Concealed carrying of guns for permit-holders is allowed, except in buildings that already ban concealed carry, such as a school or church.

The new rules come as fears of voter intimidation have been rising in the wake of President Donald Trump’s calls for supporters to show up to the polls in November to watch out for fraud and for the far-right group the Proud Boys to “stand back and stand by.” Social media posts have also been circulating in conservative circles about fears of far-left Antifa activists showing up at polling places.

“Fair, free and secure elections are the foundation of our democracy. I am committed to ensuring all eligible Michigan citizens can freely exercise their fundamental right to vote without fear of threats, intimidation or harassment,” Benson said in a news release. “Prohibiting the open-carry of firearms in areas where citizens cast their ballots is necessary to ensure every voter is protected.”

While praised by the ACLU and voting rights advocates, the guidance provoked pushback from gun rights supporters and promises of litigation attempting to reverse the decision. And at least one sheriff told Bridge Michigan on Friday that he won’t enforce the rules in his county.

Benzie County Sheriff Ted Schendel said he would instruct deputies to try to defuse any situation in which someone shows up at a polling site with a gun, rather than make arrests.

“I think the Second Amendment is pretty clear: The right to bear arms shall not be infringed upon,” said Schendel, who is one of a handful of Michigan sheriffs aligned with the “constitutional sheriffs” movement, which holds that sheriffs have the final word on what’s lawful in their counties, not state officials.

“What authority does Benson have to do this?” he said. “It’s up to the Legislature to make laws, not her.”

In announcing the new rules, Benson’s actions appear to raise a fundamental question: Does the presence of a gun at a polling station amount to voter intimidation, regardless of whether the gun is brandished or otherwise displayed in a threatening manner?

“Every gun group in Michigan” is talking about legal action, said Joey Roberts, President of Michigan Open Carry Inc.

“I think this shows a growing trend of the executive branch trying to rule by executive fiat here,” he said. “There’s nothing in statute or the state constitution that gives [Benson] authority to do this.”

Robert Stevenson, executive director of the Michigan Association of Chiefs of Police, said he’s already heard from chiefs concerned that Benson’s directive may put them in an election day showdown over gun rights.

“Michigan is an open-carry state,” Stevenson said.

“It’s been recognized you can open carry [firearms] within governmental facilities like the state capitol and at council meetings. That’s well accepted and recognized. So her order would apparently conflict with that, because many polling places are in exactly those kind of venues.”

He added: “Our police chiefs want to follow the law. We don’t want to get in the middle of a political argument.”

State Rep. Beau LaFave, an Iron Mountain Republican and gun rights advocate, said he does not think Benson has the legal authority to ban openly carried guns at polling places — especially if it prevents any gun-carrying voters from entering.

You need the “government’s permission” for a concealed carry permit, and Michiganders have the right to open carry instead, even at their polling places, LaFave argued.

“This is targeted voter harassment,” he said, suggesting that Benson’s open-carry ban could discourage Republican voters more likely to bring guns to the election.

“It’s a disgusting abuse of power and an unlawful attempt to influence an election for her Democrat friends,” he said of Benson, a Democrat.

State Rep. Triston Cole, R-Mancelona, called Benson’s polling place directive an “in-your-face unconstitutional ban.”

“These areas ARE NOT designated ‘gun free zones,’” he wrote on Facebook. “Democrats want to take your guns and your Second Amendment rights away.”

But some election officials appeared to welcome the guidance, saying they are concerned about the potential for voter intimidation at the polls in November.

“I’m always concerned about potential voter intimidation. The polling place is sacred ground,” said Ingham County Clerk Barb Byrum, a Democrat. “I am committed to making sure that they are free to exercise their right to vote in person if they so choose without fear of intimidation.”

Sharon Lemasters, county clerk in Monroe County, welcomed the news. “If they’re open carry or they’re showing the gun, the clerk can call us and we can tell [the voter] that it’s prohibited. If they refuse to leave, then we’ll just call the sheriff’s [office] and let them handle it,” Lemasters, a Democrat, said.

“Any direction they give us — we’re happy with.”

Justin Roebuck, Ottawa County Clerk and a Republican, told Bridge Michigan he wants the election to run smoothly and wants to support Benson’s efforts to do so. But he said he’s already getting questions from local clerks and law enforcement about what authority Benson has to issue such rules.

“There’s no statutory citation for the authority here. We’re assuming that the Attorney General may issue further guidance. But it’s certainly challenging because it’s contrary to all of the guidance we’ve ever received for instructing our election workers,” Roebuck said.

“My concern is that issuing legally ambiguous guidance like this could incite others to challenge it on Election Day. We’re opening the door for those challenges at this point.”

Sheriff Schendel made a similar point, saying he fears  Benson’s order will likely inflame polling site tensions, perhaps prompting more voters to show up with guns than they would otherwise.

“People generally don’t go to vote with a gun. She should have just left this alone,” Schendel said.

In her guidance, Benson writes that her actions announced Friday stem from her “supervisory control over local election officials in the performance of their duties.”

Jake Rollow, spokesperson for Benson’s office, told Bridge via email that it issued the directive after receiving counsel from Attorney General and fellow Democrat Dana Nessel’s office, which helped the SOS review gun law, voter intimidation law and election law.

“The directive respects the right to bear arms, and in fact does not touch on concealed carry, but it does say that in the context of a voting location (that the) open carry of a firearm can cause voter intimidation, and therefore is not allowable,” Rollow said.

A spokesperson for Nessel said her office is “confident in the advice provided to the Secretary.”

Rollow added that the directive parallels other prohibitions in polling places, such as the ban on photography or video recordings.

“Obviously, the public has the right to take pictures in public, but the Department of State determined many years ago that they cannot take photos of others in polling places, because voters have the right to a private ballot,” Rollow said.

That’s unlikely to dissuade critics.

Expect a lawsuit — and soon, said attorney Steven Dulan, legal counsel for the Michigan Coalition For Responsible Gun Owners.

“It appears as though the Secretary of State is trying to define the mere presence of a visible firearm as voter intimidation” he said. “It’s a puzzler, because there’s really no statutory basis for the Secretary of State to do this.”

Benson’s supervisory role in elections doesn’t trump the constitutional right to bear arms, Dulan argued, “but it looks like we’re going to have to have that argument in front of a judge.”

Dulan, a professor at Cooley Law School, told Bridge he has already reached out to other attorneys who may work together to sue Benson. As of mid-day Friday, they’d already begun research for the anticipated litigation.

With the Nov. 3 election just 18 days away, the promised suit will seek a swift court injunction, Dulan said. “But even if for some reason we don’t get a decision prior to the election, this is an argument worth having.”

“It’s a slippery slope argument, essentially. If she can keep guns out of polling places because of the hypersensitivity of some individuals, then it’s a short walk to, ‘We can keep guns out of everywhere.’”

Leaders in Michigan’s Republican-led Legisature did not immediately indicate whether they would challenge Benson’s directive, even as one of them belittled the new rules.

Senate Majority Leader Mike Shirkey, R-Clarklake, “wishes the Secretary would put effort into reducing wait times for people trying to renew their driver’s licenses,” a spokesman said, “but we recognize her actual job is not as attention-grabbing as making up firearm policies less than 20 days before an election.”

Michigan is an open-carry state, which means usually it’s legal to carry guns in plain sight. About 6 percent of the population (more than 616,000 residents) have concealed carry permits.

There are nine types of locations in Michigan where people are already prohibited from concealed carrying, including schools, day care centers, churches, hospitals and college dormitories. Traditionally, concealed carry license holders could open carry at these locations, but under the Secretary of State’s guidance they cannot open carry, either.

Outside of 100 feet of the polling place, election workers should immediately call the police if they see people acting in a way “that would tend to intimidate, hinder or impede voters on the ways to the polls,” the guidance says.

People can leave a gun inside a vehicle parked within 100 feet of a polling place under the guidance while they’re visiting the polling location, unless the location otherwise prohibits it.

Campaigning, distributing campaign flyers, gathering petition signatures, showing pro and con information on ballot issues, and showing signs, posters and bumper stickers for particular candidates also aren’t allowed within 100 feet of polling locations.

Election workers will be required to post signs providing notice of the new rules inside the polling place and at the entrance to the building, and local clerks are encouraged to coordinate with local police ahead of Election Day to establish a plan for enforcing the rules.

The guidance applies only to the Nov. 3 general election, according to the Department of State. Ten other states and the District of Columbia have permanent bans on guns at the polls.

The guidance was necessary, Benson said in the memo, because without it “there is potential for confusion and uneven application of legal requirements” across the state’s decentralized election system, which is administered by 1,600 local election officials.

Nessel, whose office was involved in developing the guidelines, said in the statement that “an armed presence at the polls is inconsistent with our notion of a free democracy.”

“Michigan voters have the right to vote in person on Election Day free from threat and intimidation,” she said.

The state Democratic Party applauded Benson’s guidance, as did the ACLU of Michigan, which is involved with voting rights advocacy in the state.

“The Supreme Court has long recognized that polling places should be an ‘island of calm,’ free from distraction and interference,” ACLU of Michigan Executive Director Dave Noble said in a statement. “Therefore, just as people are not allowed to carry signs or pass out political literature within 100 feet of polling places, people should not be allowed to openly carry guns.”

Under federal voting law, it’s a crime to intimidate, threaten or coerce anyone for the purpose of interfering with their right to vote, such as by blocking their right to enter polling stations. Because it requires a finding of “intent” to interfere with voting rights, it’s a difficult crime to prove.

According to the Georgetown Law Institute for Constitutional Advocacy and Protection, examples of voter intimidation include violent behavior inside or outside a polling site, blocking entrances used by voters and “brandishing firearms or the intimidating display of firearms.” The law center also notes that “voter intimidation is often subtle and context-dependent, so it can be difficult to identify in advance.”

Kent County Sheriff Michell Lajoye-Young said her department is prepared to respond if needed to enforce Benson’s order.

“If called upon to respond to any kind of disturbance, that’s one of things we always do on election day, to make sure everyone has a safe and secure voting experience. I hope everybody abides by this and we can move forward with our day.”

Sheriff Schendel indicated his deputies will opt for gentle persuasion over confrontration if someone arrives with a gun.

“What you can do is say, ‘How about you put your gun in your car and then go vote,’” he said.

Bridge reporters Robin Erb and Ted Roelofs contributed to this report.