In October of 2020, an election inspector audio-recorded training sessions in which Detroit election officials encouraged them to use “social distancing” requirements to impede poll challengers.
This was traced to a Secretary of State policy to allow this, in violation of the legal rights of poll challengers. A candidate and a poll challenger sued Secretary of State Jocelyn Benson, and just days before the election the Secretary of State settled the case by agreeing to reverse the policy and inform election officials of the change.
Despite a legal settlement overturning the policy, the agreement was completely ignored, and poll challengers on Election Day were impeded by election officials everywhere. These were, in fact, felonies in every instance.
Nobody was charged. It was a total violation of Michigan election law.
I know something about this issue. I was the one who recorded the training sessions, I was an election inspector in Detroit on Election Day, I had the misconduct I witnessed entered into the precinct poll book, and I submitted an affidavit to the Michigan Senate documenting the entire thing.
(I also crowdfunded the lawsuit and connected the plaintiffs to the attorneys.)
It really is important to understand the seriousness of these crimes. Consider this statement from the successful poll challenger rights lawsuit:
This case calls upon the Court to protect the rights of a specialized team of professionals known as election challengers so that they can perform their vital role in ensuring fair, lawful, and transparent elections. The role of election challengers is
created by statute. MCL 168.730. Political parties and other organized groups with an interest in the “purity of elections” and guarding against abuses are authorized to appoint election challengers to closely monitor both the voting process and the
counting of ballots. Id. Once duly appointed and qualified, these credentialed persons are given a wide range of authority by the Michigan Election Law to closely monitor the election process.
[…]
Because election challengers play such a vital role in our democracy, our Legislature has even made it a felony to threaten, intimidate, or impede the work of an election challenger. MCL 168.734; MCL 168.733(4). In fact, there are only two reasons given by statute to support the expulsion of a challenger from a polling place: (1) if there is evidence that the election challenger is drinking alcoholic beverages; or (2) is engaging in disorderly conduct. MCL 168.733(3). […]
On October 16, 2020, the defendants issued a written directive to local election officials outlining procedures for the upcoming November 3, 2020 general election… In relevant part, they have directed – or at the very least permitted – local election officials to condition the presence of election challengers upon wearing a face mask. And then even while wearing a mask, a local election official may mandate and expressly command that election challengers remain socially distanced [at least 6 feet] from election workers…
These directives render it impossible for an election challenger to fully execute their duties and exercise their rights under Michigan Election Law. As a threshold matter, and as described above, an election challenger can only be denied his or her right to inspect and challenge if he or she is consuming alcohol or acting disorderly. MCL 168.733(3). The statute does not provide for expulsion or impediment based on any other factor. But this case does not merely advance a technical challenge to the defendants’ directive. More critically, an election challenger is not able to discharge his or her critical duty and right from a distance of six feet.
Plaintiff Cushman is a duly appointed election challenger who intends to serve in that role during the November 3, 2020 general election. Additionally, Plaintiff Cushman served in that role during the August 2020 primary election. As described in the verified complaint, Plaintiff Cushman states that it was and will be very difficult to impossible to exercise his full rights from a distance of at least six feet. By way of specific example, from his own personal experience he states:
A. It was very hard to impossible to read names in the poll books.
B. It was impossible to tell whether the high-speed tabulator operator cleared the results before re-running the stack of ballots because of a jam of one ballot.
C. It was hard to see and hear the adjudication process.
D. It was very hard to impossible to observe computer screens which contain election data.
E. It was very hard to impossible to observe the checking of each ballot for seal and to observe whether envelopes were signed and dated.
And it is not just election challengers who recognize that they can’t perform their statutory duties while socially distanced; local election officials know it too. Based on the defendants’ directives, a local election official in the City of Detroit who was training poll workers rather gleefully describes how election challengers are to be impeded:
Election Official: They have to wear a mask and they have to stay six feet. That’s important because they can come behind your table, but if you don’t have six feet, they can’t come back there. They cannot wear anything that signifies who they work for. It has to be on the card. So, they can’t walk in with a party, or anything on, just like you can’t on your mask, they can’t either. Any questions?
Poll Worker: So if they’re six feet back, they can’t actually see.
Election Official: Exactly, unless they got really good vision or they
brought their binoculars.
[Laughter]
Election Official: Six feet. That’s the rule, right? And you are entitled to your six feet!
[END MOTION EXCERPT]
The lawsuit had such merit that the Secretary of State settled out of court at the first hearing and agree to amend their policy to clarify that poll challengers may not be impeded on the pretext of social distancing requirements:
What took place at the TCF Center were serial felonies. Poll challengers were unlawfully impeded.
The problem is that the aggrieved parties did not have sufficient video evidence and documentation to file criminal charges against election officials.
Solutions:
All election proceedings where ballots are not being cast should be permitted to be video-recorded by members of the public.
Absentee ballot counting boards (and even absentee ballot signature verification) should not take place behind closed doors. These are public proceedings.
Require all election inspectors wear name tags identifying their names and the political party they claim to represent.
When I was a ballot box inspector for the City of Detroit, red and blue name tags were given out, but nobody was required to wear them. It should be a misdemeanor for a poll worker to not wear name tags that accurately identifies the name the party he or she claims to represent.
These are common sense reforms to ensure the law is followed and that our elections are transparent.
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