Appeals court sides with gun advocates in ban on firearms at Michigan polls

Michigan still can’t ban guns at polling places on Election Day, the state Court of Appeals effectively ruled Thursday. 

The court denied an appeal from Secretary of State Jocelyn Benson and Attorney General Dana Nessel asking them to reconsider a Court of Claims ruling in favor of a guns rights group striking down a rule barring the open carry of firearms within 100 feet of polling places on Election Day. 

“The Michigan Legislature has given the Executive Branch important and necessary tools to prevent voter intimidation,” wrote Judge Patrick Meter, who was joined in the order by Judges Michael Gadola and Brock Swartzle. All three were initially appointed to the bench by Republican governors and one, Swartzle, is currently running for a seat on the Michigan Supreme Court.

“Voter intimidation is — and remains — illegal under current Michigan law. Accordingly, anyone who intimidates a voter in Michigan by brandishing a firearm (or, for that matter, by threatening with a knife, baseball bat, fist, or otherwise menacing behavior) is committing a felony under existing law, and that law is—and remains—enforceable by our Executive branch as well as local law enforcement,” the order reads.

Benson and Nessel argued the rule was necessary to provide clarity to election workers seeking to identify voter intimidation and ensure people feel safe voting. The offices said Thursday they plan to immediately appeal the decision to the state Supreme Court, which a court spokesman said can hear and determine the case before Election Day if the court accepts it. 

“The merits of this issue— which impacts all Michiganders — (deserve) full and expedited consideration by our State’s highest court,” Attorney General spokesperson Ryan Jarvi said in a statement, referencing a recent poll indicating 73 percent of Michigan voters said guns should be banned near polling places. 

The suit was filed by Robert Davis, a frequent litigator from Highland Park, and advocacy groups Michigan Open Carry, Michigan Gun Owners and Michigan Coalition for Responsible Gun Owners. They argued that the ban was a violation of Second Amendment rights. 

The judges “laid out that voter intimidation and simply showing up to the polls to vote while armed doesn’t mean voter intimidation,” said Joey Roberts, president of Michigan Open Carry. “So we’re happy with that decision and we agree entirely.” 

In a court brief submitted in the Court of Claims, Nessel argued that the lawsuit should be dismissed in part due to the unique importance of voting and the potential intimidation firearms cause — especially in light of the alleged plot to kidnap Gov. Gretchen Whitmer and other fears of violence on Election Day. 

“The People of this State have decided that the holding of free and fair elections is uniquely important. If the Court grants the extraordinary relief of a preliminary injunction and disregards the Secretary’s decision-making that the visible presence of firearms would have a chilling effect on the right to vote, it will be undermining the will of the voters who amended this State’s constitution,” Nessel wrote.

Earlier Thursday, Democratic attorneys general from California, New York and 13 other states filed an appeals court brief in support of Nessel and Benson, telling judges that “restrictions on firearms at polling places have long been recognized as a legitimate means of ensuring orderly elections and preventing voter intimidation.”

“Avoiding voter intimidation is among the most compelling of state interests with respect to elections, and that state interest justifies reasonable restrictions on activity that might be permitted in other public spaces,” the attorneys general wrote. 

A coalition including the NAACP Legal Defense and Education Fund and the ACLU of Michigan had also urged the Court of Appeals to uphold Benson’s open carry ban, saying it would “reduce the risk of voter suppression through voter intimidation, a persistent and pernicious threat to the right to vote, particularly for voters of color throughout the state.”

In suspending the directive on Tuesday, Michigan Court of Claims Judge Christopher Murray ruled Benson’s rule was “likely unlawful” because she bypassed a traditional rule making process that requires public input and legislative review. 

That ruling was spot on, according to attorneys for the gun rights groups, who said in a Thursday morning briefing that Benson “not only lacks the legal authority to pronounce a directive that directly conflicts with Michigan law, but is also attempting to unilaterally change long-standing laws that are entrenched in tradition and legal precedent.”

If the existing rules remain in place — with Benson’s firearm rule struck down — that would mean open carry at polling places is allowed, except in locations such as churches and schools that are designated as weapon-free zones. 

In weapon-free zones, people with a concealed pistol license are the only gun owners that are allowed to carry guns, though they have to openly carry them.