Judge: Michigan can’t ban open carry guns on Election Day

LANSING — Democratic Secretary of State Jocelyn Benson’s attempt to ban openly carried weapons at Michigan polling places on Election Day is “likely unlawful” and cannot be enforced, state Court of Claims Judge Christopher Murray ruled Tuesday. 

With the election just one week away, Benson and Attorney General Dana Nessel promised an appeal in an attempt to restore the ban by Nov. 3. 

For now, Murray’s injunction order effectively strikes down a directive Benson issued this month amid fears of potential voter intimidation in a state with a growing paramilitary presence and a recent charges alleging a plot to kidnap Gov. Gretchen Whitmer. 

Michigan law already prohibits voter intimidation, and Benson violated a separate administrative law by circumventing a traditional rule-making process that would have required public input and legislative review, Murray wrote in his 14-page opinion. 

“Laws passed by the Legislature and signed by the governor already provide law enforcement with the tools to stop those whose goal it would be to intimidate voters, whether with or without a firearm,” said Murray, an appointee of Republican former Gov. John Engler.

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It’s the third election-related court loss for Democrats in as many weeks. A U.S. Court of Appeals panel last week ruled for Republicans by restoring a state ban on paid rides for voters. The Court of Appeals recently ruled that absentee ballots must arrive by clerk’s offices by Nov. 3 to be counted, overturning a ruling that had allowed up to 14 days to process postmarked ballots delayed in the mail.

Murray heard arguments in the case Tuesday and issued his ruling the same day, writing that quick action could leave some — “though certainly not a lot” – time for higher courts to hear an appeal.

Benson and Nessel indicated they would do just that, with the Secretary of State saying she has a  “sworn duty to protect every voter and their right to cast their ballot free from intimidation and harassment.”

Three gun rights groups sued Benson and other state officials last week, arguing her directive unfairly punishes residents who want “to exercise both their Second Amendment right to self-protection and their fundamental right to vote.” 

Robert Davis, a Highland Park activist who frequently files lawsuits, also sued Benson, and Murray consolidated the cases before hearing arguments.

The directive would have prohibited openly carried firearms within 100 feet of any Michigan polling place on Nov. 3. Open carry was already prohibited in some facilities that function as polling places, such as churches and some schools, and Tuesday’s ruling does not change that.

Gun rights groups argued the ban is a clear constitutional violation, and took a jab at affidavits from 21 voters who filed affidavits in the case indicating they would be intimidated by guns.

“This case is not about the fragile state of mind of 21 voters and what the secretary envisions is the appropriate level of ‘wokeness’ by voters,” Dean Greenblatt, an attorney for Open Carry Inc. told the judge during arguments Tuesday. 

“It’s the question of raw abuse and assumption of power not authorized by law.”

Nessel, in a court brief submitted Monday, argued the lawsuit should be dismissed as a “voting rights case” because Benson’s open carry ban is consistent with her obligation “to provide an ‘island of calm’ for voters and to ensure that they are free from intimidation.”

“This ensures  that when Michigan voters go to the polls, they have a refuge, free from fear and intimidation – whether they be a new citizen, a harried parent with small children in tow, a person with a history of gun violence, an 18-year-old first-time voter, or an elderly or disabled person who is anxious about being able to flee from an active shooter, “ Nessel wrote. 

But Murray telegraphed his position during oral arguments Tuesday, telling Benson’s attorney that the Secretary of State’s directive “smacks of an attempt at legislation” and “certainly smacks of being a rule with substantive law that is going to be enforced… by the state police and other local law enforcement officials.”

If Benson wanted to make a new rule, she should have followed a traditional rule-making process under the Michigan Administrative Procedures Act, Murray said. 

That would have required advance notice and been subject to review by the Legislature, where some in the Republican majority have already criticized Benson’s move.

“This is the kind of thing where public input is required,” Murray said.

Assistant Attorney General Heather Meingast argued the directive wasn’t a rule but an instruction to local clerks – and Michigan election law gives Benson clear authority to issue instructions.

Recent events, including the alleged plot to kidnap Whitmer, necessitated quick action that the rule-making process would not allow, Meingast said. 

“There is a space in which we have exercised authority to protect and to remote the right to vote for all voters in all polling places, all clerk offices, all AV counting boards,” she said. 

In defending the directive, Nessel’s office produced sworn affidavits from poll workers, election challengers and voters like Rabha Al Ghoul who said openly carried guns could intimidate them on Election Day.

A U.S. citizen originally from Lebanon, Ghoul, 68, said guns conjure memories of living in a “war zone” and said if someone stood near her at the polls with a visible gun, she would “fear they may start shooting me” and “will pass out.”

Gary Reed, 58, who served as executive director of the Michigan Republican Party from 1992 to 1995, said he plans to work as an absentee ballot counter in Delta Township next week. If he sees someone “walking around with a gun,” he would be “very intimidated,” Reed said in an affidavit.

In their complaint filed last week, attorneys for Michigan Open Carry Inc., Michigan Gun Owners and the Michigan Coalition For Responsible Gun Owners said the groups “represent many thousands of members who choose to openly carry firearms into polling places on Election Day as a means of pronouncing their viewpoint on the Second Amendment.”

Tom Lambert, board member for Open Carry Inc. and a named plaintiff in the case, “desires to openly carry a lawfully-possessed pistol in a holster at and near his polling place on Election Day,” attorneys said in the lawsuit. 

Lambert could “simply leave his firearm in the car until he is done voting,” Nessel wrote in her response brief. He’d be less likely to need self defense at his polling place if no one else was allowed to open carry either, she argued. 

Benson’s directive had already faced pushback from some local law enforcement groups that questioned her authority. While some sheriffs had already said they would not enforce it, Benson and Nessel said that Michigan State Police would. 

The suit claimed it is “common practice” for open carry advocates who take their weapons to the polls on Election Day to affix an “I voted” sticker to their holster, and then take a photo to post on social media. 

That’s a “form of political expression and viewpoint-based speech” that is also protected by the Constitution, attorneys argued.