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

Protesters carried guns outside the Capitol this spring. (Bridge file photo by Dale Young)

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

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.

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Fri, 10/16/2020 - 2:06pm

We all have a right to cast our vote without being intimidated by armed intruders from the Republican Party.

Fri, 10/16/2020 - 3:43pm

So how exactly will a LEO write up the charging documents filed for committing a non MCL offense? Will it be a felony or misdemeanor? Or will it be a civil offense? What will the penalty be?

We are getting pretty far afield from the rule of law here. Whitmer, Nessel, and Benson should be issued crowns and scepters to signify their new authorities.

Charlie Day
Fri, 10/16/2020 - 6:35pm

Blah, blah, blah, stasi don't like armed citizens, bridge reports on what their masters tell them to report on, we get it.
You guys ever consider reporting on real news?
FYI I'll be carrying concealed when I vote ;)

G Scott
Sat, 10/17/2020 - 7:58am

Since when did exercising your right to vote require the use of a firearm? Lets' see, there is paper, pen and.....firearm? At some point, when do we awaken from this dystopian moment. The age of Trump has evidently made the voting process so dangerous that now it requires the carrying of a firearm! Well, firearms or not, lets' get out there and vote. Maybe some degree of rationality will be restored. Or, is that what the carriers of firearms are so afraid of?

Sat, 10/17/2020 - 9:36am

Benson needed to step up and make this demand. Trump is urging his supporters to expect violence and show up with their guns. He is inciting them. If you need a gun to show up to vote, your ideas must be weak, and too ineffectual for our county’s need. Bring your mind, instead. If that’s not enough, god help you.

Sat, 10/17/2020 - 10:24am

Excuse me, but the fundamental question is "where does the Secretary of State get the authority to enact laws? "

Sat, 10/17/2020 - 10:49am

I would like to see which document gives Ms. Benson the authority to make laws, or even Ms Nessel. They should be acting like Amy Coney Barrett rather than like Elena Kagen or Sonia Sotomayor.

Sat, 10/17/2020 - 11:23am

3, 2, 1... before the gun nuts start in on the '2nd Amendment' stuff (that begins providing the context for what follows: ' A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.' Well regulated means precisely what Benson is doing. And, of course, the whole amendment is talking about the state National Guard.

William C. Plumpe
Sat, 10/17/2020 - 11:32am

Open carry is one thing. Concealed carry is another.
Open carry at voting sites is outright intimidation because those openly carrying will most certainly be Republicans
"exercising their rights" and "protecting voting rights" when in fact they are creating an atmosphere of conflict, fear and tension to suppress the vote.
And if guns can be banned in schools and churches they definitely can also be banned at polling sites. No right is absolute and without limit. That is what laws are all about.
Banning guns at polling places is a reasonable and prudent public safety measure to help avoid gun violence.
There is no need to intimidate voters.
Polling places should be seen by voters
as safe havens where they can exercise their right to vote not armed camps patrolled by self proclaimed vigilantes whose real purpose is to suppress Democratic voter turnout by promoting fear and intimidation.

Mark Perry
Sat, 10/17/2020 - 12:42pm

Not that I open carry or concealed carry nor particularly affected by this matter, but the article repeatedly references Secretary of State Benson’s pronouncement as a “rule.” As I understand Michigan’s Administrative Procedures Act, a proposed administrative rule must go through the APA approval process before the proposed rule is enforceable as law. The lawyers working on a related APA amendment years ago have opined that the proposed governance matter doesn’t possess the force of law until approved under the APA and is no more than a policy, guideline, etc. Possibly the public needs clarification whether Sec. Benson’s pronouncement is in fact a rule or nothing more than a department policy. Just a thought.

MCL 24.232. (5) A guideline, operational memorandum, bulletin, interpretive statement, or form with instructions is not enforceable by an agency, is considered merely advisory, and must not be given the force and effect of law. An agency shall not rely upon a guideline, operational memorandum, bulletin, interpretive statement, or form with instructions to support the agency's decision to act or refuse to act if that decision is subject to judicial review. A court shall not rely upon a guideline, operational memorandum, bulletin, interpretive statement, or form with instructions to uphold an agency decision to act or refuse to act.

(6) If a statute provides that an agency may proceed by rule-making or by order and an agency proceeqds by order in lieu of rule-making, the agency shall not give the order general applicability to persons who were not parties to the proceeding or contested case before the issuance of the order, unless the order was issued after public notice and a public hearing.

Sat, 10/17/2020 - 1:02pm

I think the majority in the state have had more than enough intimidation by these "goons with guns". We need to vote out the "hicks from the sticks" who make up the minority population but comprise the majority in the legislature who make up these ridiculous gun laws.

Sat, 10/17/2020 - 1:27pm

Who needs a gun to vote? I don't. What have we become?

Sat, 10/17/2020 - 3:55pm

And WHO is going to inforce her band????
Not the cops in the red county
They are member of the KKK that wants to keep trump in power so that they can keep rioting

Sat, 10/17/2020 - 4:09pm

Kudos to Benson for banning guns at voting places. Guns do not belong in polling places and the people who carry them are clearly doing their best to intimidate others. Why do the gun lovers have to carry AK 47s and other such weapons publically other than to intimidate others. Police officers don't generally carry such weapons openly unless there is some issue.
If we are going to have so called Second Amendment rights, why can't the rest of us who don't carry guns have rights to security of our lives from the gun carriers? And if the so called originalists are for Second Amendment rights, consider that the right was enacted when only muskets were available. So...if they are going to hold to the original words of the Constitution, then muskets and musket pistols should be the only guns allowed publically.

John Chastain
Sun, 10/18/2020 - 9:05am

"Does the presence of a gun at a polling station amount to voter intimidation"?, the republicans have a long history of "voter intimidation" and suppression. The purpose of open carry in the places where the business of the public is carried out is posturing, brandishing acts of intimidation. Pretending otherwise is the usual disingenuous nonsense that one expects from craven republican politicians beholden to the gun extremists.
The idea that prohibiting republicans from showing up at polling places in their camouflage cosplay costumes and guns is an infringement of their second amendment rights or an act of "targeted voter harassment" to discourage hypersensitive (attorney Steven Dulan's term for people who wish to vote free of harassment and intimidation) republican voters is fallacious on its face and the type of specious nonsense one expects from the attorney for the Michigan Coalition For Responsible Gun Owners who are less responsible and more aggressive than their name implies. The purpose of republicans with guns at polling places is the same purpose as the ones that bring their guns to the state capital. It is to intimidate and attempt to force the submission of society to their will. The "intent" is in the action and parsing of thoughts for the motive behind them is a foolish argument meant to distract from the fact that aggression implied and open is an inherently political act, an act of terrorism. That is what the gun lobby and its republican toadies are defending, the right of gun carrying extremists to terrorize their fellow citizens into submission, or as the Donald would say "dominate" them.

Todd Priest
Sun, 10/18/2020 - 12:35pm

Thanks for the notice. I'll be sure to cover it up with my jacket.

Tue, 10/20/2020 - 8:12am

Give me just one good reason why you should have guns in the capital or any where near a poling place. I am listening. R.L.

John Chastain
Tue, 10/20/2020 - 8:26am

I don’t believe for a moment that there are no comments on this story. I’m seeing more and more articles without comments. If Bridge isn’t accepting comments in certain provocative stories they should say so. I posted a comment days ago on this one and it was “civil” enough.