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

Jocelyn Benson

Three gun rights groups sued Joceyln 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." (Bridge photo by Jonathan Oosting)

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.

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.

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Comments

Mr. Burns
Tue, 10/27/2020 - 7:24pm

I bet Chris would feel a slight bit intimidated if 20 armed and mask wearing thugs walked into his courtroom. America deserves better so get out the vote y'all. Make America Blue Again. Make Lying Wrong Again.

Charlie Day
Wed, 10/28/2020 - 7:54am

You should move to an authoritarian, communist country like china. I think you would love it.

I think we will see record open carry as a result of this. My wife and I do not have our CCW's, we have always voted Democrat but believe in our right to self defense. This will be our first time voting for a Republican ticket president (we are not voting straight ticket, btw) and we will both be exercising our right to open carry as a statement against this tyrant.

Irony
Wed, 10/28/2020 - 8:19am

I don't think there's a court house anywhere in the country that allows anyone besides law enforcement to enter with a gun, certainly not the Supreme Court.

Charlie Day
Wed, 10/28/2020 - 9:52pm

Irony, you are absolutely incorrect - Even a momentary google search would help you see this. Carrying a firearm is a constitutional right and there are very limited places where it can be restricted - Including schools, courthouses, some federal buildings, etc. It has always been this way. You shouldn't be afraid when you see a law abiding citizen carrying a gun. Have more faith in your fellow man. You are safer. Love wins. Walk softly and carry a big stick!

Jake K
Wed, 10/28/2020 - 10:17am

So is Biden lying every time he claims to be a virtuous Catholic...yet does not abide by the expressed doctrine of the Church and the Ten Commandments? The Fifth Commandment condemns murder...taking a human life. Yet he and the Democratic Party platform condones and even promotes human abortion at any stage of life. My open carry of a defensive weapon is going to intimidate and threaten you? I'm more threatened by those who place no value on life...those who want to slowly erode my constitutional rights...those who strive to make me a subservient subject of the government...those who want to use hand outs to maintain control and support of a voting base...those placing more value in the comfort of the "mother" than the sanctity of the conceived child. Murder is murder. You can't rationalize it to be okay.
Absolutely...VOTE. Send packing the overbearing, overreaching Dem administration currently making a mockery of our state government.

Jeff Alson
Tue, 10/27/2020 - 8:01pm

Another example of a Republican judge with no common sense. In the most charged political environment in a century, weeks after the arrest of men plotting to kidnap and kill our governor, he chooses to allow open-carry guns in polling places. At best, he is condoning voter intimidation. At worst, he is encouraging violent conflict. Is it too much to ask someone to store their guns for 15 minutes while voting?

American
Tue, 10/27/2020 - 11:48pm

Those who choose to give up their liberty for a perceived safety deserve neither liberty nor safety. Stop being a bunch of whining babies. Don’t you see that this is all about control?

Citizen
Tue, 10/27/2020 - 11:59pm

Yes. It is too much to ask for a law abiding citizen to do something because of your feelings. We do not have to give up our rights for you to feel better. First it’s 15 minutes then it’s 15 years. Get over yourself and your petty rules that are intended to control society.

David Murray
Wed, 10/28/2020 - 9:15am

Mr. Alson,
I agree wholeheartedly with the last line of your comment. There is no need to open carry a weapon into the polling station. The judge, however, in my opinion, is confronted with the State's laws and administrative rules and I believe he made his decision based on that. Ms. Benson, acting in good faith considering the current times as you noted, however, is bound by the law. He did announce his decision quickly to allow for an appeal, which to me signals he is quite sympathetic to the cause of Ms. Benson's concern. And for me the larger question is why at this moment in our history is there this drive to carry weapons to voting polls? We have descended into the abyss of petty dictatorships when the legitimacy of elections has been undermined by the president, when some people think they need to show up with weapons to "protect(?)" the process of a free and fair election; that somehow they have the right to create an atmosphere that threatens ordinary citizens from voting. Why are they bringing the weapons? How would they use them if they suspect fraud? And who are they to determine fraud? I live in an area where hunting is prevalent, where probably more than 80 percent of homes have a gun or rifle. No one feels the bravado need to walk around brandishing their weapon anywhere. To me then, the philosophy to carry a weapon to the polls is illegitimate. Yet, the judge had to make a decision of what the law states and what the processes are. Of all people, he seems to me to be one upholding the strength of democracy and the rule of law.

DS
Wed, 10/28/2020 - 9:53am

The job of the Judge is to read, understand and rule on the laws as they are written. Part of the ruling says that the rule setting process (APA) was not followed. Voter intimidation can also be changing the rules of voting without following the laws. Its a proper decision.

Disgruntled taxpayer
Wed, 10/28/2020 - 9:59am

Yes. Is it too much to ask that you abide by the rule of law?

Jake K
Wed, 10/28/2020 - 10:24am

Open carry is a legal right in MI. The judge enforced a legality...he didn't pander to a contrived "danger" promoted by the Dem administration. This wouldn't even be a story if Nessel, Benson and Whitmer hadn't made it one. Their actions inflamed passion from those promoting and opposing such posture. They attempted to work around the legality and they were stopped...again. If they extended more efforts towards serving ALL citizens of MI rather than pandering to their voting base, I believe the state would benefit greatly.

Contrarian
Thu, 10/29/2020 - 1:56pm

Isn't it you Democrats who are crying about people having to stand in line for HOURS to vote?

Which is it? Hours or 15 minutes

10x25mm
Tue, 10/27/2020 - 8:43pm

Does anyone remember the New Black Panther Party’s antics during the 2008 General Election? No prosecutions despite clear videos of voter intimidation.

All it takes is a few decent citizens with firearms to prevent this kind of intimidation.

Scott
Tue, 10/27/2020 - 9:50pm

I am signed up to be an election poll worker in my community. I am reconsidering, as I am NOT interested in some open carry idiots showing up at the polling place I am working.

Let it be
Wed, 10/28/2020 - 5:47am

Appeasement for guys that God gave the short end of the deal. "2nd Amendment" is code word for an insecure guy carrying a gun to compensate for his average manliness, to pretend he has "two" extra inches. They aren't so tough without their security blanket.

G Scott
Wed, 10/28/2020 - 6:24am

Lets' see..in order to vote you need pen, paper....and a firearm?

M
Wed, 10/28/2020 - 7:08am

The Court of Claims strikes again! This is a kangaroo court invented by Snyder and Republicans because the local courts always ruled against them in their unlawful schemes. The Court was stacked with Republican judges to ensure favorable rulings. Our judicial system is just as broke as Wisconsin.

Bob Schlueter
Wed, 10/28/2020 - 8:27am

The real question is why would someone feel the need to carry a gun to a voting site? That’s also the real problem.

Jason
Wed, 10/28/2020 - 8:32am

What a ridiculous and unprofessional statement by the Open Carry attorney. This order addresses valid concerns and it's clear that the plaintiff and his attorney are treating firearms like some sort of joke. Personally, I can't imagine a situation where someone would do this for any other reason than to sow division and try to intimidate other voters. There is certainly room for level-headed debate on the issue. It's too bad that the plaintiff's side won't engage in that reasonable debate. Personally I support the secretary of state and I think she should appeal and will likely win.

Le Roy G. Barnett
Wed, 10/28/2020 - 8:50am

I see no reason why the "I Voted" sticker could not be affixed to a holster a hundred feet from the polls. This is just a pretext to allege that freedom of expression is being violated.

TJH
Wed, 10/28/2020 - 9:58am

We have become an idiocracy.

Kraig Britvec
Wed, 10/28/2020 - 10:29am

As much as I dislike open carry, this type of encroachment into the rights of the citizens must end. It is important to vote in a way that ends these types of people who would violate rights from obtaining any power.

Good decision
Wed, 10/28/2020 - 12:44pm

The decision by Judge Murray is legally sound and he made the correct decision. For the past 8 months or so we have seen Whitmer and her cronies hurt the people of Michigan for political gain. It started out as a two week shut down to “flatten the curve” and morphed into 8 months of draconian measures that flattened the economy. It is good to see that the courts have again reminded Whitmer et al that they are constrained by the law. This is something everyone should remember when voting, Democrats will do ANYTHING in order to CONTROL YOU! Make Michigan Red Again!

Todd Priest
Wed, 10/28/2020 - 2:08pm

Nothing like democrats creating problems that weren't there to begin with. It's their MO.

M
Thu, 10/29/2020 - 9:41am

A recent poll in the Detroit News said 76% of Michigan residents want guns banned at the Capitol and at polling places. Are you listening Republicans?

Greg
Thu, 10/29/2020 - 9:59am

I'm tired of these tyrants thinking they can pass laws on their own. Vote all of them out.

Chris
Thu, 10/29/2020 - 3:41pm

If you are so "intimidated" by the sight of citizens carrying openly, (which IS legal in Michigan by the way), then stay home and vote absentee or go to your city clerk and vote there. Your feelings do not take priority over my rights.