Michigan gun groups sue Benson to open carry at election polling sites

Guns image

Some Republicans and local law enforcement groups have questioned the Secretary of State's authority to issue an open carry ban, and some sheriffs have already said they won’t enforce it. (Shutterstock)

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

LANSING — Three gun rights groups sued Michigan Secretary of State Jocelyn Benson on Thursday, demanding the right to openly carry firearms at or near polling places on Election Day. 

Benson moved to ban the practice last week, declaring that the presence of firearms at voter precincts “may cause disruption, fear or intimidation for voters,” election workers or others.

Her guidance would bar openly carried firearms within 100 feet of polling places on Nov. 3. Those with a concealed carry license can carry guns, except in buildings that already ban concealed carry, such as schools or churches.

But the directive unfairly punishes residents who want “to exercise both their 2nd Amendment right to self-protection and their fundamental right to vote,” according to the lawsuit, which asks the Michigan Court of Claims to immediately prohibit the state, state police, other officers or prosecutors from promoting or enforcing the ban. 

 

Attorneys are seeking an injunction to suspend Benson’s directive and asking for expedited review of that request given the upcoming election, which is less than two weeks away. Ultimately, they want the court to declare the open carry ban “void as a matter of law.”

Benson overstepped her authority, according to the complaint. It also seeks to invalidate a Michigan law that gives election officials “full authority to maintain peace, regularity and order” at polling places, which attorneys called an unconstitutional delegation of power by the Legislature.  

Asked about the lawsuit, Secretary of State spokesperson Jake Rollow called Benson’s rule a “narrowly tailored directive” that “does not infringe upon the right to bear arms.”

“The Supreme Court has repeatedly found that the right to vote is foundational to our democratic society and preservative of our other basic rights,” he said. The open carry ban “simply protects voters and election workers by providing much-needed clarity on the existing state and federal laws that prohibit voter intimidation, harassment and coercion.”

But Benson’s directive has faced pushback. Some Republicans and local law enforcement groups have questioned her authority to issue an open carry ban, and some sheriffs have already said they won’t enforce it. 

Michigan State Police will enforce the rule where locals won’t, Benson said Wednesday, noting she crafted the rule with Attorney General Dana Nessel and is confident it will hold up in court. 

Her legal authority comes from state laws against voter intimidation as well as state and U.S. constitutional protections of the right to vote, she claimed.

Tom Lambert, a past president and current board member for Open Carry Inc., is a named plaintiff in the suit. He “desires to openly carry a lawfully-possessed pistol in a holster at and near his polling place on Election Day,” according to the complaint. 

The gun rights groups suing Benson, Nessel and Michigan State Police Director Joe Gasper “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,” attorneys said. 

The suit claims 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. 

Nessel provided guidance to Benson on the rule, and her office has said it is “confident” in that advice. The ACLU of Michigan, which promotes civil rights, has also backed Benson.

“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 last week. 

“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.”

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Comments

DS
Thu, 10/22/2020 - 7:18pm

We need a law to prevent any change in voting laws/procedures within 6 months of an election. This last minute change of rules is also a form of voter intimidation and confusion.

Math Sux
Fri, 10/23/2020 - 6:44am

Agree 100%. Also, Election Day is the 1st Tuesday of November...period.

Think to the images of Iraqi's and their "purple finger" to show they voted. These people risked their lives, literally, to vote. Bombs, bullets, and fear did not stop them but we engage in all sorts of twisted thinking to start voting weeks before election day. If anyone doubts the integrity of our process, it isn't a surprise as too many changes have occured to a once-normalized event. Vote on the traditional Election Day IN PERSON, or apply for an absentee ballot (and for pete's sake go back to requiring a reason...and yes, health concerns are valid).

AS
Fri, 10/23/2020 - 8:36am

I completely agree. I could see a ban on open carry in polling places as a reasonable steps to prevent voter intimidation. However, Benson has had 21 months to make this change, there's absolutely no excuse for waiting until October to announce it.

I can only see two reasons for waiting until now to
make the change. The first is that she knows that the rule is unconstitutional, and she's hoping that the court will not have time to rule on the matter before the election. The second is that she's hoping to create confusion and disenfranchised open carrying voters, who are more likely to vote for Republicans.

If she wanted to enact this policy the right way, she would have worked to get it done several months before the election, and she would have worked with the legislature and the governor to make sure the law had legal legitimacy.

Jason
Fri, 10/23/2020 - 9:36am

DS you make a great point!

Correct
Fri, 10/23/2020 - 4:43pm

Agreed!!

G Scott
Fri, 10/23/2020 - 8:24am

Lets' see...to vote you need paper, pen...and firearm! Hmmmn. I wonder what the gun carriers are so afraid of? The voting process can be sooo intimidating. Maybe the gun carrier is afraid of their own thought, or shadow? Perplexing is'nt it?

Anonymous
Fri, 10/23/2020 - 9:06am

After the state turns "full blue" by 2024, we'll have a chance to have common sense gun laws and do away with open carry in the state. The gun crazed will then be forced to play with their guns in the privacy of their own bathrooms instead of a public display of intimidation.

ED MEURER
Fri, 10/23/2020 - 9:23am

Our gun laws need to be overhauled.

It doesn't make sense to carry weapons into a peaceful gathering of citizens intent on voting.
If anything, State Police need to be at voting stations to KEEP the peace, not civilians with guns. I trust the trained professionals of the Michigan State police over any 2nd Ammendment Rights group.

M
Fri, 10/23/2020 - 10:29am

Guns at the voting locations is nothing more than voter intimidation.

Don
Fri, 10/23/2020 - 11:16am

Them uneducated republican voters do not event know what in the 2nd amendment they only know what fox news tells them>>>However, opponents of a strong central government (known as Anti-Federalists) argued that this federal army deprived states of their ability to defend themselves against oppression! THE STATE NOT THE PEOPLE!!!!

Donald
Fri, 10/23/2020 - 11:17am

LIKE THE REPUBLICANS DO ALL THE TIME TO STOP PEOPLE FROM VOTING!!!! LIKE IN TX OR KY OR GA!!!!!

PLombard
Fri, 10/23/2020 - 1:43pm

Although I'm a supporter of Ms. Benson, I don't think she has the authority to ban weapons. The legislature surely can (with the governor's signature), but not the SOS.

Le Roy G. Barnett
Fri, 10/23/2020 - 2:24pm

I always try to find the silver lining in a bad situation. If open-carry people scare voters from going to the polls, it will simply hasten the day when Michigan adopts a system where everyone in the state votes by mail.

Jake K
Fri, 10/23/2020 - 3:22pm

So the visibility of my legally carried firearm will cause “intimidation, harassment and coercion?” Our state admin Dems continue efforts to derail our constitutional rights in favor of a posture their voting base desires. If Benson and Nessel wouldn’t have taken the action they did, the matter wouldn’t have gained any attention. They did and now it has. Other states don’t seem to have the same concerns about open carry. Why is it so in MI? Oh, that’s right...those who don’t care for it want to take it away from all others.

Ghost of Reagan
Sat, 10/24/2020 - 7:01pm

When the Black Panthers showed up with guns at the polls, I made gun laws in California stick!

https://en.wikipedia.org/wiki/Mulford_Act

The Mulford Act was a 1967 California bill that repealed a law allowing public carrying of loaded firearms. Named after Republican assemblyman Don Mulford, and signed into law by then governor of California, Ronald Reagan, the bill was crafted with the goal of disarming members of the Black Panther Party who were lawfully conducting armed patrols of Oakland neighborhoods

Both Republicans and Democrats in California supported increased gun control, as did the National Rifle Association of America, a major supporter of the act.[9] Governor Ronald Reagan, who was coincidentally present on the capitol lawn when the protesters arrived, later commented that he saw "no reason why on the street today a citizen should be carrying loaded weapons" and that guns were a "ridiculous way to solve problems that have to be solved among people of good will." In a later press conference, Reagan added that the Mulford Act "would work no hardship on the honest citizen

https://www.snopes.com/fact-check/nra-california-open-carry-ban/

Recognizing that they were its primary targets, the Black Panthers protested the Mulford bill by sending an armed contingent to the state capitol on 2 May 1967. That was a day Ronald Reagan would never forget — nor, for that matter, remember accurately.

This is how he described the event and its aftermath in a personal letter written in 1979:

The Black Panthers had invaded the legislative chambers in the Capitol with loaded shotguns and held these gentlemen under the muzzles of those guns for a couple of hours. Immediately after they left, Don Mulford introduced a bill to make it unlawful to bring a loaded gun into the Capitol Building. That’s the bill I signed. It was hardly restrictive gun control.

It wasn’t true, however, that the Black Panthers had held legislators “under the muzzles of guns” for hours. They were disarmed by the capitol police soon after entering the building, and, according to most contemporaneous accounts (including that of the Associated Press) were escorted out of the chambers 30 minutes later

The National Rifle Association would later (during the 1970s) harden their stance against any limitations on the right to bear arms, but in 1967, when the Black Panthers emerged as the most militant defenders of that right, the NRA took a very different position.

Their mutual legacy, the Mulford Act, is still on the books today.

Do I smell something? Yes, yes I do!!
Do you smell it too?

Geoffrey Owen
Sun, 10/25/2020 - 3:14pm

Keep your gun in the car. Yes it intimidates people. No, it isn't a right. You can own a gun. You can carry your gun. But bring your first amendment to the poll and leave your 2nd amendment in your pants. You don't impress anyone.

Alpha Romeo
Fri, 10/23/2020 - 4:01pm

They don't need to sue. Her orders are illegal and can legally be ignored.

GMax
Fri, 10/23/2020 - 7:38pm

Ever heard of a polling place that was violent where people needed guns to protect themselves?

Me neither.

Keep guns away from and out of polling places. It’s not exercising a right .... it’s designed to intimidate others.

Only one solution
Sat, 10/24/2020 - 5:45pm

Both sides it!

Dems?

Bring your guns!!

Isn't that what the press and the GOP want?

Geoffrey Owen
Sun, 10/25/2020 - 12:55pm

Legal or not legal should not even be the question. You can't wear a MAGA hat or a Biden Shirt in the polling place, so rules can be made and enforced. An open carry weapon is very indimidating whether it be at Starbucks or an election site. Intimidation is illegal and this addresses this isssue. The real question is this: What kind of idiot thinks he needs to carry a weapon into the ballot place? Really, what is your message intended to be and who are you making it to? You bring your gun and I'll bring my camera, and I bet I'm a better shot than you are, and you will be sued for violating my right to be safe when I vote.

Anonymous
Mon, 10/26/2020 - 10:21am

How can a person fill out a ballot when you have a gun in each hand and another stuck in your bum? Never thought voting could be so hard to do!

Scott
Tue, 10/27/2020 - 9:55pm

So, If a church is being used as a polling place, and they have a no gun policy, does that mean the church is exempt from allowing open carry morons in?