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Gun groups sue to stop Secretary of State Benson's open carry ban at polling places

Beth LeBlanc
The Detroit News

Advocates disgruntled by a recent ban on the open carry of firearms near polling locations have sued in Michigan's Court of Claims to stop it. 

The lawsuit filed Thursday by Michigan Open Carry, Michigan Gun Owners and Michigan Coalition for Responsible Gun Owners argues that Secretary of State Jocelyn Benson's order banning open carry near polling places conflicts with state law, conflates open carry with voter intimidation and "is conjured without any legal basis or authorization under Michigan law."

The lawsuit alleges that Secretary of State Jocelyn Benson's order banning open carry near polling places conflicts with state law, conflates open carry with voter intimidation and "is conjured without any legal basis or authorization under Michigan law."

The edict creates an ultimatum, the lawsuit said: Either individuals give up a Second Amendment right to bear arms for self-protection or give up their right to vote. 

The suit seeks a preliminary injunction against Benson's directive that would stop enforcement of it on Election Day. 

"Nowhere within Michigan's Constitution is the office of the Secretary of State empowered to issue directives regarding the time, place or manner of elections," the suit said. "Indeed, those powers are specifically limited to the Legislature."

Benson should have gone through the regular rule-making process, which includes public hearings, the lawsuit argues. Instead, she failed to comply even with emergency provisions within the rule-making process. 

Benson's office rejected the lawsuit's arguments in a Friday statement, noting voting is "a fundamental right foundational to our democratic society and preservative of our other basic rights."

"As the state’s chief election officer, the secretary has a duty and responsibility to protect that right and to provide much needed clarity to voters and election workers on the existing state and federal laws that prohibit voter intimidation, harassment and coercion," said Tracy Wimmer, a spokeswoman for Benson's office.

The case was assigned to Court of Claims Chief Judge Christopher Murray, who ordered briefs from both sides be filed in the case by Tuesday, with the possibility of oral arguments after the briefs are filed. Murray was appointed by Republican former Gov. John Engler.

In a separate similar suit, serial litigant Robert Davis of Highland Park also challenged Benson's directive, alleging that "though well-intended" the edit is "unlawful and unenforceable."

Murray also granted expedited consideration in that case, ordering Davis and Benson to file briefs no later than 5 p.m. Monday.

Citing her authority as administrator of elections, Benson announced Oct. 16 that the open carry of firearms within 100 feet of a polling location, clerk's office or absent voter counting board was prohibited Nov. 3. The ban by the Detroit Democrat was immediately criticized by the National Rifle Association and gun rights groups throughout the state

Police groups — including the Michigan Sheriffs Association and the Michigan Association of Chiefs of Police — also questioned how Benson's directive could supersede state law. 

Attorney General Dana Nessel said Michigan State Police troopers would intercede in locations where local police refused to enforce the ban. 

"The feedback I’ve been getting from our police agencies is that they’re uncomfortable trying to enforce something they clearly don’t have the authority to enforce," said Robert Stevenson, director of the Michigan Association of Chiefs of Police. “Our hope is that this will get resolved and there’ll be some clear guidance.

"... But as it stands now, there’s nothing in the law that gives police the authority to enforce the Secretary of State’s edict."

Michigan Sheriff's Association CEO Matt Saxton said Benson's directive appeared to be a "solution in search of a problem." The association was directing it's members to consult with corporate counsel and their local prosecutor on enforcement decisions.

Wayne County Sheriff Benny Napoleon, a fellow Democrat, expected the directive by Benson would be challenged in the coming days. Until then, he said he plans to comply.

Livingston County Sheriff Mike Murphy said he would not enforce the ban. The Republican sheriff refused to enforce Gov. Gretchen Whitmer's executive orders while they were in place as well.

eleblanc@detroitnews.com