The Michigan Supreme Court will soon determine whether Democratic Secretary of State Jocelyn Benson circumvented the rule making process to impose restrictions on poll challengers.

The case argued before the state’s highest court on Tuesday is only the latest in a string of lawsuits over election rules Benson imposed through a manual issued to clerks in 2022 that has since led to repeated defeats in lower courts.

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On Tuesday, arguments centered on instructions for election challengers, which involve a uniform credential form, limits on recordings, and a ban on electronic devices during absentee vote counting, The Detroit News reports.

State and national Republican parties are challenging the rules that did not go through the Legislature’s bipartisan Joint Committee on Administrative Rules as required, arguing they violate state election laws.

“Absent compliance with that process, the rules are invalid,” Republican attorney Robert Avers told the court, according to WEMU. “That’s exactly what happened here.”

Republicans filed the case in October 2022, and the Court of Claims sided with them in October 2022, but the Supreme Court suspended the ruling for the 2022 election a month away. The Court of Appeals upheld the Court of Claims ruling last October, sending the case back to the Supreme Court.

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“Both of the lower court decisions, the legal maxims discussed by those courts — they’re clear and uncontroversial,” Avers said.

Republican-nominated justices David Viviano and Brian Zahra on Tuesday questioned whether Benson’s vague instructions for clerks give them too much discretion in determining whether challenges can be recorded.

“Where does the secretary find the authority … to have clerks determine which challenges are permissible such that they don’t even have to be adjudicated, much less recorded for future review by anybody?” Vivano asked. “In other words, to act as judge, jury and executioner on whatever is designated as ‘impermissible challenges.’”

Zahra also questioned why Benson did not use the rule making process.

“When we’re looking at express language of the statute that says everything should be recorded, why shouldn’t we conclude that that is a rule rather than an instruction?” Zahra said.

Assistant Attorney General Heather Meingast argued on behalf of Benson that instructions in the elections manual are within the Secretary of State’s authority to set rules for elections.

“Agencies making forms is a pretty routine matter,” she said, according to WEMU. “That’s why it’s exempt from rulemaking for the most part, right? So, this is an innocuous instruction. The plaintiffs haven’t really described how this harms their interests in any way.”

Justices are expected to decide the case soon to set rules ahead of the August primaries.

Tuesday’s hearing came less than a week after Appeals Court Judge Christopher P. Yates ruled that guidelines issued by Benson regarding verification of signatures on absentee ballots violate the Michigan Constitution.

Benson’s guidance suggested “voter signatures are entitled to an initial presumption of validity,” but Yates disagreed and mandated strict adherence to signature verifications in the 2024 election.

“The Secretary of State and the Director of Elections possess powers and duties concerning election procedures, but their powers do not extend to the promulgation of rules that conflict with the Michigan Constitution or statutes enacted by our Legislature,” Yates wrote.

Yates was appointed to the Court of Appeals by Gov. Gretchen Whitmer in 2022.

His ruling last week was only the latest to strike down Benson’s election rules, following successful challenges in 2020 regarding her ban on open carry of firearms at polling places and instruction on verification of absentee ballot signatures, Bridge Michigan reports.

Those cases also centered on Benson circumventing the public vetting process in the Administrative Procedures Act.