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Each election day holds its own unique challenges – high voter turnout, technology delays, spoiled absentee voters’ ballots – which can be further amplified by active challenges to voter credentials and election processes. However, the presence of election challengers within a precinct or absent voter counting board does not have to derail your municipality’s election processes.

This e-letter explains what election challengers are, what powers they have, and provides strategies that election inspectors can use to facilitate a transparent and efficient election process amid potential election challenges.

What is an Election Challenger?

An election challenger is an individual appointed by a political party, incorporated organization, ballot question committee, or a group of citizens organized for the purpose of preserving the purity of elections. The bar to become an election challenger is quite low. In fact, unless the person is running for office or an election inspector, any registered elector is eligible to become an election challenger.

An eligible person becomes a challenger upon receiving a credential from his or her sponsoring organization. Once credentialed, the challenger is assigned by his or her sponsoring organization to precincts, early voting sites, absent voter counting boards, or even the local clerk’s office (during preprocessing times). If the challenger is to be assigned to multiple precincts, the sponsoring organization must indicate which ones.

What Rights Do Election Challengers Have?

Election challengers are imparted with the following rights under the Michigan Election Law:

• Inspect (without handling) the poll books as ballots are issued to electors and the elector’s names being entered into the pollbook;
• Observe the manner in which the duties of election inspectors are being performed;
• Challenge the voting rights of a person who the challenger has good reason to believe is not a registered elector;
• Challenge an election procedure that is not being properly performed;
• Bring to an election inspector’s attention any of the following:
  1. Improper handling of a ballot by an elector or election inspector;
  2. A violation of a regulation made by the board of election inspectors;
  3. Campaigning being performed by an election inspector or other person in violation of MCL 168.744
  4. Violation of election law or other prescribed election procedure
• Remain during the canvass of votes and until the statement of returns is duly signed and made
• Examine without handling each ballot as it is being counted
• Keep records of votes cast and other election procedures as the challenger desires
• Observe the recording of absent voter ballots on voting machines.

MCL 168.733(1).

However, they are not permitted to:

• Engage in disorderly conduct;
• Speak with or interact with voters;
• Intimidate or threaten voters, see MCL 168.733(4);
• Intimidate or threaten election inspectors;
• Make repeated impermissible challenges;
• Physically touch ballots;
• Stand so close to the pollbook so as to interfere with the election inspector’s duties;
• Take video or audio recordings at their designated location in violation of the Michigan Election Law;
• Campaign for any candidate or ballot question in the precinct, including by wearing clothing relative to the issue;
• Assist or offer to assist voters;
• Be intoxicated at the polling location, early voting site, or absent voter counting board. See MCL 168.733(3).

A challenger who engages in any of these impermissible behaviors should be warned by the election inspector or challenger liaison. The warning should be recorded in the poll book. If the challenger continues to engage in such conduct or commits an egregious violation, he or she can be removed from the precinct or processing location.

Monitoring Election Challengers

Each precinct and processing location must have a challenger liaison. Generally, this is the precinct chairperson or most senior clerk staff at the processing location, unless a different person has been designated by the local clerk.

The challenger liaison is the point of contact for the election challengers at the polling location. Upon arriving at the precinct or processing location, election challengers must identify themselves and show their credentials to the challenger liaison. The challenger liaison is responsible for directing the election challengers to stand in certain locations and are responsible for regulating their behavior. Should an election challenger fail to abide by the challenger liaison’s instructions or engage in disruptive, intimidating, or prohibited behavior, the challenger liaison can order them to be removed from the premises.

Additionally, the challenger liaison is responsible for receiving election challenges and determining whether they are permissible or impermissible. If a challenge is permissible, the challenger liaison must record the following within the paper pollbook and e-pollbook:

• Challenger’s name;
• Time of challenge;
• Substance of the challenge;
• If rejected, the reason why the challenge was rejected; or
• If accepted, the reason why the challenge was accepted (and, as it relates to challenges to election processes, any remedial actions taken in response).

Impermissible challenges are ones outside the scope of what is a permissible basis to issue a challenge and need not be recorded within either pollbook. However, they may be recorded at the challenger liaison’s discretion.

Election Challenges

Election challengers can bring different types of challenges, depending on their designated location. Within precincts and polling locations, a challenger can challenge an elector’s eligibility or the election process. Within absent voter counting places, a challenger can only raise a challenge to ensure that review of any portion of the absentee voter’s ballot envelope has been properly completed.

This e-letter focuses on election challenges at the precinct and does not address challenges that may take place at the absent voter counting board or processing location.

            Challenges to an Elector’s Eligibility

To challenge an elector’s eligibility, the challenger must have good reason to believe the person is not a registered voter or ineligible to vote. To do so, the challenger must cite one of the following four reasons to indicate that the person is not eligible:

• The person is not registered to vote;
• The person is less than 18 years old on election day;
• The person is not a United States citizen;
• The person has not lived in the City or Township where they are attempting to vote for more than 30 days prior to the election.

If the challenger fails to cite one of those bases, the challenge is impermissible. This means that challenges to a voter’s eligibility based upon race; gender identity; failure to read, write, or speak English; or need for assistance with the election process cannot serve as a basis to challenge a voter’s eligibility and need not be recorded. Further, a voter’s eligibility cannot be challenged for lack of identification if they complete an Affidavit of Voter Not in Possession of Picture ID.

However, permissible challenges must be addressed by the challenger liaison before the person votes. The precinct chairperson should take the following actions to verify the elector’s eligibility:

• Swear the voter in as follows: “I swear (or affirm) that I will truly answer all questions put to me concerning my qualifications as a voter.”
• Ask the voter questions to verify (1) their age; (2) whether he or she is a United States citizen; (3) whether he or she has resided in the municipality for more than thirty days; (4) whether they have registered to vote.
• If the voter has affirmed each of the four elements to vote, the challenge is rejected and the person is permitted to cast a challenged ballot.
• If the voter does not affirm their eligibility, the challenge is accepted and the voter is not allowed to cast a ballot.

Determination of a voter’s eligibility may not be appealed on Election Day.

            Challenge to the Election Process

A challenger can challenge an election process by stating an element or elements of the process that the challenger believes are being improperly performed, as well as the basis for his or her belief. An election process challenge should explain how the process should be properly performed, though does not necessarily need to cite a statute or election materials.

Challenges to the election process can be appealed to the municipal clerk. If an appeal is denied, it can be subsequently appealed to the Bureau of Elections.

Tips for Handling Election Challengers

Election challengers are a statutorily protected part of the election process. They are meant to be utilized to ensure that elections are conducted in line with the law and without bias. They are a defense for democracy, as opposed to a weapon against it.

However, political turmoil can lead to tension within the polling environment, which may be amplified by the presence of an election challenger. In such circumstances, it is essential that procedures are in place to minimize any perceived effects of the election challenger to the election process.

Municipalities should consider the following when determining how to facilitate election challengers:

• Carefully select your challenger liaison. Your challenger liaison should not only be very familiar with election processes and requirements, but should also be courteous, patient, and assertive. Challengers are a part of the election process and should be treated as guests, as opposed to obstacles. If a challenge is made, the challenger liaison should be attentive and able to discern if it is permissible or impermissible. The challenger liaison should be able to field any questions, concerns, or outbursts from the challenger in a calm and collected manner. He or she should be willing to listen and ask questions. Additionally, the challenger liaison should have the skills and experience to de-escalate disorderly conduct or determine whether additional support is needed to remove the challenger from the premises.
• Set expectations early on for the election challenger. Address how challenges will be considered, where they will be considered, and any methods that may be available to appeal the determination.
• Require the election challenger to wear a name tag. This is permitted under the Michigan Secretary of State guidance and alleviates any potential to confuse the election challenger with a voter. In precincts, the name tag should indicate the individual’s name and status as an election challenger only.
• Designate a place within the precinct for the election challenger to stand and for challenges to be made. This should be out of the way of the election workers and voters, though still allow the election challenger to observe the process. The challenger should be informed that the basis of challenges should be made at the designated location.
• Ensure that election workers understand the rights and limitations of election challengers so as to be able to identify what conduct is permissible or impermissible.
• Establish procedures for election workers to use if an election challenger is being disruptive or engaging in disorderly conduct. These procedures should provide for a chain of command and give examples of situations in which a warning should be issued to the election challenger and situations in which removal is warranted. A printed copy of these procedures should be available for reference at polling locations or processing facilities.
• Do not be afraid to enforce the provisions of the Election Law, but do so respectfully. Election challengers do not have a free pass to engage in any behavior at polling locations, early voting sites, and absent voter counting boards. If an election challenger does engage in prohibited behavior, respectfully pull them to the side and have a discussion about why their behavior is impermissible and cannot be allowed going forward.

Conclusion

Election Days are busy. They require manpower, processes, and perfection. The thought of dealing with an election challenger on top of everything else can be daunting. However, it should not be. Like any other part of the election process, their impact can be minimized with a well-trained staff and proper procedures in place. Therefore, treat their presence simply as a part of the election process – nothing out of the ordinary.

By Hannah Stocker

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.