A Michigan Court of Claims judge has permanently invalidated Rule R 168.48, a directive issued by Secretary of State Jocelyn Benson that mandated local clerks delete electronic poll book software and all related files within seven days after election certification. The ruling comes just one day before a major election and enforces federal law requiring election records be preserved for 22 months.
Conflict Between State Rule and Federal Law
The case originated when Bridgewater Township Clerk Michelle McQueer challenged Benson’s rule, which directly contradicted federal election law (52 U.S.C. § 20701). While Benson’s rule required deletion of electronic poll book files shortly after certification, federal statute mandates that election officers retain all voting-related records for nearly two years. Willful destruction of such records is a federal crime.
McQueer sought clarification on which law took precedence but received no response from the Secretary of State’s office. This led her to file a lawsuit asserting that the seven-day deletion requirement placed clerks at risk of criminal liability and violated federal law.
Legal Battle and Involvement of Republican Parties
The lawsuit, initially filed by attorney Kevin Kijewski on McQueer’s behalf, gained traction after the Court of Claims denied the state’s motion to dismiss. The Republican National Committee and Michigan Republican Party later intervened as plaintiffs supporting McQueer’s position.
McQueer secured a temporary restraining order protecting her electronic poll book file from the August 4 election, making her the only known clerk in Michigan to retain such data. Other clerks had already deleted their files in compliance with Benson’s rule.
Department of Justice Weighs In
In an unusual move, the U.S. Department of Justice filed a Statement of Interest in the state trial court, affirming that electronic poll book data—including metadata—are federal election records that must be preserved. DOJ’s involvement underscored the federal government’s position that Benson, as Secretary of State, is responsible for ensuring compliance with federal retention laws.
The DOJ’s statement came amid conflicting affidavits from Benson’s data manager, who admitted that the voter lists used on Election Day are not copied into the state database but reconstructed later from change logs. McQueer argued that reconstructing records after deletion does not satisfy the legal requirement to retain original election data.
Benson’s Attempt to Overturn Temporary Order
Despite the temporary restraining order, Benson sought emergency relief from the Court of Appeals to allow deletion of poll book files while the case proceeded. This request bypassed the trial court, violating Michigan court procedural rules. The state claimed that the only harm from the restraining order was a memo instructing clerks not to delete files, while clerks faced potential federal criminal penalties without the order.
Final Judgment: Rule Declared Invalid
The Court of Claims ruled decisively that Rule 168.48 is invalid statewide. The court emphasized that when an administrative rule conflicts with a statute, the statute must control. Consequently, electronic poll book files and their metadata must be preserved for 22 months in compliance with federal law.
The court ordered Secretary Benson to issue new instructions to all 1,520 Michigan clerks mandating that poll book files be transferred onto encrypted flash drives and securely stored for the required retention period. The court found the cost burden to be minimal, estimating no more than $100 per additional flash drive.
Significance of Metadata and Preservation
One critical aspect of the ruling was the court’s recognition that retaining metadata—the detailed logs and timestamps associated with poll book files—is as essential as preserving the data itself. The court agreed with McQueer’s argument that reconstructing records after deletion does not fulfill the legal obligation to retain election records.
Implications and Next Steps
This ruling marks a significant victory for election transparency advocates and sets a precedent for Michigan clerks to follow federal law over conflicting state administrative rules. Although Benson may appeal the decision, the court’s judgment stands until overturned by a higher court.
Michelle McQueer’s persistence in seeking clarity on the applicable law and willingness to challenge the Secretary of State’s directive has ensured that critical election records remain intact for future verification and audits.
Conclusion
The Michigan Court of Claims’ decision underscores the supremacy of federal election record retention laws over conflicting state rules. By invalidating Benson’s deletion mandate, the court has reinforced the legal obligation to preserve electronic poll books and their metadata for 22 months, safeguarding election integrity. This case highlights the importance of vigilant oversight and legal advocacy in maintaining transparent and accountable election processes.
Source: Read the original reporting.
