2020-10-20 - Plaintiff - Motion For Emergency Injunction

Plaintiffs Thomas Lambert, Michigan Open Carry, Inc., Michigan Gun Owners, Inc.
, and
Michigan Coalition for Responsible Gun Owners, Inc. (collectively, “Plaintiffs”), by and through their
respective attorneys, moves this Court, to set a hearing on an emergency basis, pursuant to MCR 3.310,
and applicable law for entry of a preliminary injunction against Defendants Joycelyn Benson, in her
official capacity as Secretary of State for the State of Michigan; Dana Nessel, in her official capacity as
Michigan’s Attorney General; and, Col. Joe Gasper, in his official capacity as Director of the Michigan
State Police (collectively, “Defendants”). Specifically, Plaintiffs seek an order enjoining Defendants, and
any law enforcement officers and prosecuting attorneys from either directly or indirectly:
1) Enforcing Secretary of State Joycelyn Bensons pronouncement titled “Open Carry of
Firearms at Polling Places on Election Day Prohibited”, and any purported prohibitions
contained within the document or any similar subsequent prohibition;
In support of this Motion, Plaintiffs rely upon and incorporates its Verified Complaint for
Declaratory and Emergency Injunctive Relief and the accompanying Brief in Support of this Motion.
Because there are only legal questions at issue, Plaintiffs respectfully request that this Court consolidate
the preliminary injunction hearing with the trial on the merits and rule on the merits in accordance with
MCR 3.310(A)(2).
Expedited consideration of this motion is necessary because the relief requested will be of limited
effect before the motion is briefed under the usual briefing schedule, Plaintiffs will suffer irreparable harm
that will be unable to remedy through injunctive relief if delayed.
WHEREFORE, Plaintiffs respectfully request that Court grant their Motion for immediate
consideration, schedule a expedited hearing on Plaintiffs’ motion for issue a preliminary injunction
pending a decision on the merits of Plaintiffs’ claims in this matter.
2
A proposed Order is tendered herewith as Tab 1 for the convenience of the Court.
Dated: October 22, 2020
Respectfully submitted,
DEAN G. GREENBLATT, PLC LAW OFFICES OF

STEVEN W. DULAN PLC
/s/ Dean G. Greenblatt (P54139)
4190 Telegraph Road, Suite 3500 /s/ Steven W. Dulan (P54914)
Bloomfield Hills, MI 48302 1750 E. Grand River Ave.
(248) 644-7520 Suite 101
dgg@mnsi.net East Lansing, MI 48823-4958
Attorney for Plaintiffs Lambert (517) 333-7132
and, Michigan Open Carry, Inc. swdulan@stevenwdulan.com
Attorney Michigan Coalition for Responsible
Gun Owners, Inc.
LAW OFFICE OF TERRY L. JOHNSON
PLLC
/s/ James J. Makowski (P62115)
/s/ Terry L. Johnson (P79773) 6528 Schaefer Road
Co-counsel for Michigan Open Carry, Inc. Dearborn, MI 48126
terryljohnson00@gmail.com (313) 434-3900
613 Abbott Street, Suite 100 jmakowski@makowskilegal.com
Detroit, MI 48226-1348 Attorney for Plaintiff Michigan Gun Owners,
(313) 421-6193 Inc.
3
Emergency Motion for Declaratory
and Injunctive Relief
Proposed Order
TAB 1
STATE OF MICHIGAN
IN THE COURT OF CLAIMS
THOMAS LAMBERT, an individual; )

MICHIGAN OPEN CARRY, INC., )
a Michigan not-for-profit corporation; )
MICHIGAN GUN OWNERS, )
a Michigan not-for-profit corporation; and, )
MICHIGAN COALITION FOR )
RESPONSIBLE GUN OWNERS, )
a Michigan not-for-profit corporation )
)
Plaintiffs, ) Case No. _______________________
v. )
) Honorable: _______________________
JOYCELYN BENSON, in her )
official capacity as Michigan Secretary of State )
DANA NESSEL, in her official capacity )
as Michigan Attorney General; and, )
COL JOE GASPER, )
in his official capacity as Director of the )
Michigan State Police )
)
Defendants. )
ORDER RE: MOTION FOR HEARING ON PRELIMINARY INJUNCTION
At a session of Court held in the City of Lansing, Michigan on this _____ day of October,
2020
PRESENT: HONORABLE __________________________________________
This matter having come before this court pursuant to Plaintiffs’ Verified Complaint,
Plaintiffs’ Motion for Emergency Preliminary Injunction, and Brief in Support thereof, and the
Court being fully advised in the premises;
NOW, THEREFORE:
1
IT IS ORDERED THAT Defendants, shall appear for a hearing on October _________,
2020, at ________________ or as soon thereafter as counsel may be heard why a preliminary
injunction should not enter according to the terms and conditions as set forth in Plaintiffs’ motion.
The court will supply instructions for the parties to appear remotely via electronic means.
IT IS SO ORDERED __________________________________________
Judge of the Court of Claims
2
FACTS
Plaintiffs in this case include individuals and firearm rights organizations that represent
many thousands of members who choose to openly carry firearms into polling places on Election
Day as a means of expressing their viewpoint on the Second Amendment. Indeed, Plaintiff
Michigan Open Carry, Inc. (“MOC”) was incorporated with a stated mission to educate the public
and all law enforcement agencies on the right to open carry a firearm and to promote its practice.1
This was not a popular viewpoint in this state when MOC was incorporated in 2009. However,
now it is also a common practice for open carriers after leaving the polls to affix an “I Voted” sticker
on their holster. The open carrier then posts a picture of their stickered holstered pistol on social
media as a form of political expression and viewpoint-based speech. (See Exhibit 1)2
On October 16, 2020, seventeen days before the general election, Michigan’s Secretary of
State, Joycelyn Benson, issued the Pronouncement titled “Open Carry of Firearms at Polling Places
on Election Day Prohibited” (See Exhibit 2)3. The Pronouncement declares ipse dixit, that “[t]he
presence of firearms at the polling place, clerk’s office(s), or absent voter counting board may cause
disruption, fear, or intimidation for voters, election workers, and others present”4 and that “[t]he
open carry of a firearm is prohibited in a polling place, in any hallway used by voters to enter or
exit, or within 100 feet of any entrance to a building in which a polling place is located”. Also
banned are firearms in clerk’s offices, spaces occupied by voter counting boards and hallways used
1
https://miopencarry.org/about.
2
Also see https://www.facebook.com/groups/MichiganOpenCarry/permalink/2028110873893519/;
https://www.facebook.com/MichiganOpenCarry/posts/10156271059711234;
https://www.facebook.com/MichiganOpenCarry/posts/10153506407146234; and,
https://www.facebook.com/MichiganOpenCarry/posts/10152888447136234 as exemplars
3
See also at https://www.michigan.gov/documents/sos/BOE_Open_Carry_Polling_Place_Instructions_10_16_2020_705274_7.pdf.
4
The pronouncement references no support for these suppositions.
2
to gain entry to polls. The Pronouncement orders “[e]lection inspectors [to] post signage providing
notice of this regulation inside the room containing the polling place and at the building entrance.
Notice may also be posted at 100 feet at the discretion of the local clerk.”5
Defendant Attorney General Dana Nessel pledged to support enforcement of the firearm
ban and contemporaneously issued a memorandum to the Michigan State Police, Michigan
Association of Police Chiefs, Michigan Sheriffs Association and Prosecuting Attorneys Association
of Michigan acknowledging that “[t]he Secretary of State has issued a directive under the authority
granted her by MCL 168.21 and MCL 168.31, that prohibits the open carry of firearms inside a
polling location, a clerk’s office, or an absent voter counting board, or within 100 feet of a polling
location, a clerk’s office, or an absent voter counting board.”6 (See Exhibit 3) As reported by The
Detroit News, Wayne County Sheriff Benny Napoleon has threatened to arrest people found to be
in violation of the ban if they refuse to leave [polling places].7 (See Exhibit 4).
The office of the Secretary of State is a constitutionally created elected office within the
executive branch of state government.8 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. Rather, those powers are specifically limited to the Legislature.
“Except as otherwise provided in this constitution or in the constitution or laws of

the United States the legislature shall enact laws to regulate the time, place and
manner of all nominations and elections, to preserve the purity of elections, to
preserve the secrecy of the ballot, to guard against abuses of the elective franchise,
and to provide for a system of voter registration and absentee voting.” Mich. Const.
Art. II, § 4(2)
5
Note that the Secretary of State, herself, has identified the firearm prohibition as a “regulation”.
6
Note that the Attorney General has identified the firearm prohibition as a “directive”.
7
https://www.detroitnews.com/story/news/politics/2020/10/19/michigan-police-chiefs-leader-open-carry-ban-polls-not-based-law/3713235001/
8
Mich. Const. Art. V, § 3.
3
On one hand, in Michigan, the use or display of a firearm to intimidate is already unlawful
under Michigan Law. Anyone convicted of “brandishing” a firearm in public faces imprisonment.9
"Brandish" means to point, wave about, or display in a threatening manner with the intent to induce
fear in another person.10 Further, voter intimidation is already unlawful under the Michigan
Election Law, , MCL 168.1 et seq. So, the Pronouncement is designed to go beyond that which is
already criminalized. On the other hand, concealed pistol licensees are expressly permitted to carry
firearms anywhere in the State that is not otherwise prohibited under law.11 Polling places, clerk’s
offices and spaces for the counting of ballots are not listed as so-called pistol restricted zones under
Michigan’s Firearms Act12 or the Penal Code13.
ARGUMENT
The Pronouncement is not law. The Pronouncement does not override existing Michigan
law. For reasons explained in this Brief, the Pronouncement is an ultra vires act and void.
However, even if void, the effect of the Pronouncement has a chilling effect on the fundamental
rights of open carriers and invites the court’s intervention. If not void for lack of constitutional or
statutory authority, the regulation or directive appears to be a “Rule”14 under Michigan’s
Administrative Procedures Act15 (“APA”). However, the Pronouncement was issued without
regard to, or compliance with, any of the requirements of the APA and is therefore void. The APA
specifically provides for court intervention in such circumstances.16
9
MCL 750.234e
10
MCL 750.222
11
MCL 28.425c(3)
12
MCL 28.425o
13
MCL 750.234d
14
MCL 24.207
15
MCL 24.201 et. seq.
16
MCL §24.306(1)
4
Plaintiffs seek an expedited hearing on, and move the court for a preliminary injunction to
prevent the Michigan Secretary of State, the Michigan Attorney General, and the Director of the
Michigan State Police, their employees and agents, law enforcement officers and prosecutors from
engaging in any acts to promote or enforce any ban on the possession of firearms carried in any
lawful manner on Election Day.
I. PENDING DECLARATORY JUDGMENT, THE COURT SHOULD MAINTAIN

STATUS QUO OF PARTIES
Plaintiffs request the Court to determine whether the Pronouncement is valid and
enforceable. Pending the determination by the Court of that issue, it is important that the status
quo of the parties be maintained. The Court has broad equitable powers to temporarily enjoin the
conduct of the parties until such final order is issued declaring the relative rights and obligations
of the parties.
As detailed above, Michigan law already prohibits voter intimidation and brandishing
firearms. Voters in Michigan have been able to possess lawfully-carried firearms while voting
since Michigan’s admittance as a State. The Pronouncement fundamentally changes the status
quo.
II. ALL OF THE PERTINENT FACTORS WEIGH IN FAVOR OF GRANTING

RELIEF IN THIS CASE
“A preliminary injunction may be granted under MCR 3.310(A) where plaintiff can make
a particularized showing of irreparable harm that will occur before the merits of the claim are
considered.” Lash v Traverse City, 479 Mich 180, 196; 735 NW2d 628 (2007). “Injunctive relief
is an extraordinary remedy that issues only when justice requires, there is no adequate remedy at
law, and there exists a real and imminent danger of irreparable injury.” Kernen v Homestead Dev
5
Co, 232 Mich App 503, 509; 591 NW2d 369 (1998). The Michigan Supreme Court has established
the following four-factor analysis to determine whether a preliminary injunction should be issued:
(1) the likelihood that the party seeking the injunction will prevail
on the merits; (2) the danger that the party seeking the injunction
will suffer irreparable injury if the injunction is not issued; (3) the
risk that the party seeking the injunction would be harmed more by
the absence of an injunction than the opposing party would be by
the granting of the relief; and (4) the harm to the public interest if
the injunction is issued.
Campau v McMath, 185 Mich App 724, 729; 463 NW2d 186 (1990) (citing Michigan State
Employees Ass'n v Dep' of Mental Health, 421 Mich 152, 157-158; 365 NW2d 93 (1984)).
For preliminary injunctions, a hearing is required.
According to MCR 3.310(A)(1), unless otherwise provided by

statute or court rule, an injunction may not be granted without a
hearing. At this hearing, "the party seeking injunctive relief has the
burden of establishing that a preliminary injunction should be issued
. . .." If a court grants preliminary injunctive relief, a trial on the
merits must be held within six months of the injunction issuing,
except for good cause or a stipulation from the parties to extend the
time. Given the extraordinary nature of injunctive relief, our court
rules contemplate expeditious resolution of the underlying claim or
claims once a preliminary injunction issues.”
Pontiac Fire Fighters, 482 Mich at 9.
Additionally, MCR 3.310(C)(1) declares that an order granting an

injunction must set forth the reasons for its issuance. Although it is
not compulsory for a trial court to hold an evidentiary hearing before
the issuance of an injunction, some formal hearing is required.
Fancy v Egrin, 177 Mich App 714, 722; 442 NW2d 765 (1989). If
a party's entitlement to the injunction can be established in a
particular case by argument, brief, affidavits or other forms of
nontestamentary evidence, the trial court need not take testimony at
the hearing. Id., p 723. The trial court must, however, conduct an
evidentiary hearing where the circumstances of the case require such
a hearing. Id.
Campau, 185 Mich App at 727; 463 NW2d 186 (1990).
6
Plaintiffs also seek declaratory judgment under MCR 2.605. “(1) In a case of actual
controversy within its jurisdiction, a Michigan court of record may declare the rights and other
legal relations of an interested party seeking a declaratory judgment, whether or not other relief is
or could be sought or granted.” MCR 2.605(A)(1). “[A]n ‘actual controversy’ exists for the
purposes of a declaratory judgment where a plaintiff pleads and proves facts demonstrating an
adverse interest necessitating a judgment to preserve the plaintiff's legal rights.” Lash, 479 Mich
at 196.
There are no contested facts here. Exhibit 2 speaks for itself. The Defendants cannot
seriously make an argument that they are contesting any of these statements the Plaintiffs make
about restriction on carrying firearms on Election Day. As a result, this case is appropriate for
consolidation of the preliminary injunction and hearing on the merits pursuant to MCR
3.310(A)(2).
A. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
1. The Secretary of State’s Ban on Firearm Possession is an ultra vires act; a)

a violation of Michigan’s Administrative Procedures Act; and b) a violation of
Michigan’s constitutional separation of powers.
a) Michigan’s Administrative Procedures Act of 1969; MCL§24.201,

et.seq.
As detailed above, the office of the Secretary of State is a constitutionally created elected
office within the executive branch of state government17. “The secretary of state shall be the chief
election officer of the state and shall have supervisory control over local election officials in the
17
Mich. Const. Art. V, §3
7
performance of their duties under the provisions of this act.” MCL §168.21. More specifically, the
Secretary of State’s duties as to elections are explained MCL §168.31. However, the statute
requires that the Secretary of State “issue instructions and promulgate rules pursuant to the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, for the conduct of
elections and registrations in accordance with the laws of this state.” MCL §168.31(1)(a).
The Administrative Procedures Act of 1969 (“APA”) applies to any “Agency” of the state.
This includes a state department, bureau, division, section, board, commission, trustee, authority or
officer, created by the constitution, statute, or agency action. MCL §24.203(2). The Secretary of
State is a state officer created by the Michigan Constitution. Mich. Const. Art. V, §3. A “Rule”
“means an agency regulation, statement, standard, policy, ruling, or instruction of general
applicability that implements or applies law enforced or administered by the agency, or that
prescribes the organization, procedure, or practice of the agency, including the amendment,
suspension, or rescission of the law enforced or administered by the agency.” MCL §24.207.
Michigan created the Office of Regulatory Reform to prescribe procedures and standards for the
drafting of rules, publication of required notices, and distribution of rules.18 MCL §24.236. An
agency shall not proceed with the processing of a rule outlined in this chapter unless the office of
regulatory reinvention has approved the request for rule-making. The office of regulatory
reinvention is not required to approve a request for rule-making and shall do so only after it has
indicated in its response to the request for rule-making submitted by an agency that there are
appropriate and necessary policy and legal bases for approving the request for rule-making. MCL
§24.239(3). An agency must publish a notice of public hearing on any proposed rule, and may not
18
Michigan’s Office of Regulatory Reform was created in 1969, then transferred to the Michigan Office of
Administrative Hearings and Rules, then renamed the Office of Regulatory Reinvention and most recently
transferred within the Department of Licensing and Regulatory Affairs by executive order of the Governor on
February 4, 2019.
8
do so until submitting a proposed rule to the committee and receiving a grant of approval by the
committee. That committee must then deliver a copy of the proposed rule to members of the
standing committees of the senate and house of representatives that deal with the subject matter of
the proposed rule. MCL §24.239a19. Before the adoption of a rule, an agency, or the office, shall
give notice of a public hearing and offer a person an opportunity to present data, views, questions,
and arguments. The notice must be given within the time prescribed by any applicable statute, or if
none, in the manner prescribed in section 42 of the APA. MCL §24.241. In anticipation of an
argument that the Secretary of State may promulgate an emergency rule, an agency must find that
the preservation of the public health, safety, or welfare requires promulgation of an emergency rule
without following the notice and participation procedures required in the APA. MCL §24.248. The
possession of openly-carried firearms creates no credible threat to the preservation of the public
health, safety, or welfare of the residents of Michigan. And, even if the Secretary of State were to
claim otherwise, she did not comply with the filing requirements, the notice requirements, or the
requirement for the governor’s certificate concurring in the finding of emergency. MCL
§24.248(1).
The issuance of the Secretary of State’s October 16th pronouncement failed to comply with
any of the statutory requirements of the APA. In short, the Secretary of State is acting ultra vires.
The APA provides that the court “shall hold unlawful and set aside a decision or order of an agency
if substantial rights of the petitioner have been prejudiced because the decision or order is any of
the following: (a) in violation of the constitution or a statute. (b) in excess of the statutory authority
or jurisdiction of the agency. (c) made upon unlawful procedure resulting in material prejudice to
ta party. (d) not supported by competent, material and substantial evidence on the whole record. (e)
19
Notably, this statute requires the executive branch to involve the legislature in the rule making process.
9
arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion. (f) affected by other
substantial and material error of law.” MCL §24.306(1). It is patently clear that each and all of
these conditions are met in this instance.
b) Michigan’s Separation of Powers:
The Secretary of State, through her office within the executive branch, has breached the
separation of power and directly usurped the constitutional powers of the state legislature where
she has sought to regulate the time, place and manner of an election, to preserve the purity of the
election, or to guard against abuses of the elective franchise. As stated previously, Michigan’s
constitution places all of those powers solely within the legislative branch:
“Except as otherwise provided in this constitution or in the constitution or

laws of the United States the legislature shall enact laws to regulate the time, place
and manner of all nominations and elections, to preserve the purity of elections, to
preserve the secrecy of the ballot, to guard against abuses of the elective franchise,
and to provide for a system of voter registration and absentee voting.” Mich. Const.
Art. II, § 4(2)
MCL 168.678 states that: “Each board of election inspectors shall possess full authority to
maintain peace, regularity and order at its polling place, and to enforce obedience to their lawful
commands during any election.” The Act contains no limitation on the power and it such a power
to maintain peace. Adoption of regulations of the type here challenged can be unilaterally exercised
in perpetuity for every election until she decides a new or different regulation is required or desired.
Thus, the SOS’s powers are of indefinite duration, and the no standards govern the SOS’s exercise
of powers. Not even the words “reasonable” or “necessary,” are present though neither of which
could supply genuine guidance to the SOS as to how to exercise the delegated authority nor
constrained her actions in any meaningful manner. Accordingly, MCL 168.678 constituted an
unlawful delegation of legislative power to the executive and was unconstitutional under Const
10
1963, art 3, § 2, which prohibits exercise of the legislative power by the executive branch. See In
re Certified Questions from the United States Dist. Ct., —N.W.2d—, 2020 WL 5877599, at *1
(Mich. Oct. 2, 2020)
The state legislature cannot and has not delegated such power to executive branch officers.
For these reasons, the October 16th pronouncement is without legal authority or effect and is void.
B. PLAINTIFFS WILL SUFFER IRREPARABLE INJURY ABSENT AN

INJUNCTION
If this Court does not grant this injunction, Plaintiffs, and those similarly situated to them,
will suffer irreparable injury by surrendering either their fundamental right to vote or their
fundamental right to self-protection. With just twelve days remaining until Election Day, Plaintiffs
and the general public are at risk of being disenfranchised because of the Pronouncement. Some
law enforcement officers have announced an intention to seek the removal and arrest of voters at
polling places if they are not in compliance with the Pronouncement. Other law enforcement
officials have independently determined that there exists no lawful basis for initiation or
enforcement of the Pronouncement and that they will refrain from enforcing same. Indeed, the
Kent County Prosecutor has issued guidance to law enforcement in his jurisdiction acknowledging
that the Pronouncement “may ensnare people who are doing nothing illegal.” (See Exhibit 5)
This situation will likely lead to voter confusion and intimidation by members of law enforcement
who are called to polling places on Election Day. As detailed in the Verified Complaint in this
case, there are voters who have long expressed their support for their fundamental right to self-
protection by lawfully carrying firearms while voting. Under the Pronouncement, those
individuals will now be turned away from the polls and threatened with arrest when they appear at
the polls to vote on Election Day. This disenfranchisement is without the appropriate notice or
11
compliance with Michigan law or any rule-making process. This will certainly lead to some
instances of voter disenfranchisement on Election Day.
C. GRANTING AN INJUNCTION WILL NOT CAUSE SUBSTANTIAL

HARM TO OTHERS AND IS IN THE PUBLIC INTEREST
Any harm to Plaintiffs in the absence of injunctive relief outweighs any harm to Defendants
if injunctive relief is granted. Defendants will be simply forced to comply with Michigan’s law-
making processes rather than resorting to conjuring rules or edicts without regard to the law or
circumspection. The very purpose of state government is to establish a legal framework with
which elected officials must comply in order to implement law. Injunctive relief would simply
put Defendants into the position that adhering to the requisites of the Michigan Constitution and
statutes. Forcing state government to comply with and remain within the structure of the law is
certainly in the public interest. Plaintiffs are only seeking injunctive relief until the disputed
Pronouncement can be properly construed through Plaintiffs’ request for a declaratory judgment.
Further, a preliminary injunction will sustain the status quo that has persevered since
Michigan’s admission as a state and secure the public interest in the fundamental right to lawful
self-defense. And, it is the timing of the Secretary of State to issue her pronouncement 17 days
before the general election that creates the urgency and proximate need for injunctive relief. This
Court should therefore issue a preliminary injunction while the case is being litigated.
CONCLUSION
For the foregoing reasons, this Court should grant Plaintiffs’ request for an expedited
hearing on their Emergency Motion for Declaratory and Injunctive Relief and direct the Secretary
of State, the Attorney General and the Director of the Michigan State Police to suspend
12
implementation of all aspects of the Secretary of State’s October 16th pronouncement denying
possession of firearms on Election Day.
Dated: October 22, 2020

Respectfully submitted,
DEAN G. GREENBLATT, PLC LAW OFFICES OF
STEVEN W. DULAN PLC
/s/ Dean G. Greenblatt (P54139)
4190 Telegraph Road, Suite 3500 /s/ Steven W. Dulan (P54914)
Bloomfield Hills, MI 48302 1750 E. Grand River Ave.
(248) 644-7520 Suite 101
dgg@mnsi.net East Lansing, MI 48823-4958
Attorney for Plaintiffs Lambert (517) 333-7132
and, Michigan Open Carry, Inc. swdulan@stevenwdulan.com
Attorney Michigan Coalition for
Responsible Gun Owners, Inc.
LAW OFFICE OF TERRY L.
JOHNSON PLLC
/s/ James J. Makowski (P62115)
/s/ Terry L. Johnson (P70773) 6528 Schaefer Road
Co-counsel for Michigan Open Carry, Inc. Dearborn, MI 48126
terryljohnson00@gmail.com (313) 434-3900
613 Abbott Street, Suite 100 jmakowski@makowskilegal.com
Detroit, MI 48226-1348 Attorney for Plaintiff Michigan Gun
(313) 421-6193 Owners, Inc.
13
Brief in Support of Emergency Motion for Declaratory
EXHIBIT 1
EXHIBIT 2
October 16, 2020
Open Carry of Firearms at Polling Places on Election Day Prohibited
In Michigan, an individual’s ability to carry a firearm depends on several factors, such as
whether he or she is licensed to carry a concealed weapon or is exempt from licensure; the
location; whether the weapon is concealed or openly carried; and other circumstances.
The presence of firearms at the polling place, clerk’s office(s), or absent voter counting board
may cause disruption, fear, or intimidation for voters, election workers, and others present.
Absent clear standards, there is potential for confusion and uneven application of legal
requirements for Michigan’s 1,600 election officials, 30,000 election inspectors, 8 million
registered voters, and thousands of challengers and poll watchers on Election Day.
As Michigan’s chief election officer with supervisory control over local election officials in
the performance of their duties, the Secretary of State issues the following directions to
clarify that the open carry of firearms on Election Day in polling places, clerk’s office(s),
and absent voter counting boards is prohibited; to provide additional guidance to election
workers if they encounter individuals with firearms at or near polling places, and to secure the
full and free exercise of the right to vote. The Secretary of State is coordinating with the
Attorney General and state and local law enforcement to ensure uniform enforcement of these
requirements.
Within 100 feet of a polling place, clerk’s office(s), or absent voter counting board
• The open carry of a firearm is prohibited in a polling place, in any hallway used by
voters to enter or exit, or within 100 feet of any entrance to a building in which a
polling place is located. A person may leave a firearm inside a vehicle parked within 100
feet of the building when visiting these locations if otherwise permitted by law to possess
the firearm within the vehicle.
• Concealed carry of a firearm is prohibited in any building that already prohibits
concealed carry unless an individual is authorized by the building to do so.
• Election inspectors should contact law enforcement immediately if these prohibitions are
violated. The prohibition on open carry does not apply to law enforcement officers acting
in the course of their duties.
Outside 100 feet of a polling place, clerk’s office(s), or absent voter counting board
BUREAU OF ELECTIONS
RICHARD H. AUSTIN BUILDING  1ST FLOOR  430 W. ALLEGAN  LANSING, MICHIGAN 48918
Michigan.gov/Elections  517-335-3234
• Outside of 100 feet of a polling place, if any person is acting in a way that would tend to
intimidate, hinder or impede voters on the way to the polls, election inspectors should
immediately contact law enforcement.
Signage and Contacting Law Enforcement
• Election inspectors must post signage providing notice of this regulation inside the room
containing the polling place and at the building entrance. Notice may also be posted at
100 feet at the discretion of the local clerk.
• Clerks should contact local police departments and county sheriffs in advance of election
day to establish points of contact for enforcing this or any other election day regulations.
Required signage:
NOTICE
THE OPEN CARRYING OF A FIREARM IS PROHIBITED IN A POLLING PLACE,
INSIDE ANY HALLWAY USED BY VOTERS TO ENTER OR EXIT A POLLING
PLACE, AND WITHIN 100 FEET OF AN ENTRANCE TO A BUILDING CONTAINING
A POLLING PLACE ON ELECTION DAY. OUTSIDE OF 100 FEET, NO PERSON
CAN ACT IN A WAY THAT WOULD TEND TO INTIMIDATE, HINDER OR IMPEDE
VOTERS ON THEIR WAY TO THE POLLING PLACE. THESE PROHIBITIONS
ALSO APPLY TO AN ELECTION CLERK’S OFFICE OR ABSENT VOTER
COUNTING BOARD ON ELECTION DAY.
EXHIBIT 3
STATE OF MICHIGAN
DEPARTMENT OF ATTORNEY GENERAL
DANA NESSEL
ATTORNEY GENERAL
MEMORANDUM
October 16, 2020
TO: Michigan State Police

Michigan Association of Police Chiefs
Michigan Sheriffs Association
Prosecuting Attorneys Association of Michigan
FROM: Danielle Hagaman-Clark

Acting Chief of the Criminal Trials and Appeals Division
Re: Election Day (Security & Integrity Guidance)
As November 3, 2020 – Election Day – quickly approaches, we wanted to take this

opportunity to thank you for your commitment to helping safeguard our elections
process and for helping to ensure that every eligible voter has the opportunity to
exercise their right to vote in a safe manner. Regardless of where voters cast their
ballots, all law enforcement agencies are committed to ensuring,
• that everyone who is eligible to vote, has the ability to cast their vote and have
it be counted.
• that those who choose to appear in person to cast their ballots can do so free
from intimidation and harassment.
• that those who are observing the polls do so in accordance with the law; and
• that all participants and observants abide by the laws of this state during the
election process.
We anticipate that in the run up to the election – and on Election Day –there may
be questions about our election laws. Accordingly, we have prepared legal guidance
to try to help with some of the issues that you may encounter. In addition, the
Department of Attorney General will have a phone line staffed by prosecutors on
Election Day, exclusively for use by law enforcement agencies. Should you have a
question or concern, please feel free to call our office at 313-456-0180. This
number is for law enforcement purposes only related to Election Day concerns. We
will make sure that an attorney is available to assist you.
As an initial matter, it’s important to note that, under MCL 168.940 and 168.941,
county prosecutors and law enforcement agencies have a duty to investigate alleged
criminal violations of Michigan election law, and in appropriate cases, pursue
appropriate enforcement action. These statutes read as follows:
“It is hereby made the duty of any police, sheriff or peace officer, present and
having knowledge of any violation of any of the provisions of this act, to
forthwith institute criminal proceedings for the punishment of such offender.”
(MCL168.941)
“It is hereby made the duty of every prosecuting attorney, whenever he shall
receive credible information than any such offense has been committed, to
cause the same to be prosecuted.” (MCL 168.940)
You should also be aware that, pursuant to MCL 168.678, each board of election
inspectors “shall possess full authority to maintain peace, regularity and order at its
polling place, and to enforce obedience to their lawful commands during any election.”
Election inspectors are instructed to contact law enforcement, as appropriate, to ensure
there is no disruption in voting. If you are called, you can assume that it is because the
election inspector has run out of other options to maintain order and law enforcement
intervention is necessary.
BODY WORN CAMERAS
Many law enforcement agencies are equipped with body worn cameras (BWC).
Every agency that employs the use of these devices has adopted policies for when
the camera should be turned off and when it should be recording. Because MCL
168.579 and MCL 168.738 regulate showing a voted ballot to other individuals,
there are some restrictions on the use of camera and video in polling places.
However, law enforcement should abide by the policies their offices have adopted
with regard to BWC and care should be taken not to intentionally record a voter
who is casting his or her ballot.
FIREARMS & VOTER INTIMIDATION
The Secretary of State has issued a directive under the authority granted her by
MCL 168.21 and MCL 168.31, that prohibits the open carry of firearms inside a
polling location, a clerk’s office, or an absent voter counting board, or within 100
feet of a polling location, a clerk’s office, or an absent voter counting board, with the
exception of law enforcement officers. The laws related to carrying concealed still
apply. Because there are certain public places that are often used as polling
locations where carrying concealed is not allowed, law enforcement should be
familiar with those locations. MCL 28.425o prohibits the carrying of concealed
weapons on or in the following premises: A school or school property; a public or
private child care center or day care center, public or private child caring
institution, or public or private child placing agency; a sports arena or stadium; any
property or facility owned or operated by a church, synagogue, mosque, temple, or
2
other place of worship; an entertainment facility with a seating capacity of 2,500 or
more individuals; a hospital; or a dormitory or classroom of a community college,
college, or university. It should be noted that a CPL holder can receive express
permission from the church to carry concealed on church property.
If a person openly carries a firearm outside the 100-foot buffer zone, there are still
potential crimes that could be committed. For example, voter intimidation is a crime
even beyond the 100-foot buffer zone, irrespective of what activity the armed person
purports to be engaging in. When deciding whether a person should be arrested for
a firearms offense, you should consider the following:
o Have you received notification that voters are afraid to enter the
polling location because of the presence of armed individual(s)?
o Have you received notification from the precinct inspectors1 that they
are concerned with the presence of armed individual(s)?
o Have you tried to educate the individual by explaining that his or her
behavior is intimidating some voters into forgoing their right to vote
because they are afraid and that is a crime under Michigan law (e.g.
MCL 168.932(a) which makes it a felony to “deter” or “interrupt” an
elector from voting)?
o What actions are being taken or what statements are being made by
the individual to indicate a specific intent to harass or intimidate?
o Is the individual from the area and what does he or she say their
purpose is for standing outside the polls armed with a gun?
Scenario Law Enforcement Likely to Encounter
Law enforcement is called to the polling location by either a voter attempting to

enter the polling place or by a precinct inspector who reports that a group of armed
individuals are outside the polling location causing voters to leave without casting a
ballot because they are afraid or intimidated.
MCL 168.932(a), makes it a felony for: “[a] person shall not attempt, by
means of bribery, menace, or other corrupt means or device, either directly or
indirectly, to influence an elector in giving his or her vote, or to deter the
elector from, or interrupt the elector in giving his or her vote at any election
1MCL 168.678 provides a board of election inspectors with “full authority to

maintain peace, regularity and order at its polling place and to enforce obedience to
their lawful commands during any primary or election and during the canvass of
votes after the poll is closed.”
3
held in this state.” It is a crime for a person to menace a voter at or near a
polling place with the intent to influence their vote or deter them from voting.
To determine if an individual is attempting to influence a voter you should consider

if the person is voting himself or if they are standing for an extended period of time
at or near a polling place openly carrying a firearm. Officers should utilize their
discretion to determine if such circumstances exist that might implicate MCL
168.932(a) and, only utilize his or her arrest power as a last resort.
The decision to arrest should only be made after a careful analysis of the facts
known to the officer. Every attempt at education and deterrence should be utilized
first, with arrest as the last available option. Our office is available for consultation
should you encounter this type of situation.
It is worth noting that under federal law 18 U.S.C. § 592, it is illegal to order, keep,
or have under one’s control any troops or armed men at any polling place in a
general or special election, if one is a civil or military officer or employee of the
United States government.
Groups of Armed Individuals Outside 100 foot Zone
Special consideration should be given to groups of armed individuals who are

outside the 100-foot safety barrier. When deciding if the group is acting in an
intimidating fashion you should consider the following:
o The number of people grouped together
o The amount of coordination between members of the group – are they

wearing clothing that identifies them? Are they positioning themselves
with any coordinated effort?
o How are they dressed? Are they in “full kit?”
o Are they yelling, screaming or being loud?
o How are they holding their weapons?
o How close to the 100 foot zone are they positioned?
o What is the size, caliber, appearance of the weapon?
ELECTIONEERING
Michigan law prohibits a person from posting, displaying, or distributing inside a

polling place or any hallway used by voters to enter or exit a polling place, or within
100 feet of an entrance to a building in which a polling place is located, “any
4
material that directly or indirectly makes reference to an election, a candidate, or a
ballot question.” Note, while this restriction applies to candidates and ballot
proposals appearing on the ballot at this election, it does not apply to official
election materials that are required by law to be posted, displayed, or distributed in
a polling place on Election Day.
To determine if a person or groups of people are violating the law as it relates to the
100 feet rule it may be helpful to think about the following:
The following activities are prohibited:
o Displaying “pro and con” information or “vote for/against” materials

regarding the candidates or proposals that appear on the ballot. This
does not include school gear that does not say “vote for/against.”
o Approaching voters to verbally encourage them to vote for or against

any person or question on the ballot.
o Distributing any type of campaign literature or write-in stickers.
o Displaying campaign signs, posters, or bumper stickers.
o Collecting petition signatures.
o Requesting donations, selling tickets or engaging in similar activities.
o Vehicles with campaign signs or bumper stickers must be parked at

least 100 feet from any entrance to the building in which the polling
place is located.
A group of people are standing outside of the polling location, voicing support for or
against a candidate or proposal as voters approach the polling location or clerk’s
office, the group may also be dressed in clothing that supports a candidate for office.
They must be at least 100 feet from the entrance of the polling location or clerk’s
office. If they are not at least 100 feet from the polling location, they are
committing a crime. You should consider their behavior in light of the following
criminal statutes:
MCL 168.744(1) makes it a misdemeanor for any person “in a polling room,
in a compartment connected to a polling room, or within 100 feet from any
entrance to a building in which a polling place is located shall [to] persuade
or endeavor to persuade a person to vote for or against any particular
candidate or party ticket or for or against any ballot question that is being
5
voted on at the election. A person shall not place or distribute stickers, other
than stickers provided by the election officials pursuant to law” in the same
areas.
MCL 168.744(3) makes is a misdemeanor for a person, on election day, to

“post, display, or distribute in a polling place, in any hallway used by voters
to enter or exit a polling place, or within 100 feet of an entrance to a building
in which a polling place is located any material that directly or indirectly
makes reference to an election, a candidate, or a ballot question.”
MCL 168.931(1)(k) makes it a misdemeanor for a person to solicit votes in a

polling place or within 100 feet of polling place on election day.
MCL 168.932(a) makes it a felony for a person to attempt, by means of

bribery, menace, or other corrupt means or device, either directly or
held in this state.
VOTER INTIMIDATION WITHOUT WEAPONS
Voter intimidation can occur without the presence or use of a weapon. For instance,
threatening violence to a voter if he or she votes may rise to the level of
intimidation. Some other ways it is illegal to intimidate or coerce a voter are the
following:
MCL 168.932(a) makes it a felony for a person to “attempt, by means of

bribery, menace, or other corrupt means or device, either directly or
held in this state.”
Every situation must be evaluated in terms of the impact the behavior is having on
the voter but the statute criminalizes the defendant’s behavior. All of the facts and
circumstances are relevant to a determination of the defendant’s intent.
COVID-19 RELATED HEALTH QUESTIONS
Michigan Department of Health & Human Services Emergency Order Under MCL
333.2253 – Gathering Prohibition and Mask Order
(d) Gatherings are permitted for the following purposes notwithstanding the
requirements of subsection (1)(c): (1) Voting or election-related activities at
polling places
6
Masks are not required to be worn in a polling location. However, a poll worker
may ask a voter to temporarily remove his or her mask in orderto verify the voter’s
identity if they’re using a picture ID.
A person complains that other voters are not wearing masks and feels like they
can’t vote safely because of the unmasked individuals. The MDHHS order that
requires masks be worn in public spaces specifically excludes polling places. So,
while the voter may be upset, the law does not require that a voter wear a mask in
order to vote.
POLL WATCHERS AND CHALLENGERS; DISRUPTIONS AT THE POLLS
Elections are an open and transparent process that may be observed by any
interested person.
Election challengers may be appointed by political parties and qualified interest

groups to observe the election process. A person who wishes to observe but is not a
qualified election challenger is commonly called a poll watcher. Election challengers
and poll watchers play an important role in verifying that the election is conducted
openly and fairly. They are allowed into polling locations to ensure that the election
is conducted openly and fairly. However, the right to be present or to challenge
voters is not absolute. They have the right to be present and to view aspects of the
voting process. They do not have the right to act disorderly. If a precinct inspector
has asked the challenger or the watcher to leave and they refuse to do so, the
inspector is instructed to call law enforcement.
You should know that if a clerk or aninspector has contacted law enforcement it is
only because the person has become extremely disruptive. Clerks and inspectors are
instructed to first warn the person that he or she will be ejected from the polls if
problems persist. If problems continue, eject the person from the polling place.
Specifically, behavior such as drinking of alcoholic beverages or disorderly conduct,
as well as threatening or intimidating a challenger while performing an activity
allowed under subsection are not allowed. In addition, a challenger shall not
threaten or intimidate an elector while the elector is entering the polling place,
applying to vote, entering the voting compartment, voting, or leaving the polling
place.An election official or precinct board that prevents a challenger from being
present in the polls or refuses to provide a challenger with any conveniences needed
for the performance of his or her duties is subject to penalty.
Here is some guidance on deciding whether a challenger is acting in an appropriate

way.
7
Challenges must not be based on an “impression” that the voter is ineligible
due to his or her manner of dress; inability to read or write English; the
voter’s perceived race, ethnic background, physical or mental disability,
support for or opposition to a candidate or political party; or the voter’s need
for assistance with the voting process. A challenger cannot challenge a voter’s
right to vote unless the challenger has “good reason to believe” that the voter
is not eligible to vote in the precinct.
A voter cannot be challenged simply because he or she does not have or is not
in possession of acceptable picture ID, as long as the voter signs the Affidavit
of Voter Not in Possession of Picture ID. However, a voter who is unable to
show picture identification can be challenged if a challenger has good reason
to believe that the person is not qualified to vote in the precinct, independent
of the voter’s inability to provide acceptable picture ID.
A poll challenger sees a person of Hispanic ethnicity and “challenges” their right to
vote as a qualified elector. The challenger is unable to articulate “good cause” for
this belief because all they point to as evidence of the voter’s status is the
appearance of the voter. This is not a “good reason to believe” the voter is not
legally registered. Challenges must not be based on an “impression” that the voter
may be ineligible due to his or her manner of dress; inability to read or write
English; the voter’s perceived race, ethnic background, physical or mental disability,
or support for or opposition to a candidate or political party; or the voter’s need for
assistance with the voting process. When the precinct chairperson attempts to
remove the challenger because the challenge has been deemed inappropriate, the
challenger might refuse to leave the premises. If the challenger refuses to leave,
they are committing the offense of trespass in the officer’s presence and law
enforcement has the right to arrest the challenger. In addition, they may also arrest
for a violation of:
MCL 750.170 Disturbing the Peace – Jane Doe did make a disturbance at an
election place located in the county. Penalty is a 90- day misdemeanor and/or
$500.00 – arrest warranted if it committed in the officer’s presence.
MCL 168.727(2) makes it a misdemeanor for a person to “challenge[ ] a

qualified and registered elector of a voting precinct for the purpose of
annoying or delaying voters[.]”
On the opposite side, if a voter is challenged for good cause that they are not a
qualified voter and they are attempting to vote illegally, they can be arrested by law
enforcement for the following:
8
MCL 168.499(1) makes it a misdemeanor for a person “in answer to a
question or in the registration application, [to] make[ ] a material statement
that is false[.]”
MCL 168.519 makes it a misdemeanor for “[a]n individual [to] register as an

elector if he or she knows or has good reason to believe that he or she is not a
resident and qualified.”
MCL 750.170 Disturbing the Peace – The person did make a disturbance at
an election place located in the county. Penalty is a 90- day misdemeanor
and/or $500.00 (offense must be committed in the officer’s presence for
arrest.)
When deciding if a poll watcher or challenger is acting disorderly it might help to

think about the following things:
o A challenger can be expelled from the precinct for unnecessarily

obstructing or delaying the work of the election inspectors.
o Or for touching ballots, election materials or voting equipment;
o Or for campaigning;
o Or acting in a disorderly manner.
A challenger is prohibited from threatening or intimidating voters entering the

polling place, applying to vote, entering a voting station, voting, or leaving the
polling place. Challengers are not authorized to approach voters or talk
directly to voters for any reason. Challengers and poll watchers are
prohibited from taking photos or recording in the polling place during the
hours the polls are open for voting. (Note, however, that challengers and poll
watchers may use other applications on mobile devices if not disruptive or
intrusive.)
Other disruptions may occur around the use of cell phones at the polls.
Persons shall not use video cameras, cell phone cameras or video recording,
cameras, television or recording equipment in the polling place, except that
broadcast stations and credentialed media may be permitted to briefly film
from public area. Personnel working for broadcast stations or media shall not
set up cameras in the polling place.
Persons shall not use cell phones once they have entered voting station.
Cellphones may be used in the polling place by voters (while waiting in line),
challengers and poll watchers as long as they are not disruptive to the voting
process.
9
ABSENT VOTER APPLICATIONS AND BALLOTS; VOTING TWICE
There are many laws around absentee voting, voting twice and ballots. Here is an
overview of some of the crimes related to these issues:
Absent voter ballot applications:
MCL 168.759(8) makes it a misdemeanor for an unauthorized person who
both distributes absentee ballot applications to voters and returns those
absentee ballot applications to a clerk or assistant of the clerk.
MCL 168.932€ makes it a felony for a person who is not involved in the
counting of ballots as provided by law who has possession of an absentee
ballot which was mailed or delivered to another person is guilty of a felony if
he or she 1) opens the envelope containing the ballot 2) makes any marks on
the ballot 3) alters the ballot in any way or 4) substitutes another ballot for
the absentee ballot in his or her possession.
MCL 168.931(1)(b)(iv), 931(1)(n) makes it a misdemeanor for a person,

other than an authorized election official, who gives, lends or promises any
valuable consideration to or for a person to induce that person to both
distribute absentee ballot applications and receive signed absentee ballot
applications from voters for delivery to the clerk.
Voter qualifications
MCL 168.945 makes it a misdemeanor for person who induces or attempts to
induce another to apply to vote as an absent voter knowing the person is not
qualified to do so is.
Absent voter ballots
MCL 168.932(f) makes it a felony for an unauthorized person who returns,
solicits to return or agrees to return an absentee ballot.
MCL 168.761(5) makes it a felony for a person who assists an absentee voter
who falsifies the statement which must be signed by such assistants.
A person who votes at an election both in person and by means of an absent
voter ballot or a person who attempts to vote both in person and by means of
an absent voter ballot is guilty of a felony. (MCL 168.769(4))
Voting twice
10
MCL 168.932e makes it a 4-year felony to for a person to offer to vote or
attempt to vote more than once as at the same election.
OTHER CRIMES TO CONSIDER
Should a voter, challenger, poll watcher, or other person appear at the polling
location drunk, crowd people unnecessarily or cause a disturbance that interferes
with a person’s constitutional right to vote, you should consider the following
crimes:
MCL 750.167 (disorderly conduct – public intoxication, loitering, crowding

people unnecessarily) (1) A person is a disorderly person if the person is any
of the following: (e) A person who is intoxicated in a public place and who is
either endangering directly the safety of another person or of property or is
acting in a manner that causes a public disturbance. (l) A person who is
found jostling or roughly crowding people unnecessarily in a public place.
MCL 750.170 (disturbing the peace) makes it a 90-day misdemeanor to make

a disturbance in a building, located at an election place.
MCL 750.81d makes it an offense to resist or obstruct a lawful order of police

officer
MCL 750.234E makes it a misdemeanor to willfully and knowingly brandish

a firearm in public.
MCL 750.82 makes it a felony to assault someone with a dangerous

weapon with the specific intent to injure or to place the victim in reasonable
apprehension of an immediate battery. This does NOT require an offender to
point a weapon at the victim.
MCL 750.81a makes it a misdemeanor to cause an aggravated injury to a

person while assaulting them.
MCL 750.81 makes it a misdemeanor to assault or assault and batter

someone.
MCL 750.552 makes it a 30-day misdemeanor to trespass on the property of

another.
Law enforcement officers are provided great discretion in their interactions with
citizens of their jurisdictions. In some cases, a brief conversation will be enough to
ensure compliance with the laws of this State. In other cases, removing someone
from the property will suffice. It is our hope that no one will behave in such a
manner that warrants an arrest. However, if an arrest becomes necessary please
remember the times when a warrant is NOT required for an arrest:
11
M.C.L.A. 764.15 provides a peace officer, without a warrant, may arrest a
person in any of the following situations:
(a) A felony, misdemeanor, or ordinance violation is committed in the peace

officer's presence.
(b) The person has committed a felony although not in the peace
officer's presence.
(c) A felony in fact has been committed and the peace officer has reasonable
cause to believe the person committed it.
(d) The peace officer has reasonable cause to believe
a misdemeanor punishable by imprisonment for more than 92 days or a
felony has been committed and reasonable cause to believe the
person committed it.
Please know that the Department of Attorney General stands ready to answer your
legal questions as they pertain to election day issues. We know that the laws are
nuanced, and that education is usually the first line of action in working with the
public. We can be reached at 313-456-0180. Together we will ensure that
everyone is free from intimidation and harassment as they cast their ballot on this
Election Day.
12
VIOLATIONS OF MICHIGAN AND FEDEARL ELECTIONS LAW
RELEVANT TO ELECTION DAY
Call 313-456-0180 with questions – AG criminal staff will be available on

Election Day to answer your questions. This number is for law enforcement only.
FIREARMS, DEMONSTRATORS & VOTER INTIMIDATION
MCL 168.31 grants the Secretary of State authority to issue directives regarding
policy at polling locations.
MCL 28.425o prohibits the carrying of concealed weapons in the following

premises: A school or school property; a public or private child care center or day
care center, public or private child caring institution, or public or private child
placing agency; a sports arena or stadium; any property or facility owned or
operated by a church, synagogue, mosque, temple, or other place of worship; an
entertainment facility with a seating capacity of 2,500 or more individuals; a
hospital; or a dormitory or classroom of a community college, college, or university.
MCL 168.932(a), makes it a felony for: “[a] person shall not attempt, by means of
bribery, menace, or other corrupt means or device, either directly or indirectly, to
influence an elector in giving his or her vote, or to deter the elector from, or
interrupt the elector in giving his or her vote at any election held in this state
18 U.S.C.§ 592, it is illegal to order, keep, or have under one’s control any troops or
armed men at any polling place in a general or special election, if one is a civil or
military officer or employee of the United States government.
PROTESTS WITHOUT WEAPONS
MCL 168.744; 931(1)(k) Michigan law prohibits a person from posting, displaying,
or distributing inside a polling place or any hallway used by voters to enter or exit a
polling place, or within 100 feet of an entrance to a building in which a polling place
is located, “any material that directly or indirectly makes reference to an election, a
candidate, or a ballot question.” Note, while this restriction applies to candidates
and ballot proposals appearing on the ballot at this election, it does not apply to
official election materials that are required by law to be posted, displayed, or
distributed in a polling place on Election Day.
MCL 168.744(1) makes it a misdemeanor for any person “in a polling room, in a
compartment connected to a polling room, or within 100 feet from any entrance to a
building in which a polling place is located shall [to] persuade or endeavor to
persuade a person to vote for or against any particular candidate or party ticket or
for or against any ballot question that is being voted on at the election. A person
shall not place or distribute stickers, other than stickers provided by the election
officials pursuant to law” in the same areas.
13
MCL 168.744(3) makes is a misdemeanor for a person, on election day, to “post,
display, or distribute in a polling place, in any hallway used by voters to enter or
exit a polling place, or within 100 feet of an entrance to a building in which a polling
place is located any material that directly or indirectly makes reference to an
election, a candidate, or a ballot question.”
MCL 168.931(1)(k) makes it a misdemeanor for a person to solicit votes in a polling

place or within 100 feet of polling place on election day.
MCL 168.932(a) makes it a felony for a person to attempt, by means of bribery,

menace, or other corrupt means or device, either directly or indirectly, to influence
an elector in giving his or her vote, or to deter the elector from, or interrupt the
elector in giving his or her vote at any election held in this state.
VOTER INTIMIDATION WITHOUT WEAPONS
MCL 168.932(a) makes it a felony for a person to “attempt, by means of bribery,

menace, or other corrupt means or device, either directly or indirectly, to influence
an elector in giving his or her vote, or to deter the elector from, or interrupt the
elector in giving his or her vote at any election held in this state.”
COVID-19 RELATED HEALTH QUESTIONS
Emergency Order Under MCL 333.2253 – Gathering Prohibition and Mask Order
(d) Gatherings are permitted for the following purposes notwithstanding the
requirements of subsection (1)(c): (1) Voting or election-related activities at
polling places
POLL WATCHERS AND CHALLENGERS; DISRUPTIONS AT THE POLLS
MCL 750.170 Disturbing the Peace – Jane Doe did make a disturbance at an
$500.00 – arrest warranted if it committed in the officer’s presence.
MCL 168.727(2) makes it a misdemeanor for a person to “challenge[ ] a qualified

and registered elector of a voting precinct for the purpose of annoying or delaying
voters[.]”
MCL 168.499(1) makes it a misdemeanor for a person “in answer to a question or

in the registration application, [to] make[ ] a material statement that is false[.]”
MCL 168.519 makes it a misdemeanor for “[a]n individual [to] register as an elector
if he or she knows or has good reason to believe that he or she is not a resident and
qualified.”
14
MCL 750.170 Disturbing the Peace – The person did make a disturbance at an
$500.00 (offense must be committed in the officer’s presence for arrest.)
ABSENT VOTER APPLICATIONS AND BALLOTS; VOTING TWICE
MCL 168.759(8) makes it a misdemeanor for an unauthorized person who both

distributes absentee ballot applications to voters and returns those absentee ballot
applications to a clerk or assistant of the clerk.
MCL 168.932€ makes it a felony for a person who is not involved in the counting of
ballots as provided by law who has possession of an absentee ballot which was
mailed or delivered to another person is guilty of a felony if he or she 1) opens the
envelope containing the ballot 2) makes any marks on the ballot 3) alters the ballot
in any way or 4) substitutes another ballot for the absentee ballot in his or her
possession.
MCL 168.931(1)(b)(iv), 931(1)(n) makes it a misdemeanor for a person, other than
an authorized election official, who gives, lends or promises any valuable
consideration to or for a person to induce that person to both distribute absentee
ballot applications and receive signed absentee ballot applications from voters for
delivery to the clerk.
MCL 168.945 makes it a misdemeanor for person who induces or attempts to
induce another to apply to vote as an absent voter knowing the person is not
qualified to do so is.
MCL 168.932(f) makes it a felony for an unauthorized person who returns, solicits
to return or agrees to return an absentee ballot.
MCL 168.761(5) makes it a felony for a person who assists an absentee voter who
falsifies the statement which must be signed by such assistants.
MCL 168.769(4) A person who votes at an election both in person and by means of
an absent voter ballot or a person who attempts to vote both in person and by
means of an absent voter ballot is guilty of a felony.
MCL 168.932e makes it a 4-year felony to for a person to offer to vote or attempt to
vote more than once as at the same election.
OTHER CRIMES TO CONSIDER
MCL 750.167 (disorderly conduct – public intoxication, loitering, crowding people

unnecessarily) (1) A person is a disorderly person if the person is any of the
following: (e) A person who is intoxicated in a public place and who is either
endangering directly the safety of another person or of property or is acting in a
manner that causes a public disturbance. (l) A person who is found jostling or
15
roughly crowding people unnecessarily in a public place.
MCL 750.170 (disturbing the peace) makes it a 90-day misdemeanor to make a

disturbance in a building, located at an election place.
MCL 750.81d makes it an offense to resist or obstruct a lawful order of police

officer.
MCL 750.234E makes it a misdemeanor to willfully and knowingly brandish a

firearm in public.
MCL 750.82 makes it a felony to assault someone with a dangerous weapon with
the specific intent to injure or to place the victim in reasonable apprehension of an
immediate battery. This does NOT require an offender to point a weapon at the
victim.
MCL 750.81a makes it a misdemeanor to cause an aggravated injury to a person

while assaulting them.
MCL 750.81 makes it a misdemeanor to assault or assault and batter someone.
MCL 750.552 makes it a 30-day misdemeanor to trespass on the property of

another.
M.C.L.A. 764.15 provides a peace officer, without a warrant, may arrest a person in
any of the following situations:
(a) A felony, misdemeanor, or ordinance violation is committed in the peace

officer's presence.
(b) The person has committed a felony although not in the peace
officer's presence.
(c) A felony in fact has been committed and the peace officer has reasonable
cause to believe the person committed it.
(d) The peace officer has reasonable cause to believe
a misdemeanor punishable by imprisonment for more than 92 days or a
felony has been committed and reasonable cause to believe the
person committed it.
16
EXHIBIT 4
10/19/2020 Michigan police chiefs' leader: Open carry ban at polls not based in law
POLITICS
Michigan police chiefs' leader: Open carry ban at

polling places not based in law
George Hunter and Beth LeBlanc The Detroit News
Published 3:24 p.m. ET Oct. 19, 2020
The head of the group that represents 385 Michigan police chiefs warned Monday that officers won't be able to enforce
Secretary of State Jocelyn Benson's ban on openly carrying firearms at polling places on Election Day because the edict is
not based in law.
Secretary of State Jocelyn Benson on Friday sent guidance to local election officials to explain that openly carrying firearms
on Election Day in polling places, clerk’s offices and absent voter counting boards would be banned.
But the edict has no legal basis, said Robert Stevenson, director of the Michigan Association of Chiefs of Police.
“The Secretary of State issued these administrative rules, but in researching the issue, there’s nothing in the law that gives
police the authority to enforce these rules," Stevenson said. "Their theory is if people don’t follow the rules and don’t leave
(the polling place), they’d have a trespassing situation where police would be able to take enforcement action.
"But 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," Stevenson said. “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."
The Secretary of State's office consulted with Attorney General Dana Nessel before issuing the order, Benson spokeswoman
Tracy Wimmer said.
"The directive was the result of the Attorney General, the state’s top law enforcement official, reviewing relevant laws and
legal precedent and ruling, in her capacity as that law enforcement official, that the Secretary has the authority," Wimmer
said in a Monday email. "It is within the scope of authority for executives to interpret relevant and applicable law and apply
it appropriately, and is indeed based in law."
Nessel said on the Sunday broadcast of Showtime's "The Circus" that Michigan State Police troopers would patrol polling
spots if the state believed local sheriffs wouldn't enforce laws prohibiting voter intimidation.
Republican legislative leaders and gun rights groups have criticized the two Democratic officials about the guidance, which
Senate Majority Leader Mike Shirkey, R-Clarklake, called "making up firearm policies."
The attorney general made the comments after she was asked whether she could rely on elected local sheriffs to enforce
voter intimidation and security laws. Barry County Sheriff Dar Leaf has made statements supporting militia groups, and
other sheriffs have refused to enforce previous executive orders by Gov. Gretchen Whitmer because they said they
were unconstitutional.
"If you have a county sheriff that seems to be sympathetic to any of these organizations and we think they're not going to
enforce the laws, then we'll get somebody else who will, the Michigan State Police," Nessel said. "Every place in the state of
Michigan, there will be law enforcement that believe that voters need to be protected."
The National Rifle Association has condemned the directive from Benson, while Michigan Open Carry indicated it is
contemplating a lawsuit.
https://www.detroitnews.com/story/news/politics/2020/10/19/michigan-police-chiefs-leader-open-carry-ban-polls-not-based-law/3713235001/ 1/3
Other law enforcement officials are mixed about whether they plan to enforce the edict.
Wayne County Sheriff Benny Napoleon, a fellow Democrat, expected the directive from Benson would be challenged in the
coming days. Until then, he said he plans to comply.
“Until such time as a court of appropriate jurisdiction tells me that plan is unlawful, it is my plan to enforce,” Napoleon said
Monday, but he didn’t expect there to be any issues in Wayne County.
People found to be in violation of the directive “will be asked to leave,” the Wayne County sheriff said. “If you refuse to leave,
then you will be arrested.”
“I just think it’s unfortunate that the rhetoric surrounding this election is even putting us to this point where we are
concerned about something as fundamental as people’s right to vote,” Napoleon said.
Napoleon expects to meet this week with the offices of Whitmer, Nessel and the Michigan State Police to discuss the
upcoming election. He then plans to meet with the 43 local police chiefs to coordinate efforts.
“I can’t control what the individual police chiefs do," Napoleon said. "That’s a decision that they have to make with their
respective city leaders.”
Livingston County Sheriff Mike Murphy said Friday he would not enforce the ban, staying in line with his previous refusal to
enforce Whitmer's executive orders.
"An order is an order and, quite frankly, is unenforceable," he said. "They have no authority to supersede law.”
Murphy said he will have additional staff on hand in the case of disturbances at polling locations, but he didn't expect they
would need to be used.
The Michigan Sheriffs Association was advising elected sheriffs to consult with their counsels and local prosecutors about
Benson’s decision, said Matt Saxton, CEO and executive director of the association.
On Monday, Saxton added: "This administrative order does cause concern, because it puts law enforcement in the middle of
the issue. In my opinion, the order was a solution in search of a problem. I've been in law enforcement for 28 years, and
every year there's some concern about safety in the polling places, and we've been able to handle those concerns with no
issues.
"Every polling place is in a different kind of building, and the laws dictate whether people can carry firearms there," he said.
"Some are in churches, which are gun-free zones — but a church pastor can give permission for people to carry in that
church, so someone could be coming in with permission to carry a gun.
"Every incident of a possible violation (of Benson's order) will have to be handled individually, which would've occurred
regardless of this order," Saxton said.
Nessel's spokeswoman, Kelly Rossman-McKinney, did not immediately respond to an email Monday seeking comment, but
on Sunday she told The News that the Attorney Generals' department coordinated the issue with state police.
"But we have already met with them to discuss partnering on enforcement, and they have agreed to assist us," Rossman-
McKinney said. "We are committed to ensuring that every voter feels safe and secure."
State Police spokeswoman Shanon Banner was not working Monday, but told The News on Sunday: "I won’t get into
speculation about enforcement action, but the Michigan State Police does have statewide jurisdiction."
State police spokeswoman Lori Dougovito on Monday referred questions about whether Benson's order was enforceable to
the Attorney General's office.
The directive is similar to a prohibition on taking photos or video recording in polling places, Benson's spokeswoman
Wimmer said.
"Obviously the public has the right to take pictures in public, but the Department of State determined many years ago that
they cannot take photos of others in polling places, because voters have the right to a private ballot," she said.
"The directive respects the right to bear arms, and in fact does not touch on concealed carry, but it does say that in the
context of a voting location, open carry of a firearm can cause voter intimidation, and therefore is not allowable," Wimmer
said.
What the Secretary of State's office is talking about is voter intimidation, and laws already exist to deal with that, Stevenson
said. Circumstances matter, he said.
"Just someone carrying a gun, or standing in a parking lot open-carrying would probably not be intimidation," Stevenson
said.
"If a person is approaching people in a threatening manner, or if three to four people are blocking the road, that could be
construed as intimidation. But simply having a gun is legal, since Michigan is an open carry state," he said.
The main issue is whether Benson can issue an administrative order "that supersedes state law," Stevenson said.
Additional guidance is "really needed," he added. "it's unfair to put police in the middle like this."
ghunter@detroitnews.com
(313) 222-2134
Twitter: @GeorgeHunter_DN
EXHIBIT 5
CRIMINAL DIVISION
82toniaAveN.W,
Suite 450
Grand Rapids, Ml 49503-3022
Telephone; (616) 632-6710
Fax:'(616) 632-6714 CHRISTOPHER BECKER
Prosecutor
MONICA M.JANISKEE
Chief Assistant Prosecutor
TO: Kent County Law Enforcement
FROM: Chris Becker
RE: Secretary of State election order and election day guidance
I am sure many of you are aware of the recent order by the Secretary of State banning the open
carrying of firearms inside a polling location/ a clerk's office, an absent voter counting board, or within
100 feet of these same entities. Subsequently, I received a memo which many of you may have seen as
well, sent out by the Attorney General to MAPC, MSA, and PAAM, in which it states the Secretary of
State has the power to issue this order, "by MCL 168.21 and MCL 168.31." I was also on a conference
call with other members of PAAM, where members of the Attorney GeneraFs office were attempting to
explain how this order was fegal. I have examined these two statues, asked attorneys in the office to
examine them as well/ and after all of this I am not convinced there is any basis in the laws cited that
allows the Secretary of State to ban the open carrying of firearms as she directs in her order. It appears
that the Secretary would have at least needed to follow the steps in the Administrative Procedure Act to
promulgate such an order, which was not done.
This puts law enforcement in a difficult situation. Given the publicity the order has garnered, I
can foresee members of the public/ clerks, and any number of individuals calling for assistance from
your department to enforce an order that I cannot say is valid. For instance/ if some individual walks into
a polling place with an openly carried firearm and does not engage in any threatening/ intimidating, or
otherwise interfering behavior, and simply comes to vote openly armed with a gun, this could prompt a
cai! from an election clerk for the police to assist. There is, however/ no criminal offense for "open carry
in violation of a Secretary of State order," and neither in the Attorney General's memo, nor in their
conference call, could they identify any basis for such a claim. Under the Executive Orders we dealt with
for much of this year/ and even under the new orders by the Director of the MDHHS, there are specific
provisions under those laws creating a misdemeanor offense for a violation of those laws. There are no
such provisions for alleging a misdemeanor or felony violation of the Secretary's order, and therefore
there is no legal basis for your officers to arrest or remove an individual based on a violation of the
order.
The possibility for a criminal offense then, in this specific situation, would be a trespass or some
sort of disorderly conduct charge. Given the circumstances, however, if there is a situation where a
person is simply present in a polling location and openly carrying a firearm, this office will not prosecute
such charges. The person is not breaking the law, and there is no basis to remove someone pursuant to
an invalid order. You may also wish to consult your civil counsel to see what liability you may be facing
in these situations as well.
I want to be very clear on this; if there is some sort of brandishing or pointing of a weapon/
some sort of intimidation or overt activity threatening someone, that is very different. This office does
not condone, nor will it support individuals or groups engaging in threatening or intimidating behavior.
There is a specific statute, MCL 168.932(a) which makes it a felony for a person by, "bribery, menace, or
other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her
vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election." This
is a specific criminal statue describing behavior that illegally attempts to interfere with a person's right
to vote. There are other offenses that may apply as well. Voter intimidation means just that; activity by
a person or persons that is intimidating, throating, or otherwise intentionally trying to prevent people
from voting by putting people in fear.
This office can and will file charges against anyone engaged in these sorts of activities/ and will
support your departments investigating them. Such cases wii! be fact dependent, so it is impossible to
provide any sort of complete list or guidance of what may occur. It is entirely appropriate for your
department to work these complaints like you wouid any other investigation when you seek to file
criminal charges. Unfortunately, this order by the Secretary of State may cover activity that is not
threatening or intimidating, so it may ensnare people who are doing nothing illegal. We hope to avoid
needlessly involving anyone in the criminal justice system if it can be avoided, and we agree with the
Attorney General's suggestion to resolve situations first through education if possible and arrest only as
a last resort.
In short, please continue to do what you have typically done well: investigate and enforce
violations of the criminal law, protecting the safety and security of the people you serve.

2020-10-20 - Plaintiff - Motion For Emergency Injunction

Uploaded by

Copyright:

Available Formats

2020-10-20 - Plaintiff - Motion For Emergency Injunction

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2020-10-20 - Plaintiff - Motion For Emergency Injunction

Uploaded by

Copyright:

Available Formats

Plaintiffs Thomas Lambert, Michigan Open Carry, Inc., Michigan Gun Owners, Inc.

1) Enforcing Secretary of State Joycelyn Bensons pronouncement titled “Open Carry of

contained within the document or any similar subsequent prohibition;

that will be unable to remedy through injunctive relief if delayed.

pending a decision on the merits of Plaintiffs’ claims in this matter.

Dated: October 22, 2020

DEAN G. GREENBLATT, PLC LAW OFFICES OF

THOMAS LAMBERT, an individual; )

ORDER RE: MOTION FOR HEARING ON PRELIMINARY INJUNCTION

PRESENT: HONORABLE __________________________________________

Court being fully advised in the premises;

2020, at ________________ or as soon thereafter as counsel may be heard why a preliminary

elections. Rather, those powers are specifically limited to the Legislature.

“Except as otherwise provided in this constitution or in the constitution or laws of

Michigan’s Firearms Act12 or the Penal Code13.

statutory authority, the regulation or directive appears to be a “Rule”14 under Michigan’s

specifically provides for court intervention in such circumstances.16

lawful manner on Election Day.

I. PENDING DECLARATORY JUDGMENT, THE COURT SHOULD MAINTAIN

II. ALL OF THE PERTINENT FACTORS WEIGH IN FAVOR OF GRANTING

For preliminary injunctions, a hearing is required.

According to MCR 3.310(A)(1), unless otherwise provided by

Pontiac Fire Fighters, 482 Mich at 9.

Additionally, MCR 3.310(C)(1) declares that an order granting an

Campau, 185 Mich App at 727; 463 NW2d 186 (1990).

A. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS

1. The Secretary of State’s Ban on Firearm Possession is an ultra vires act; a)

a) Michigan’s Administrative Procedures Act of 1969; MCL§24.201,

“means an agency regulation, statement, standard, policy, ruling, or instruction of general

these conditions are met in this instance.

b) Michigan’s Separation of Powers:

“Except as otherwise provided in this constitution or in the constitution or

(Mich. Oct. 2, 2020)

B. PLAINTIFFS WILL SUFFER IRREPARABLE INJURY ABSENT AN

instances of voter disenfranchisement on Election Day.

C. GRANTING AN INJUNCTION WILL NOT CAUSE SUBSTANTIAL

possession of firearms on Election Day.

Dated: October 22, 2020

October 16, 2020

TO: Michigan State Police

FROM: Danielle Hagaman-Clark

Re: Election Day (Security & Integrity Guidance)

As November 3, 2020 – Election Day – quickly approaches, we wanted to take this

BODY WORN CAMERAS

FIREARMS & VOTER INTIMIDATION

Scenario Law Enforcement Likely to Encounter

Law enforcement is called to the polling location by either a voter attempting to

1MCL 168.678 provides a board of election inspectors with “full authority to

To determine if an individual is attempting to influence a voter you should consider

Groups of Armed Individuals Outside 100 foot Zone

Special consideration should be given to groups of armed individuals who are

o The number of people grouped together

o The amount of coordination between members of the group – are they

o How are they dressed? Are they in “full kit?”

o Are they yelling, screaming or being loud?

o How are they holding their weapons?

o How close to the 100 foot zone are they positioned?

o What is the size, caliber, appearance of the weapon?