Benson Wanted Poll Books Wiped a Week After Certification. A Judge Says Keep Them 22 Months

Michigan law says poll lists from an election "must be carefully preserved" for 22 months. Secretary of State Jocelyn Benson's rule told every local clerk to delete the electronic poll books "from all devices by the seventh day following the final canvass and certification of the election."

A judge has now settled which one wins. In a 35-page opinion and order in McQueer v. Benson, Michigan Court of Claims Judge Michael J. Riordan ruled that Benson's Rule 168.48 "is inconsistent with and violates" state election law. "When an administrative rule conflicts with a statute, the statute controls," he wrote. "Rule 168.48 is invalid."

He also granted a permanent injunction against enforcing the rule, writing that there is "no other means to ensure the retention of the EPB than for the Court to enjoin the mass deletion of EPBs following the General Election and future elections." The opinion calls itself "a final order resolving all issues in this case." It was made public Monday, the day before Michigan votes and Benson is on the ballot as the Democratic nominee for governor.

"Did not rule on the merits"

Last week, Benson's office played down the case. On Oct. 27, Riordan issued a statewide temporary order telling clerks to move the Nov. 3 poll books onto encrypted flash drives and store them "until further order of this Court." A day later, Department of State press secretary Samantha May told Michigan Advance: "The Court of Claims did not rule on the merits or determine that the Bureau of Elections' guidance conflicts with state or federal law. We are reviewing the ruling to determine our next steps."

The court has now ruled on the merits, and it found the rule conflicts with state law.

What deletion would have erased

Benson's department argued in a Sept. 30 declaratory ruling that the files it deletes are "simply a copy" of information already uploaded to the state's Qualified Voter File or printed on paper. The judge didn't buy it.

Once the poll book data is folded into the state file, Riordan wrote, "the EPB information is no longer in the same structure." Some content isn't kept at all, "such as status flags, time voters are checked in on the system, and the identity of the user who made the entry," a point he said Benson's lawyers did not "adequately" dispute.

"The EPB is designed to be altered and updated throughout Election Day," he wrote. "Metadata is critical to understanding the EPB and the data within. Retaining the metadata is as crucial as retaining the data itself."

He also explained why that matters. Since 2018, Michigan's constitution has given voters the right to have statewide election results audited. Keeping the poll books, the judge wrote, "protects the rights of all Michiganders in the event an audit is pursued."

The $100 burden

The state warned that keeping the flash drives was a slippery slope toward having to keep precinct laptops and even vote tabulators. "Defendants have cited no law under which such an extreme remedy would be required," Riordan wrote. He noted McQueer's estimate that the cost is "at most, $100 per additional flash drive," and said adding them to what clerks already store "will not cause undue inconvenience." After 22 months, clerks can wipe the drives and reuse them.

Riordan left the how to Benson. He directed her and the Department of State to "draft instructions in accordance with the Court's Opinion and Order for local election officials to comply therewith."

The judge did side with the state on one point. He ruled that the federal law requiring officials to keep election records for 22 months doesn't reach the poll books, because officials create them rather than receive them from voters. The rule fell on Michigan's own election law instead.

One clerk

Bridgewater Township Clerk Michelle McQueer filed the suit Aug. 12, the opinion says, "in part, because MDOS had not acted on her requests for a declaratory ruling." Once in court, Benson's side "avoided making any substantive arguments in this case for seven weeks," the judge wrote. The Republican National Committee and the Michigan Republican Party joined the case and asked for the order to cover the whole state.

McQueer's attorney, Kevin Kijewski, who is also the Republican candidate for Michigan attorney general, announced the win on X. He said the ruling covers "EVERY clerk in Michigan," which he counts at 1,520, and that "the State can appeal."

We found no public response from Benson's office to the final judgment as of Monday afternoon. Tomorrow's poll books stay on the flash drives.