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NRA, sheriffs association question Benson's ban on open carry at polling places

Craig Mauger Beth LeBlanc   | The Detroit News

State officials moved Friday to ban the open carry of guns within 100 feet of polling places amid fears of voter intimidation during the pivotal Nov. 3 election, but their legal power to do so immediately came under question. 

The directive issued by Secretary of State Jocelyn Benson and Attorney General Dana Nessel, both Democrats, was quickly opposed by the National Rifle Association, Republican legislative leaders, a county sheriff who won't enforce it and an open carry group that is contemplating a lawsuit to stop its enforcement.

"Any criminal or agitator intent on committing an illegal act isn't going to pay attention to this directive," NRA spokeswoman Amy Hunter said Friday. "Therefore, this ill-conceived action only eradicates the right to self-defense by law-abiding Michiganders."

Benson sent the guidance to local election officials early Friday morning, 18 days before Election Day and nearly a week after a foiled kidnapping plot against Gov. Gretchen Whitmer inflamed fears of armed voters at the polls. At least two of the suspects had openly carried guns at Michigan Capitol protests of Whitmer's lockdown orders during the spring.

Fourteen individuals face charges related to the alleged plot, with six facing federal conspiracy to commit kidnapping charges and eight being charged under the state's anti-terrorism laws. The eight facing state charges are believed to be members and associates of a Michigan militia known as the Wolverine Watchmen.

Benson’s guidance banned open carry in polling places, clerk’s offices and absent voter counting boards to prevent “disruption, fear or intimidation.”

"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," it adds.

Livingston County Sheriff Mike Murphy said he will not enforce the ban on open carry firearms, noting that he also did not enforce Whitmer's executive orders during the pandemic. 

"An order is an order and, quite frankly, is unenforceable," Murphy said. "They have no authority to supersede law.”

Joey Roberts, president of Michigan Open Carry, said his organization doesn't believe Benson has the unilateral authority to impose such a policy.

Many polling places are in churches or schools, where concealed carry is already outlawed, Roberts said. A lawsuit is "being discussed," he added.

"We don't see walking in and voting with an open carry pistol as voter intimidation," Roberts said.

Michigan Senate Majority Leader Mike Shirkey, R-Clarklake, criticized the decision and argued Benson's efforts would have been better directed at reducing wait times at branch offices.

"But we recognize her actual job is not as attention-grabbing as making up firearm policies less than 20 days before an election," Shirkey spokeswoman Amber McCann said Friday. 

The decision was also criticized by Rep. Triston Cole, the Mancelona Republican who serves as the state House floor leader.

"This is an in your face unconstitutional ban," Cole said in a Facebook post. "These areas ARE NOT designated 'gun free zones.' Yes, Democrats want to take your guns and your Second Amendment rights away."

'Safe and secure'

Benson, who cited her role as the state's chief election official, is working with Nessel and Michigan State Police Director Col. Joe Gasper to ensure "Michigan voters are safe and secure when voting by informing local law enforcement agencies and ensuring that the ban on openly carried firearms is enforced statewide," according to a statement from her office.

"Prohibiting the open-carry of firearms in areas where citizens cast their ballots is necessary to ensure every voter is protected."

In an episode that will air Sunday, Nessel told Showtime's "The Circus" show that she and law enforcement throughout the state had the responsibility to be prepared for "every potential scenario," including protecting voters and the tabulation of the ballots.

Law enforcement is preparing for everything from disorderly conduct to loitering to brandishing weapons, the Democratic attorney general said. 

"We don't want people to harass voters when they are in the process of exercising what is a fundamental right, which is their right to vote," Nessel said. "I feel like it's my job to do everything I can to make sure there is a safe and secure vote, and I'm very hopeful that law enforcement will agree."

Nessel's office said the guidance sent to law enforcement Friday indicates both local and state authorities are expected "to use their discretion in handling issues at the polls."

When asked about the potential penalties or consequences associated with an infraction of the open carry ban, Nessel's spokesman Ryan Jarvi said "a variety of laws may apply and individual circumstances would have to be reviewed” including voter intimidation.

While Whitmer's stay-home and business closure orders were still in place, some sheriffs said they would not enforce the orders because they believed they were unconstitutional. The Michigan Supreme Court ended up ruling that they were.

Benson's election guidance also says, 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 contact law enforcement.

The open carry of guns will be prohibited inside the state's polling places, in any hallways voters use to enter or exit them and "within 100 feet of any entrance to a building in which a polling place is located."

Voters may leave firearms inside their vehicles if they are parked within 100 feet of the buildings "if otherwise permitted by law to possess the firearm within the vehicle," the guidance says.

Concealed carry will be prohibited in any building that already prohibits it "unless an individual is authorized by the building," according to the guidance.

Benson's ban questioned, backed

The uncertainty about Benson's power to issue the guidance caused a scramble among law enforcement. The Michigan Sheriffs Association said it is advising elected sheriffs across the state to consult with their corporate counsels and local prosecutors about Benson’s decision, said Matt Saxton, CEO and executive director of the association. 

Law enforcement agencies were still waiting on guidance from the attorney general on the matter as of Friday morning, Saxton said. Nessel's office said the directives were being sent Friday throughout the day.

"It kind of puts law enforcement in the middle of this issue,” Saxton said. “Currently, law enforcement will have to follow the laws of the state of Michigan pertaining to polling stations and whether guns are allowed or not allowed.”

Livingston County Sheriff Murphy said he also doesn't intend to enforce concealed carry bans at schools or churches used for polling locations after conversations in 2016 with the county prosecutor. For Election Day, the facility is a polling location, not a church or school. 

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.

"You vote where you live," he said. "The chances of having an outside influence come in and be disruptive, I don’t see that happening.”

The American Civil Liberties Union of Michigan embraced Benson's guidance.

"The Supreme Court has long recognized that polling places should be an ‘island of calm,’ free from distraction and interference," ACLU of Michigan Executive Director Dave Noble said in a statement.

"Therefore, just as people are not allowed to carry signs or pass out political literature within 100 feet of polling places, people should not be allowed to openly carry guns. Voting must be easy, accessible, and free of all barriers as it is the cornerstone of our democracy.”  

Michigan Legislative Black Caucus Chairman and state Sen. Marshall Bullock, D-Detroit, hailed Benson's move as a way to protect minority voting rights.

“We support Secretary Benson’s decision in the wake of threats of violence from voices that espouse anti-government and white supremacist views, and who have been egged on with calls, dog whistles, and fear-mongering by people at various levels of government," Bullock said in a statement. "Ensuring that the right to vote is protected is wise and of paramount importance.”

President Donald Trump won Michigan in 2016 by 10,704 votes, his closest margin of victory nationally. But the Republican incumbent, who's being challenged by Democrat Joe Biden this fall, has raised concerns about the integrity of the upcoming election as absentee voting has been expanded because of the COVID-19 pandemic.

During the Sept. 29 debate in Cleveland, Trump urged his supporters "to go into the polls and watch very carefully because that's what has to happen."