LANSING, Mich. (Michigan News Source) – Michigan’s new law enforcement guidance for elections is loaded with instructions, but where do constitutional rights fit in? The guidance from the Michigan Democratic Attorney General Dana Nessel’s office comes in the form of a letter to law enforcement agencies written by Robyn Liddell, Division Chief, Criminal Trials Division, and her counsel seems more focused on managing voter behavior than protecting constitutional freedoms.

Welcome to the new voting world where compliance with the state’s rules is expected.

According to the press release about the October 10th letter, the AG’s office says their guidance “provides detailed election law guidance for Election Day and early voting periods” and is “designed to prepare law enforcement officers to protect voters’ rights throughout the election process.”

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It emphasizes the need to maintain peace and order at polling locations, early voting sites and at drop box locations. While that sounds good in theory, it gives law enforcement the authority to arrest individuals who might be “intimidating” voters – even if their behavior could be seen by some as constitutionally protected. While this may sound like a sensible approach, it puts a lot of discretion in the hands of officers who are determining what speech they consider to be “intimidating.”

Lots of scenarios given.

In the letter, several different scenarios of election disruptions and possible illegality are given to law enforcement with corresponding Michigan legal statutes to go along with the situations. For example, open carry of firearms is permitted in Michigan, but the guidance encourages law enforcement to consider arresting individuals whose firearm presence might be deemed intimidating to voters.

The guidance points to MCL 168.932(a) in this situation which makes it a 90-day misdemeanor for a person to attempt to influence an elector. The statute says, “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.”

When rights collide.

Michigan law prohibits firearms within 100 feet of polling sites, as well as inside school buildings, places of worship, and other common voting locations. However, questions remain about scenarios where individuals comply with these restrictions but are still subject to having their constitutional rights infringed.

For instance, individuals open-carrying firearms 100 feet away from polling sites are technically adhering to the election law. However, this still raises alarms for the AG’s office with concerns about voter intimidation, as groups of open carriers stationed just beyond the 100-foot boundary could still impact the voting atmosphere – if a law enforcement officer says they are. The state’s stance is clear on the prohibition zones, but circumstances just outside these zones continue to be a point of contention.

The AG office’s guidance argues that the right to vote may outweigh the right to bear arms, or in their own words “the right to vote may outweigh the interest expressed by the protester.” Therefore, a gun owner may find themselves on the wrong side of a law enforcement decision – one that prioritizes voter comfort over their constitutional rights.

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Under the heading “Groups of Armed Demonstrators Outside 100-Foot Zone,” it says that “special consideration should be given to groups of armed demonstrators who are outside the 100-foot safety barrier.” When deciding if the group is acting in an intimidating fashion, the letter says for the law enforcement officer to consider the number of people in the group; the amount of coordination between the members of the group; how they are dressed; if they are in “full kit”; if they are yelling, screaming or being loud; and how they are holding their weapon.

Free speech, but not too free.

In one of many other scenarios listed in the letter that law enforcement may be likely to encounter is a situation where “A group of protesters are standing outside of a polling location protesting recent political events. These protesters are 100 feet from the polling location. However, the protesters are causing voters to leave the polling location without voting for fear of walking near them and interfering with foot traffic into the polling location. The protesters speech is protected under the First Amendment. That said, reasonable restrictions on the exercise of free speech are permitted if the limitation is confined to a time, place and manner restriction that is rationally related to public welfare and content neutral.”

When it comes to laws about intimidating election officials, the letter states, “Intimidation does not include constitutionally protected activity or conduct that serves a legitimate purpose.” But what exactly qualifies as a “legitimate purpose”? Is it observing an election official at work – even if they’re uncomfortable with it – or just causing a minor disruption? The ultimate call on whether someone is being “intimidating” is left up to the law enforcement officer who shows up at the precinct in question.

The First Amendment is clear about the right to peaceful protest, but the AG’s guidance essentially encourages law enforcement to use their own discretion to maintain order, even if that means limiting speech that is uncomfortable but still lawful.

Discretion or suppression?

In the AG’s guidance it says “Law enforcement officers are provided great discretion in their interactions with citizens of their jurisdiction. In some cases, a brief conversation will be enough to ensure compliance with the laws of the State. In other cases, removing someone from the property will suffice.” The letter goes on to say that they hope no one will behave in such a way as to warrant an arrest however “if an arrest becomes necessary, please remember the times when a warrant is NOT required for an arrest” and the letter outlines those situations for the law officers.

No room for the First or Second Amendments when voters go to the polls?

According to the AG’s guidance, both First and Second Amendment rights should be carefully scrutinized. In the balancing act between protecting voter access and respecting constitutional rights, it appears that the victor has already been chosen by AG Nessel and the “winner” is a voter or an election official who feels that they are being intimidated.

While keeping elections fair and intimidation-free is vital, constitutional rights shouldn’t feel like an afterthought. The new guidance seems to prioritize a controlled environment over protecting lawful expressions of individual freedoms.

As Michigan prepares for the upcoming elections, the balance between maintaining order and upholding rights may face its biggest test yet. Will this guidance stand as a fair approach or will it be remembered as a rulebook for sidelining constitutional rights when they’re inconvenient?

Part two “Confusing Signals: Michigan Secretary of State and AG Muddy the Waters on Challenging Voters’ Immigration Status” can be read here.