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Litigation Highlight: Lawsuit Over Michigan’s Restrictions on Guns in Polling Places

By on October 28, 2020 Categories: , ,

On October 16, Michigan Secretary of State Jocelyn Benson issued a memo in her capacity as “chief election officer with supervisory control over local election officials in the performance of their duties.” In that memo, Benson “clarif[ied]” that open carrying of firearms at or within 100 feet of a polling place is prohibited. The directive does not affect concealed carry, and thus licensed Michiganders may be able to bring their concealed firearms into polling places if allowed at the particular location. Benson also made clear that firearms can be stored in parked cars that are within 100 feet of a polling place if such storage is otherwise lawful.

Surprisingly, restrictions on carrying firearms into polling places are not widespread. According to a recent Washington Post article, only 6 states and D.C. ban all guns at polling places. These are not the usual states one might expect, either; they include Arizona, Florida, Georgia, and Louisiana. Beyond those place-based restrictions, federal law (and many state laws as well) make it unlawful to intimidate, threaten, or coerce a person for the purpose of interfering with his or her right to vote.

Unsurprisingly, gun-rights supporters and organizations sued the Michigan Secretary of State for issuing the directive. In a lawsuit filed last week, Lambert v. Benson, the plaintiffs claim that the Secretary’s memorandum is unlawful for two reasons. First, they claim it is beyond her powers under the Michigan law and therefore void. Second, they argue that the statutory authority she claims to operate under is an unconstitutional delegation of power of legislative power to the executive and therefore violates separation-of-powers principles.

Although the formal legal claims are not couched in Second Amendment terms, this rhetoric colors the complaint. “The Secretary of State’s pronouncement has created a Hobson’s choice for those wishing to exercise both their 2nd Amendment right to self-protection and their fundamental right to vote,” the challengers assert. What’s more, they insist, the directive itself is based on the unsupported suggestion that the presence of openly displayed firearms “may cause disruption, fear, or intimidation for voters, election workers, and others present.”

The Second Amendment issue involves questions about the nature of the right to keep and bear arms in these locations and about the government’s interest in such regulations. One point of contention will be whether polling places constitute “sensitive places” from which guns can permissibly be excluded. In Heller, the Court emphasized that “nothing in [its] opinion” should be construed as calling into question presumptively lawful regulations like those “forbidding the carrying of firearms in sensitive places such as schools and government buildings.” Although the “sensitive places doctrine” has received relatively scant scholarly attention (but see Darrell’s terrific piece here) or lower court elucidation, two key cases stand out: Bonidy v. US Postal Service and United States v. Class. In the former, the court upheld a ban on firearms in U.S. Post Offices and adjacent post office parking lots, but did not expand much on the justifications for such carve-outs. In a partial dissent, Judge Tymkovich would have struck down the ban as applied to a concealed-carry license holder in the parking lot. There, in the course of distinguishing different locations, he noted that the government needed “concrete evidence of particular vulnerability” in a certain location to justify the place’s status as sensitive. In Class, the court upheld a ban on firearms on “Capitol grounds,” even as applied to a man who parked in an open-air lot on Maryland Avenue, 1000 feet from the Capitol building. It suggested that locations qualify as “sensitive” not because of the level of threat in a place but because of “the people found there” or the “activities that take place there.”

In the Benson litigation, the trial court granted a preliminary injunction yesterday, forbidding the state from enforcing the directive. It sided with the challengers on their first grounds for relief—that the Secretary of State acted outside the procedures set forth in state law for issuing the directive. But the court also cautioned that “this case is not about whether it is a good idea to openly carry a firearm at a polling place, or whether the Second Amendment to the US Constitution prevents” the state from banning open carry at polling locations. The state has said it will appeal. To the extent that a court has the occasion to opine on the Second Amendment question, it could continue to refine the factors influencing the sensitive places doctrine.