A Michigan Court of Claims judge permanently blocked a state rule requiring local clerks to delete electronic pollbook files within seven days of election certification, ruling that the records, including their metadata, must be preserved for 22 months under Michigan law.
By yourNEWS Media Newsroom
LANSING, Mich. — A Michigan judge ruled Monday, Nov. 2, that Secretary of State Jocelyn Benson’s administration cannot require local election clerks to delete electronic pollbook records shortly after elections are certified, issuing a permanent injunction one day before voters headed to the polls in the state’s closely watched general election.
Michigan Court of Claims Judge Michael J. Riordan invalidated Administrative Rule 168.48, which directed clerks to erase electronic pollbook software and associated files from their devices within seven days after final canvassing and certification. The judge determined that the requirement violated a Michigan statute mandating the preservation of election records for 22 months, including information needed to reconstruct voter check-ins and review election administration.
In his 35-page opinion and order issued Nov. 2, Riordan concluded that the state’s practice of transferring selected information into its Qualified Voter File database did not adequately preserve the original electronic pollbooks, which contain additional information about voter activity and changes made by election workers.
“When an administrative rule conflicts with a statute, the statute controls,” Riordan wrote.
The decision came in McQueer v. Benson, a lawsuit filed in August by Michelle McQueer, the Republican clerk of Bridgewater Township in Washtenaw County. McQueer challenged the deletion requirement after questioning whether complying with it would expose local election officials to legal consequences under state and federal recordkeeping laws.
The Republican National Committee and Michigan Republican Party subsequently joined the lawsuit as intervening plaintiffs, supporting McQueer’s effort to require preservation of the original electronic records.
Riordan ruled that Michigan Compiled Laws Section 168.811 requires the retention of election returns, including poll lists, statements, tally sheets and other documents generated by precinct election inspectors. He determined that electronic pollbooks contain records covered by that statute and cannot be routinely deleted after their information has been transferred into another system.
“To retain the poll lists and statements as required by MCL 168.811, the EPB must be retained with its metadata intact,” the judge wrote.
Electronic pollbooks are used by precinct workers to verify voter registration, record participation and document ballot issuance. They also contain electronic activity logs that can show when entries were made, which users entered information and whether records were subsequently modified.
The Michigan Department of State argued that existing procedures adequately preserved election information through paper records and uploads to the Qualified Voter File, the statewide database used to maintain voter registration information. State officials maintained that the original electronic files could be deleted after relevant information was securely transferred and retained elsewhere.
Riordan rejected that interpretation, finding that the transfer process did not preserve the complete electronic record or its underlying structure.
“The EPB does not retain its content, context, or structure when uploaded into the QVF,” Riordan wrote, emphasizing that metadata provides information necessary to understand how records were created and maintained.
The ruling establishes that retaining a printout or transferring selected data does not necessarily satisfy Michigan’s statutory recordkeeping requirements when the original electronic files contain additional information relevant to an election review.
However, the judge rejected the plaintiffs’ separate argument that Benson’s deletion rule violated federal law. Although federal statute 52 U.S.C. § 20701 generally requires election officials to retain voting-related records for 22 months after federal elections, Riordan determined that the electronic pollbooks at issue did not fall within that provision’s specific requirements because they were generated by election officials rather than received from outside sources.
The distinction is legally significant: The court struck down the rule because it conflicted with Michigan election law, not because the judge found a violation of federal law. The decision also did not establish that Benson or other state officials had committed a criminal offense.
The dispute had attracted attention from the U.S. Department of Justice, which filed a statement of interest addressing the federal election records retention statute. Federal law provides criminal penalties for the willful destruction of certain protected election documents, a concern McQueer raised while seeking clarification about her responsibilities.
The lawsuit began after McQueer requested guidance from state election officials concerning the apparent conflict between the deletion instructions and record preservation requirements. According to Michigan Fair Elections Institute’s account of the litigation, she received no satisfactory response before filing suit as the August primary election certification approached.
The court initially issued temporary orders preserving certain pollbook records while the legal challenge proceeded. On Oct. 27, Riordan expanded the preservation requirement to cover electronic pollbooks from the Nov. 3 general election, directing the state to notify local officials that the files must be transferred to encrypted flash drives and securely stored pending further court action.
Benson’s office defended its existing procedures and indicated it was reviewing the temporary order.
“The Court of Claims did not rule on the merits or determine that the Bureau of Elections’ guidance conflicts with state or federal law,” department spokesperson Samantha May said at the time, according to an Oct. 28 report by Michigan Advance.
Monday’s decision went considerably further by resolving the underlying legal questions and permanently prohibiting enforcement of Rule 168.48. The injunction applies statewide, requiring Michigan election authorities to preserve the electronic pollbook records rather than delete them under the invalidated administrative rule.
Riordan also considered the practical burden of retaining the records, finding that the additional storage requirements were relatively modest. The court discussed the use of encrypted flash drives, with the potential cost estimated at no more than approximately $100 for an additional device.
The judge declined to dictate every technical detail of the preservation process, leaving state officials responsible for developing instructions consistent with the ruling. He emphasized that maintaining the records protects Michigan voters’ constitutional rights to election audits and ensures that information potentially relevant to future reviews remains available.
The ruling was welcomed by McQueer and Republican organizations involved in the lawsuit. Attorney Kevin Kijewski, who represented McQueer, characterized the decision as a statewide victory for election records preservation, writing on X that “one clerk… two laws… the law won.”
Michigan Fair Elections Institute founder Patrice Johnson also praised McQueer’s decision to challenge the rule.
“We cannot fail to acknowledge the courage it took for Michelle McQueer, township clerk, to stand up to Secretary of State Jocelyn Benson,” Johnson said. “Her courage, the skill of her lawyer, Kevin Kijewski, plus having right on her side made this decision possible and draws attention to Secretary Benson’s consistent overreach.”
The decision carries additional political significance because Benson is the Democratic nominee for Michigan governor in Tuesday’s election. Republicans have made election administration and transparency central issues in their criticism of her tenure as secretary of state, while Benson has defended Michigan’s election procedures and maintained that her office operates within applicable legal requirements.
The court’s findings concern the preservation of administrative records, not allegations that ballots were improperly counted or that election results were manipulated. Keeping the original electronic pollbooks available for review can support future audits or investigations, but the need to preserve records does not itself establish election misconduct.
Benson and the Michigan Department of State may appeal the ruling. Unless a higher court intervenes, however, the permanent injunction prevents enforcement of the seven-day deletion requirement and obligates Michigan election officials to retain the electronic pollbooks in accordance with the court’s interpretation of state law.
The decision takes effect as Michigan voters participate in an election involving the governorship, a competitive U.S. Senate race and numerous congressional and state offices. It ensures that electronic records documenting voter activity during the Nov. 3 election will remain available for the legally required retention period rather than being erased under the invalidated administrative rule.
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