Benson Complaint Sparks Election Records Fight

It's All Talk on a Friday morning. I'm Kevin Deets coming to you from the Golden Tower of the Fisher Building. The number is 1-800-8-9-57. 1-800-8-5-90 W-JR. We're going to take your calls. Read your text coming up at 935. So pick up the phone and be a part of the show. There's a new legal fight over Michigan election records, and this one comes down to a pretty straightforward question. What exactly has to be preserved? And for how long, Bridgewater Township clerk, Michelle McQueen, represented by attorney Kevin Kieski, is challenging a Michigan rule requiring electronic poll book software and associated files to be deleted from devices within seven days after final canvas and certification. The lawsuit's argument is that some of those electronic files contain election records that federal law requires officials to preserve for 22 months after federal elections. So one says you must get rid of it. The other one says you can't. What are you supposed to do? Let's bring in attorney Kevin Kiyoski. Good morning, sir. How are you? Doing okay, Kevin. How about you? I appreciate you being here. This is something most of our listeners are not following, probably don't understand. Can you walk us through what's going on here? Yeah, absolutely. So as you said, my client is Michelle McQueen. She's the township clerk out of Washington. So we had the primary election on August 4th, and there is a state rule that was put up by Jocelyn Benson that says seven days after the results are certified, you have to delete the electronic poll book. But federal law, as you said, and it's been this way for decades, you have to keep those records for 22 months. So she's being told basically to pick a crime, which particular law or regulation she needs to break, and that's not the right thing to do. My client actually asked the Secretary of State actually at the beginning of July, hey, how do I go ahead and resolve this? And guess what the result was? Crickets. So that's why we went to court to get a judge to tell us what the right thing to do here is. Yeah, I mean, if it's a crime either way, you're really, she's really stuck in a tough spot. Tell us why the state wants to delete these records in seven days and why the feds want to preserve them. Well, it's interesting. I think that when it comes to the state, they probably have this whole idea about election security. They don't want to have, for example, laptops with the electronic poll book sitting in closets. And I'm not necessarily, of course, against that. But it's really easy here. You can secure a laptop without destroying the records. Just encrypt it, pull it off the device, put it in a vault somewhere. Because right now, if we destroy the records, you're going to actually have a lot of the metadata and other things not captured. The state makes the argument as well, and I anticipate it. Well, there's a secure download or upload to the... qualified voter file in Lansing to capture everything. But we know it's not true because even the FOIA documents from the Secretary of State tell us otherwise. Does your client or do you have an opinion on which one is the way to go? Is one better than the other for election integrity?

I think that when it comes to election integrity, we have to follow the federal law. Our complaints talk about three different things, and I won't get into all the nerd stuff. But we talk about the supremacy clause in the federal constitution. The federal law supersedes state law. So we have to follow the federal law. And as well as part of a public policy argument. If we're able to secure these records electronically at the local level, then there's really no reason to delete it. And the good news is that when it came to the judge, under 24 hours after filing the suit, said at least on an initial basis, temporary basis, he agreed. So we actually have the rule suspended as it relates to my client until the court's able to rule on it. So no records are going to be deleted at least right now. There are some exceptions, right, for recounts or scheduled audits, things like that. Does that alleviate the concerns or not really, or does it not really address the main core of your lawsuit? It doesn't address it at all in the reason being because those are conditional things. Those are things that may happen. And we can have none of those things happen regarding a recount or otherwise, but you're still violating federal law. The way I like to kind of describe it to folks is like you have this sort of Damocles, you know, this Grecian mythical figure kind of hanging over your head. And it's just enough that you have it there. So are you going to disobey the state and get in trouble or are you going to disobey the federal government and potentially get in trouble too? And this rule came into effect last year in 2025. This is the first federal election where this rule comes into play here in Michigan. So we got to get clarity because we actually have about 1,600 clerks across the state where this is actually going to be impacting them. It's not just my clients, all of them too. Yeah, right. So in theory, they could follow the state direction to get rid of these files after seven days, and suddenly they could face federal charges potentially for violating the federal law. I mean, they have to be concerned about what's going to happen here. What, I mean, what efforts did you make to find out from Secretary of State Jocelyn Benson's office what actions you should take? Well, when it came to my client, she actually sent a certified letter requesting a ruling on this at the beginning of July, saying, which law do I follow? And also, can you please provide me with guidance? She didn't get a response. Oh, well, let's look into that. She didn't get a response that said anything definitive. It was just crickets. I think it's been 38 days, 39 days now. And the problem is we can't just have silence. And this has been an ongoing problem because when it comes to the House subcommittee regarding election integrity in the Michigan legislature, they asked a similar question last year, any formal request. And guess what? They never got a response either. So we're like, we're tired of waiting and we don't want to have any type of.

problem for my client and by extension anyone else. So that's why we need resolution. And I'm very thankful that the judge said, I'm putting this on an expedited track. This very well could be completely resolved this month during the month of August. The internet is kind of jumping on this story and people out there are saying. you know what what is uh Jocelyn Benson trying to hide is there any evidence that anybody is deliberately attempting to conceal election information or is this lawsuit strictly about what you believe is a conflict between the two uh the two different rules the between the federal and the state It's really the latter. So, I mean, it's trying to resolve this very important legal question. But as well, I think in terms of public policy moving forward, this can certainly put a lot of these folks that have questions and concerns about our elections at ease, knowing that these records will still be there. So if we're able to do that moving forward, I think we're going to be able to enlarge measure, alleviate concerns to folks. and make sure that we promote accountability. Is there a workable compromise? I mean, could Michigan just archive the relevant data for the 22 months and still remove the working software from these election laptops? Well, I think that going back to what I was saying before, if there were a way that the state would say, let's encrypt this stuff where the Secretary of State has a copy and there's a copy kept or retained at the local level, that might be a workable solution. But we're actually not going to know until a judge decides. And, you know, originally when I was confronted with its issue by a clerk, my client, I said, you know what? Let's give them the benefit of the doubt. I said, write them and ask for guidance and see what can happen in crickets, which is absolutely the wrong way to go about this. Attorney Kevin Kieski, thank you so much for coming on and walking us through this, and hopefully it will get resolved in the next month. Thank you so much. My pleasure. Thanks so much. All right. We're going to take a quick break. When we come back, we're going to talk Dream Cruise. Do you love it or do you hate it and why? It's all talk. I'm Kevin Deetz.