Benson has had two separate complaints filed against her with the Michigan Bar in recent weeks, one from former Michigan Secretary of State Ruth Johnson focused on Benson’s dishonest court pleadings, and another from Michigan Republican Party Chairman Pete Hoekstra regarding Benson’s large campaign contribution to Michigan Supreme Court Justice Kyra Bolden while Bolden was considering a case against Benson at her court. The Michigan Attorney Grievance Commission is reviewing those complaints, and Benson’s defenders will no doubt rationalize them by arguing they were filed by Benson’s partisan opponents.

Getting past the partisan back-and-forth is why it was so significant when a senior judge from the 6th Circuit Court of Appeals, David McKeague, concluded in his judicial opinion that “in defiance of the U.S. Constitution and state election law, Michigan Secretary of State Jocelyn Benson manipulated the presidential ballot in Michigan.”

There has been consistent nonpartisan criticism of Benson’s administration of elections, and I have personally been involved with three successful lawsuits in the past months that have resulted in multiple Michigan state judges forcing Benson to bring her instructions to local clerks and election officials into conformance with Michigan election law. Perhaps most egregious on that front has been Benson’s persistent efforts to undercut the verification of signatures on absentee ballots. Fortunately, courts consistently have stood up to her and told her the law must be followed and signatures verified.

But it is Benson’s behavior toward former presidential candidate Robert F. Kennedy Jr. that caused 6th Circuit Court of Appeals Judge Chad Readler to say that “without explanation, and in violation of state law,” Benson added Kennedy’s name to the 2024 general election ballot. And 6th Circuit Court of Appeals Judge Amul Thapar sums up that Benson’s “reinstatement of Kennedy on the ballot unconstitutionally compels Kennedy’s speech and violates Michigan’s own deadlines. It also forces Kennedy to be on the ballot for an office that he no longer intends to hold if he were to win. And it has the unfortunate result of misleading Michigan voters.”

Thapar notes that Benson’s lawless behavior “happens at a time when it is crucial for state governments to assure voters of the integrity of their elections.” In light of the long history of losing candidates challenging the results of their election — four of the past six losing presidential candidates have done so — it is critical that voters have confidence in the integrity of their election administrators, which is difficult when, as McKeague explained, “This case involves yet another attempt by a state election official to influence the upcoming presidential election by manipulating state election procedures.” Benson’s office, as described by McKeague, “intentionally altered the ballot by inserting a ‘frivolous’ presidential candidate.” 

Readler outlines Benson’s hypocrisy in administering Michigan’s 2024 presidential ballot: “One major party candidate [i.e., Joe Biden] dropped out of the race just weeks before his party’s late-August convention, and after winning every state primary, including Michigan. The week after that convention, Kennedy sought to do the same, in large part due to his rival’s departure from the race. The Secretary voiced no concern over the former … yet she fights tooth and nail to oppose the latter.” 

Worse yet, Readler expounds that Benson “never explains why she tainted the state’s presidential ballot with the name of an individual who is not seeking office, after previously excluding him.”

Readler continues expressing disgust with Benson’s conduct, writing that she “unilaterally chang[ed] the rules of the game” and that Benson’s actions have “cast doubt over the integrity of Michigan’s electoral process.”

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McKeague reinforces, “No matter how many justifications Secretary Benson can conjure up, the outcome is the same: putting Kennedy’s name on the ballot will mislead Michigan voters. It will trick them into thinking that Kennedy is still vying to be the President of the United States. Secretary Benson’s actions violated Kennedy’s First Amendment rights and defy basic common sense.”

It is extraordinary when so many esteemed U.S. Court of Appeals judges are all criticizing the actions of a public official and at a time when Michiganders, and all Americans, need to have confidence in the administration of elections. Most Americans are likely to join McKeague’s conclusion that “I can only hope that the weight of one state election official’s thumb does not tip the scale of a national election.”

Charlie Spies is a former counsel for the Republican National Committee and former counsel to the chairman of the Federal Election Commission. He leads the political law practice at Dickinson Wright PLLC.