Judge: Benson has power to mail absentee ballot applications

Beth LeBlanc
The Detroit News

A Michigan Court of Claims judge dismissed Tuesday a suit challenging Secretary of State Jocelyn Benson's decision to mail absentee ballot applications to every registered voter in Michigan ahead of the August and November elections. 

The court in June had denied a preliminary injunction seeking an immediate stay on the mailing. But Benson asked the court to dismiss the case, a request the court granted Tuesday but was immediately appealed.

As the state's chief election officer, Benson has the authority that outranks "those local election officials over whom she has supervisory control" and thus was able legally to send the applications where no such request had been made, Court of Claims Judge Cynthia Stephens said. 

"Given the ubiquitous attention paid to the importance of social distancing and limiting large gatherings, particularly indoor gatherings, the notion that it would be 'advisable' to inform this state's electorate of its constitutional right to vote by absentee ballot, as opposed to in-person voting, cannot reasonably be disputed," wrote Stephens, an appointee for Democratic former Gov. Jennifer Granholm. 

Michigan Secretary of State Jocelyn Benson talks about the Aug. 4 primary.

The lawsuit filed by three Michigan residents, including serial litigant Robert Davis, came after Benson mailed absentee ballot applications to Michigan's 7.7 million qualified voters ahead of the August primary to encourage voting from home during the pandemic. 

Some individuals and Republican leaders questioned the decision, arguing that Michigan's decentralized election system prevented Benson from taking over what is usually the purview of individual clerks. 

GOP lawmakers criticized the decision again when they began receiving reports that applications had been mailed to people who were long since dead or moved. Benson said it served as a good opportunity to update the state's voting lists. 

Davis filed an appeal within hours of the Court of Claims issuing its decision. 

"With all due respect, I disagree with Judge Stephens' opinion," he said. "This matter has been appealed and currently the Court of Appeals is considering my request for an expedited appeal so this matter can be decided well before the presidential election and before Secretary Benson can engage in any more mailings before the upcoming general election.”

Even with the mailing, voters retain the right the choice of whether to complete the application, the opinion said, comparing the mailing to Benson giving "supplies" to voters as allowed under Michigan law. 

The court rejected the argument that a 2007 appellate ruling banning the Detroit city clerk from sending unsolicited ballot applications, arguing that the Secretary of State's office possesses more authority than a city clerk.

Besides that, the clerk at the time was up for re-election and could have been using the mailing as "propaganda," the court observed. The passage of no-reason absentee voting in 2018 also changed the context under which Benson sent the applications. 

Benson is not confined by the same state laws as a clerk, Stephens said. 

"Rather, insofar as elections are concernd, defendant's authority is discretionary and she possess authority over municipal officers," the judge wrote.