Michigan clerks must accept late ballots if mailed by Nov. 2, judge rules

Beth LeBlanc
The Detroit News

Lansing — A Court of Claims judge ruled Friday that Michigan clerks must accept late ballots so long as they are postmarked no later than Nov. 2 and received before the deadline for certifying election results, or 14 days after the election. 

The preliminary injunction, which applies only to the Nov. 3 election, comes about a month and a half after the Michigan Supreme Court declined to hear an appeal from the League of Women Voters challenging the law. 

Judge Cynthia Stephens noted the separate case from the Michigan Alliance for Retired Americans included a renewed motion after the August primary, from which they provided evidence that showed "in light of delays attributable to the COVID-19 pandemic, mail delivery has become significantly compromised, and the risk for disenfranchisement when a voter returns an absent voter ballot by mail is very real."

"Plaintiffs presented affidavit evidence that many voters were in fact deprived of having their absent voter ballot tallied in the August primary," wrote Stephens, noting more than 6,400 valid ballots were rejected because they were received after the Aug. 4 primary.

"... Affidavits and testimony detailed that despite voters requesting absentee ballots weeks in advance of the primary, their actual ballot arrived as late as Election Day," wrote Stephens, an appointee of Democratic former Gov. Jennifer Granholm

Attorney General Dana Nessel's office said it will not appeal Stephens' decision, nor a separate voting decision issued Thursday in federal court.

"With the November election quickly approaching, voters and local clerks need certainty — and these decisions provide that," said Ryan Jarvi, a spokesman for Nessel. "Therefore, we do not intend to appeal, but rather will use this time to educate and inform voters of their rights.

Secretary of State Jocelyn Benson, who is the subject of the suit, had asked the Legislature to change state law to allow clerks to count late ballots so long as they are postmarked before Election Day. She encouraged voters on Friday to get their ballots in early regardless of the new extension. 

"We still want voters to make a plan to vote now, and not wait until the last minute if they want to vote by mail," Benson said. 

Serial litigant Robert Davis said he plans to file an emergency appeal as a voter who is "adversely affected" by the possibility that late ballots would still be counted.

The Michigan Republican Party criticized Benson and Nessel for deciding not to appeal the ruling, saying their decision was evidence of "an executive branch run amok."

Benson and Nessel "are standing idle hoping that their political party will benefit from legal chaos," Michigan Republican Party Chairwoman Laura Cox said. "This dereliction of their constitutional duties is unacceptable."

The decision was celebrated by the retirement associations that had pushed for the changes. Seniors can "rest easier" by voting without putting their health at risk, they said.

“This ruling means that we can be confident that any mail delays will not keep our votes from being counted," said Dick Long, president of the Michigan Alliance for Retired Americans.

Stephens also granted a request for a preliminary injunction that would allow absentee voters to select anyone of their choosing to assist them in delivering their ballot between 5 p.m. Oct. 30 and Nov. 3, when help from the clerk's office may be unavailable. 

Michigan law prohibits absentee voters from enlisting help in returning their ballot by anyone other than a mail-handler, clerk or assistant to the clerk, a person living in the household or a member of the immediate family. 

"The court is convinced that the time deadline imposed on the fail-safe option of seeking assistance from the clerk risks leaving too many voters without the opportunity of receiving assistance in returning their ballots," Stephens wrote. 

Stephens denied a request for a preliminary injunction on the requirement that absentee voters supply their own postage. 

The ruling comes the day after a federal judge blocked a Michigan law that prevented groups from transporting voters to polling locations while also upholding a separate law that prevented "ballot harvesting," or gathering completed absentee ballots from voters. 

The Priorities USA super political action committee filed the lawsuit almost a year ago challenging Michigan's laws banning those activities. The group, which described itself as a "nonprofit, voter-centric progressive advocacy and service organization," has filed several suits against the state over the last year over Michigan's voting laws. 

In enjoining the state's law on vehicle transport, U.S. District Judge Stephanie Dawkins ruled Wednesday that "it is unclear how paying for a taxi or Uber is any more likely to influence a voter than offering to transport them by way of a volunteer driver in a non-profit corporation's minivan."

Additionally, Dawkins said, "Congress implemented a statutory scheme and gave citizens the right to spend money on transporting voters to the polls." 

Stephens also ruled "the state's interests in preventing fraud and abuse in the absentee ballot application process and maintaining public confidence in the absentee voting process are sufficiently important interests and are substantially related to the limitations and burdens" placed on soliciting or requesting the collection or delivery of ballots under state law.

"Given the lack of evidence that any voters have been affected by the limits on their choice of assistance, there is no basis for the court to conclude that Michigan's law stands as an obstacle," Dawkins said.