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Republican Party sues to stop late ballot ruling; high court considers case

Beth LeBlanc
The Detroit News

Three GOP-led groups are making urgent appeals in state court to gain the legal standing needed to appeal and overturn a recent ruling requiring clerks to count late ballots and making changes to the rules governing ballot collection. 

The Michigan Supreme Court on Friday issued an order that expedites consideration of the requests to intervene and ordered a ruling in at least one of the cases by Wednesday. 

The potential challenges from the GOP-led Legislature, the Republican National Convention and the Michigan Republican Party stemmed from a Sept. 18 ruling by state Court of Claims Judge Cynthia Stephens, an appointee of Democratic former Gov. Jennifer Granholm.

Stephens ordered clerks across the state to accept ballots postmarked by Nov. 2, even if they arrive within 14 days after the election. She also declared that between Oct. 30 and Nov. 3, voters could choose anyone to help them submit their absentee ballots — contrary to a Michigan law that limits the assistance to family, people in the same household, mail carriers or clerk assistants.

The collection of ballots by people outside of those categories is sometimes called "ballot harvesting," and Republicans argue it opens the door for election meddling.

The GOP-controlled Legislature, the RNC and the Michigan Republican Party sought to intervene in the case early on but were denied. 

But after Stephens issued her order and the defendants in the case — Democratic Attorney General Dana Nessel and Secretary of State Jocelyn Benson — said they wouldn't appeal the decision, all three Republican groups went to court. 

The Legislature on Tuesday asked Stephens to reconsider its motion to intervene in light of Nessel and Benson's announcement that they wouldn't appeal. 

The RNC, led by Chairwoman Ronna McDaniel, and Michigan Republican Party filed suit Thursday in the Court of Claims asking Stephens to declare the laws requiring on-time ballots and prohibiting ballot collection constitutional. 

"With no parties defending the enjoined laws, the Republican committees seek declaratory relief that the harvesting ban and ballot receipt deadline are enforceable," the Republican parties wrote in a suit filed Thursday. 

The lawsuit was again assigned to Stephens.

Nessel's office is reviewing the complaint, spokesman Ryan Jarvi said earlier Friday. 

The Michigan Supreme Court said Friday it would immediately consider a request from the RNC and Michigan Republican Party seeking to intervene in a separate case, a ruling that could have an effect on whether the groups can also intervene in the absentee ballot case. 

Specifically, the high court will reconsider an earlier denial of intervenor status in a case regarding public money going to non-public schools and has asked for briefs on that topic by Wednesday. If granted intervenor status in that case, the Republican parties also likely would be able to intervene in the absentee ballot case. 

The Supreme Court also ordered Stephens to rule by Wednesday on whether the  Legislature could intervene in the absentee ballot case. 

Typically, outside groups are prohibited from intervening in a case filed in the Court of Claims because the Michigan court is limited to handling lawsuits against the state. If the Supreme Court grants intervenor status to the RNC and Michigan Republican Party, it could open the door to other groups that have sought to do the same in the Court of Claims in recent years.

Republican National Committee Chairwoman, Ronna McDaniel, speaks during the Republican National Convention from the Andrew W. Mellon Auditorium in Washington, Monday, Aug. 24, 2020.

The continued challenge of Stephens' ruling will make what is already a confusing time for clerks and voters that much more stressful, said John Clark, a political science professor at Western Michigan University. 

But the filing also is not unsurprising considering what appears to be lower Republican absentee ballot participation, he said. 

A Detroit News/WDIV-TV poll of 600 likely Michigan voters found those planning to vote absentee favored Democratic presidential candidate Joe Biden by 43 percentage points, 68% to 25%. The Sept. 1-3 survey had a plus-minus 4-point error margin.

"If I’m a Republican here in Michigan, I’m worried," Clark said. "If Democrats are taking advantage of absentee voting, come Election Day, they’ve already voted. Republicans still have to make sure their voters show up.

"It creates an inequity between the parties that we’re just not familiar with. We just haven’t seen it in Michigan.”

The Michigan Legislature and Republican parties both have argued that their motivation to challenge Stephens ruling is to defend existing state laws and prevent voter fraud. 

In their filing Thursday, the RNC and Michigan Republican Party said Stephens' ruling on the harvesting and delayed receipt of ballot questions was "both legally and factually erroneous," the Republican parties wrote in their complaint. 

The parties noted the Court of Appeals ruled recently in a separate case that the ballot deadline "does not effectively preclude a voter from completing the process of voting by absentee ballot."

The suit also noted a Sept. 17 decision in federal court that upheld the harvesting ban as it applies to absentee ballot applications. Nessel's office has argued Stephen's ban applies to completed ballots and doesn't conflict with the federal ruling. 

"During these trying times of disruption caused by COVID-19, states have an even greater interest in avoiding judicial interference with the laws and processes which have long been in place to protect the integrity of elections," the Republican suit said. 

eleblanc@detroitnews.com