Appeals court rejects counting Michigan's late ballots

Beth LeBlanc
The Detroit News

Lansing — Michigan voters must have their absentee ballots to local clerks no later than 8 p.m. Nov. 3 after a state Court of Appeals panel on Friday overruled a lower court that had made allowances for late ballots.

Friday's appellate ruling also overturned a decision that would have allowed third parties to collect absentee ballots from voters in a three-day window ahead of Election Day. 

The ruling caused Secretary of State Jocelyn Benson's office to urge voters to mail in their absentee ballots no later than Monday in a bid to compensate for any delays in the mail system.

If a voter misses the Monday deadline, he or she should hand-deliver the ballot to the local clerk's office or a designated drop box, her office recommended.

It's not clear whether the party that filed the initial lawsuit, the Michigan Alliance for Retired Americans, will appeal the appeals panel's decision to the Michigan Supreme Court. 

In July, a 4-3 majority on the high court denied a request to hear an appeal from a separate group challenging the same 8 p.m. Election Day deadline.

In Friday's Court of Appeals decision, judges Thomas Cameron, Mark Boonstra and Michael Gadola ruled in a 3-0 opinion that the Court of Claims "abused its discretion" by granting injunctions that allowed for the collection of ballots by third parties and required clerks to accept late ballots if they were postmarked before Election Day and received within 14 days after Nov. 3. 

Court of Claims Judge Cynthia Stephens made the ruling on Sept. 18

Cameron, Gadola and Boonstra were appointees of Republican former Gov. Rick Snyder.

The Court of Appeals panel noted the appellate court had already ruled the 8 p.m. Election Day ballot deadline as constitutional in a separate case and the Supreme Court had rejected an appeal of that decision.

John Wysocki, of Livonia, deposited his absentee ballot on October 11, 2020. A Michigan Court of Appeals panel has ruled that an 8 p.m. Election Day deadline for receiving mailed ballots is constitutional.

"We are not only bound by that holding, but we fully agree with it," Cameron wrote in the majority opinion. 

In addition, the duty to draft and pass election integrity laws, such as the one that bans the collection of ballots by third parties, "is the responsibility of our elected policy makers, not the judiciary," he wrote. 

"To be sure, the pandemic has caused considerable change in our lives, but election officials have taken considerable steps to alleviate the potential effects by making no-reason absent voting easier for the 2020 election," added Cameron, noting the installation of more ballot drop boxes and satellite election centers. 

Moreover, the Legislature has allowed clerks to begin processing absentee ballots a day early. 

Putting limits on collection of ballots reflects the constitutional responsibility "to regulate and preserve the purity of elections," according to the ruling. "On balance, the ballot-handling restrictions pass constitutional muster given the state's strong interest in preventing fraud." 

Stephens ruled nearly a month ago 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, 14 days after the election.

"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.

Michigan Attorney General Dana Nessel, a Democrat, decided not to appeal the decision.

Benson, also a Democrat, said Stephens' ruling "recognizes many of the unique challenges that the pandemic has created for all citizens and will reduce the potential for voter disenfranchisement due to mail delays."

"No eligible voter should be disenfranchised through no fault of their own for exercising their right to vote by mail," Benson added.

When Benson and Nessel failed to appeal, the GOP-led Legislature, the Republican National Committee and the Michigan Republican Party sought to intervene and filed an emergency appeal, prompting Friday's decision. 

It's not clear whether Benson and Nessel could appeal Friday's decision because the judges ruled in favor of the defendants. 

Benson's office did not immediately comment about an appeal but urged voters to mail their ballots no later than Monday (Oct. 19). After that, voters should hand-deliver their ballots to the clerk's office or a drop box, Benson spokeswoman Tracy Wimmer said. 

"The Secretary of State has consistently urged voters to apply for and return absent voter ballots as far ahead of Election Day as possible," Wimmer said. "That has been and will continue to be her focus."

The Michigan Democratic Party echoed those reminders to voters and said it was disappointed in the court's decision. 

"Our courts should be following the example set by Secretary of State Jocelyn Benson, and reinforcing efforts that remove barriers to voting," Party Chairwoman Lavora Barnes said.

Senate Majority Leader Mike Shirkey, R-Clarklake, celebrated the ruling in a Friday tweet: "Happy to see this unanimous ruling to uphold the integrity of our elections process and reject judicial overreach."

Boonstra, meanwhile, wrote a separate concurring opinion "to underscore that judicial overreach is just as pernicious as executive overreach" — in what appeared to be criticism of Stephens, though Boonstra said he "cast aspersions on no one."

Too often, he said, judges "are induced, under the cloak of a robe, to impose policy preferences by judicial fiat.

"But policy-making under the guise of judicial decision making is simply tyranny by another name," he said. 

Perhaps it would be easier, Boonstra said, to live under a "benevolent dictator" who wouldn't have "to endure the inconvenience of others' input."

But the "inefficiencies" in the separate branches of power in the state "are there by design," he wrote, and a "price we willingly pay so that we may live under the banner of freedom in the United States of America."

The judiciary is meant to "decide actual controversies," not to "be hijacked to achieve political ends outside of the legislative process," Boonstra said. Even in a pandemic, he wrote, judges do not gain the authority "to rewrite statutes."