Michigan judge upholds Jocelyn Benson’s absentee ballot application mailings

Court of Claims Judge Cynthia Stephens ruled that Michigan Secretary of State Jocelyn Benson, above, has “clear and broad authority to provide advice and direction” for elections. (File photo)

Michigan Secretary of State Jocelyn Benson was within her rights to send absentee ballot applications to all of the state’s 7.7 million registered voters earlier this year, a Court of Claims judge ruled Wednesday. 

It’s a victory for Democatic Benson, who came under fire from President Donald Trump and other Republicans for the decision.

The court’s decision was expected after the same judge, Cynthia Stephens, denied a preliminary injunction request in June to stop Benson from mailing the applications in the first place.

Benson is required by law to provide information, instructions and supplies to help voters cast ballots, wrote Stephens, who is an appointee of former Democratic Gov. Jennifer Granholm.

“Defendant has clear and broad authority to provide advice and direction with respect to the conduct of elections and registrations,” Stephens wrote. “That is all she has done here: she has provided direction for conducting an election during an unprecedent[ed] global pandemic involving a highly contagious respiratory virus.”

Nevin Cooper-Keel, Yvonne Black and Robert Davis filed cases against Benson this year when she announced she planned to mail applications for an absentee ballot to all registered voters at a cost of about $4.5 million in federal funding.

They contended that legal precedent barred clerks from sending unsolicited applications because they could be construed as campaign “propaganda.” Stephens called that argument “unpersuasive.”

“The Court ruling affirms it is both within our authority and our obligation to ensure voters know their voting rights and how to exercise them this year,” Department of State spokesperson Tracy Wimmer wrote to Bridge via email. 

Davis told Bridge Wednesday he has already filed an emergency appeal with the Michigan Court of Appeals. 

"The Court of Claims opinion essentially rewrote Michigan election law, which is not acceptable under statutory construction. Judges are not legislators," Davis said. "I'm extremely confident that Judge Stephens' opinion will be reversed in short order."

Cooper-Keel said he’s not surprised about the decision because Stephens was appointed by a Democratic governor. 

“I have suspicions that there is judicial activism going on,” he said.

Benson argued in May the mailing was important to ensure voters are aware of their right to vote absentee for no reason, especially during a pandemic in which voting in person can pose a health risk. A 2018 initiative allowed all eligible voters to vote by mail. 

Republicans contended Benson would have been better off spending money to improve safety at polling places. Others contended it could increase voter fraud.

Trump called Benson a “rogue Secretary of State” on Twitter and threatened to withhold funding for Michigan, falsely claiming that she planned to send out ballots to Michigan voters. He later deleted the tweet and replaced it with a similar one citing “applications.” 

Benson responded that other secretaries of state, including GOP election officials in Iowa, Georgia, Nebraska and West Virginia had taken similar steps.

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Wed, 08/26/2020 - 2:03pm

I'm not surprised. She's doing a great job!

Wed, 08/26/2020 - 2:07pm

Meanwhile DeJoy allegedly broke the law by making operational changes without first seeking approval from the Postal Regulatory Commission and in other matters Mike Pompeo the Hatch Act.

Thu, 08/27/2020 - 9:07am

Instead of simply mailing out applications, it would have been better for all of us to streamline the application process by allowing application requests to be processed in other ways than mailing to the clerk an application form. How about if you are on the registered voter roll, have no change of address, and no change of homestead exemption, then something as simple as an e-mail could get you a ballot. Or make use of the mobile SOS office as an input to get an absentee ballot. Or enhanced use of the SOS kiosks. Mailing out applications from what could be an outdated voter register means that some applications will get in the wrong hands. Any absentee process should mimic all the steps used during in-person voting to insure voter integrity.

Reynolds Farley
Thu, 08/27/2020 - 10:03am

I am glad the absentee ballots applications were sent to voters but there appears to be a major discrepancy. The Census Bureau's 2017 ACS reported that there were 7,435,000 Michigan residents who were U S citizens and age 18 or over. Our Secretary of State sent ballot applications to 7.7 million persons. This may be as much as 265,000 in excess of the number of Michigan citizens of voting age. Quite likely many applications were sent to people who moved away from the state and a few who died. In order to thwart the many legal challenges that will follow this year's election, would it have been desirable to first send a double post card to presumably registered Michigan voters to establish their current address before sending them an application for an absentee ballot?

Otto Stockmeyer
Thu, 08/27/2020 - 10:17am

Your subhead "An appeals judge rules that Michigan Secretary of State Jocelyn Benson was within her rights . . . ," is not quite correct. The Court of Claims is a trial court. Although it is staffed with members of the Court of Appeals, when sitting as Court of Claims judges they are not acting as appeals judges but rather trial judges.

Thu, 08/27/2020 - 1:51pm

I really don't care, but if a citizen is not intelligent enough know when to vote and methods for how to vote, do we really want them voting?