In a blow to voting rights advocates, Michigan absentee ballots must arrive at clerks’ offices by Nov. 3 to be counted in next month’s general election, a three-judge panel on the state Court of Appeals ruled Friday.
The decision, by three Republican judicial appointees, reverses a lower court ruling that would have given an additional two weeks for ballots postmarked by Nov. 2 to be counted in the 2020 election given the extraordinary circumstances of the coronavirus pandemic and slowed mail delivery times.
The decision also reverses the lower court’s decision to lift restrictions on who can handle absentee ballots, which would have temporarily allowed other people and groups to help voters transfer their ballots to clerks for the November election.
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Judges Thomas Cameron, Mark Boonstra and Michael Gadola, all appointed by GOP Gov. Rick Snyder, determined that the two rules — the existing ballot receipt deadline of 8 p.m. on Election Day and the bar on people transporting others’ ballots — don’t infringe on Michiganders’ right to vote in the November election. It is not the role of the judiciary, the judges wrote, to make changes to legislative policy.
“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,” Cameron wrote in the opinion.
The court noted the installation of hundreds more ballot drop boxes across the state, the addition of satellite clerk’s offices, and a recent legislative change that allows some clerks to begin processing ballots the day before the election as among steps taken to make voting more flexible for residents and efficient for election officials.
In striking down the other measures, the panel wrote: “While plaintiffs may view these efforts as inadequate first steps, there is no reason to believe that these specific efforts are constitutionally required, even in the midst of a pandemic. Instead, they reflect the proper ‘exercise of discretion, the marshaling and allocation of resources, and the confrontation of thorny policy issues,’ that the people have reserved exclusively for our Legislative and Executive branches to exercise.”
The decision reversed a ruling last month by Court of Claims Judge Cynthia Stephens, an appointee of Democratic Gov. Jennifer Granholm, that was celebrated by voting rights advocates even as they kept a wary eye on its expected appeal.
Plaintiffs in the case were the Michigan Alliance for Retired Americans, the Detroit chapter of the A. Philip Randolph Institute and three individual plaintiffs. The plaintiffs argued that the ballot receipt deadline, the ballot handling rule and the requirement that voters pay for their own postage to return ballots by mail posed an unconstitutional restriction on new absentee voting rights passed through a statewide citizens’ initiative in 2018.
State GOP leaders in the House and Senate and both the state and national Republican parties intervened in the case to challenge the plaintiffs after the named defendants Secretary of State Jocelyn Benson and Attorney General Dana Nessel, both Democrats, indicated they would not appeal Stephens’s decision.
It’s unclear if any of the plaintiffs will appeal Friday’s ruling with less than three weeks to go before the election.
Despite Stephens’ ruling, Benson’s office and most county and local clerks have continued to direct voters to send their absentee ballots in by Oct. 19 if they’d like them to count in the election on the chance that her decision is overturned. After Oct. 19, they recommend voters drop off ballots in person at ballot drop boxes or at local clerk’s offices to ensure they are counted.
Still, Friday’s decision may have a major impact on the number of absentee ballots that are counted in Michigan. As it now stands, only those that arrive at clerks offices by 8 p.m. on Election Day will count.
Late arriving absentee ballots proved a problem in state primaries. In August, 6,400 ballots that missed the deadline made up the lionshare of the 10,600 rejected ballots (other reasons included problems with signatures on the envelope and voters moving or dying).
In the August primary 1.6 million people across Michigan voted absentee, which shattered the record of 1.27 million from the November presidential election in 2016. Benson has estimated that two to three times more people could vote absentee this fall due to the pandemic and the expansion of absentee voting rights in 2018.
A record 2.8 million people have already requested absentee ballots for the Nov. 3 election, Benson’s office said earlier this week. Of those, 1 million have already returned them.
Michigan Democratic Party Chair Lavora Barnes released a statement Friday evening saying she’s “disappointed” in the court’s ruling, adding that “voters should not be punished for delays in the U.S. Postal Service or for unexpected emergencies that could make it a challenge for them to get to the polls on election day.”