Michigan mail-in ballots must reach clerks by Nov. 3, appeals court rules

Friday’s decision may have a major impact on the number of absentee ballots that are counted in Michigan. (Bridge photo by Monica Williams)

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.”

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Erwin Haas
Sat, 10/17/2020 - 6:57am

The federal constitution specifies that the state's legislature will make the rules that govern the election of the federal house and senate.

Annie R.
Sat, 10/17/2020 - 9:20am

This is clearly a case of trying to suppress voters. Postmarked by the date should be enough, as it is for tax returns. Why we are not making it easier for people to vote during a pandemic is beyond reason.

Charlie Day
Fri, 10/23/2020 - 9:41pm

Voting has always been done on November 3 for the presidential election;
Everyone's votes count equally and are equally required to vote by November 3;
I am a registered Democrat and wholly endorse this.
Go back to school, kid, it looks like you didn't learn anything the first time around.

George Hagenauer
Sat, 10/17/2020 - 10:16am

If you are mailing after October 19th (and by October 30th preferably way before that) do it in the same zip code as your clerk as that means the ballot stays in the zip code for delivery as opposed to being sent to a sorting center outside of your community. This of course benefits smaller and often rural areas over multi-zip urban areas. A more critical issue is getting registered. You can register and vote the same day and at your local clerk's office. Many of them have extended hours the two weeks before the election either evenings or weekends so there are options to vote absentee that doe not involve having to use the mails.

Bob Schlueter
Sat, 10/17/2020 - 10:38am

No surprise here. There is only one political party making it hard to vote. Guess which one. Pathetic!!

Otto Stockmeyer
Sun, 10/18/2020 - 1:51pm

In your story on the Court of Appeals decision on counting ballots, thank you for identifying the members of the panel. Too often the judges of our mid-level court go un-named. https://info.cooley.edu/blog/name-those-judges

Legal Beagles
Mon, 10/19/2020 - 8:59am

What ever happened to the "mailbox rule"?

Otto stockmeyer
Mon, 10/19/2020 - 12:03pm

A contract law doctrine, the mailbox rule applies only to the acceptance of an offer. All other communications must be received to be effective.

Vote for Democrats!
Mon, 10/19/2020 - 9:01am

This is why YOUR vote MATTERS:

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.

Tue, 10/20/2020 - 8:16am

Give me a reason why a ballot postmarked before Nov, 3rd should not be counted. I agree that people should not wait until the 11th hour to mail there ballot. Trump pack your bags. No not the ones under your eyes. R.L.