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Michigan Court Of Appeals Rules Absentee Ballots Received After Election Day Are Not Counted (Even If Timely Postmarked)

by | Jul 21, 2020 | Election Law |


On July 14, 2020, the Michigan Court of Appeals decided that absentee ballots received by the city or township clerk after Election Day will not be counted, even if the ballot was postmarked on or before the date that the polls closed.

In League of Women Voters of Michigan et al v Secretary of State, __ Mich App __; __ NW __ (2020)(Docket No. 353654), the League of Women Voters and three individual electors filed suit against the Michigan Secretary of State requesting a writ of mandamus that directs absentee ballots arriving after 8 p.m. on Election Day to be counted.  All parties acknowledge that Proposal 3 passed in 2018 and amended the state constitution to grant all Michigan voters the right to vote by absentee ballot without stating a reason.  After passage of the constitutional amendment, the Michigan Legislature enacted additional provisions to the election statutes to conform with these new requirements.  At issue is the new law regarding the receipt of absentee ballots:

  • “The ballot must reach the clerk or an authorized assistant of the clerk before the close of the polls on election day. An absent voter ballot received by the clerk or assistant of the clerk after the close of the polls on election day will not be counted.” MCL 168.764a.

The Plaintiffs argue that the deadline for absentee ballots in the statute contradicts the plain language of the constitutional amendment.  Specifically, Const 1963, art 2, §4(1)(g) guarantees voters the right to cast an absentee ballot “during the forty (40) days before an election” and the right “to choose whether the absent voter ballot is applied for, received and submitted in person or by mail.”  Plaintiffs maintain that if a completed absentee ballot is submitted in the mail and postmarked in the 40 days before the election, then it must be counted even if actually received after Election Day.  Plaintiffs also allege that the constitutional provision was self-executing, meaning that additional legislation to enact it was unnecessary.  Indeed, Const 1963, art 2, §4 states “[a]ll rights set forth in this subsection shall be self-executing” and “[t]his subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes.”  The Plaintiffs further allege that these laws violate the purity of elections, denies the right to vote, violates First Amendment free speech and assemble protections, and violates the right to a secret ballot.

In a 2-1 decision, the Michigan Court of Appeals found that the law is not unconstitutional.

Judge Sawyer, writing the majority opinion, observed the following:

  • “[W]hile the language of the amendment itself would not necessarily disabuse a voter of the belief that an absentee ballot mailed on election day but received thereafter would nevertheless be counted, nor does the language create a belief that it would. Thus, we cannot conclude that “the great mass of people” understood that the amendment it was voting on demands the deadline for casting an absentee ballot be based upon the time it is mailed rather than the time that it is received.” Slip op at 9.
  • “We similarly reject the argument that the statutory requirement that an absentee ballot be received by the election officials before the close of the polls on election day impairs the right of a voter to choose to submit their absentee ballot by mail. They certainly possess that right. And, while Proposal 3 creates a 40-day period during which a voter has the ability to receive and cast an absentee ballot, that does not mean that a requirement that a ballot must be received by the time the polls close impairs a voter’s ability to mail in their absentee ballot.9We acknowledge that it does affect when an absentee voter must mail their ballot so that it arrives by the deadline. But the fact that a voter must act sooner when they choose to mail in their ballot rather than deliver it does not deprive them of the choice; rather, it merely affects how and when that choice must be exercised.” Slip op at 9.
  • “While Proposal 3, by its express terms, is self-executing, we reject plaintiffs’ argument that that precludes the Legislature from applying a deadline by which absentee ballots must be received. As already discussed at length, a deadline is necessary. Indeed, even plaintiffs tacitly admit the necessity of a deadline by proposing a deadline of their own. And while the drafters of Proposal 3 could easily have included a deadline by which ballots must be received, they did not do so. Certainly, the drafters would have been aware of the existing requirement that ballots be received by the close of polls on election day, yet chose not to include a provision altering this deadline in their proposal. Presumably, the drafters were content to leave this decision to the Legislature. Indeed, [Proposal 3] provides that ‘the legislature shall enact laws to regulate the time, place and manner of all nominations and elections . . . and to provide for a system of voter registration and absentee voting.’” Slip op at 12.

The majority finds no infringement on the purity of elections, as the law provides voters many tools to ensure that their vote is properly submitted and counted.  The issues of free speech and assembly violations were also disregarded because the legislative regulations survived strict scrutiny analysis under the law.  Additionally, if the expense of postage or the concern that a return address would affect ballot secrecy is too much for the voter to tolerate, then he or she can return the ballot in person to the city or township clerk.

Judge Riordan concurred with the findings of the majority opinion, but wrote a separate opinion indicating that the court granting a writ of mandamus would be an improper infringement on the will of the people.  He opined “[w]e must leave the issue in the capable hands of the Legislature and the Executive which have the constitutional authority, resources, and access to the best practices throughout the country from which to craft solutions.”  Slip op at 5.

Judge Gleicher filed a dissenting opinion.  She believed that granting the motion to mandamus would be proper and that timely mailed absent voter ballots that arrive after the close of the polls but before the date of the canvass must be counted.  Const 1963, art 2, §4 provides that “[t]his subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes.”  She opines “[a]bsent voters who meet the requirements for voting, follow the rules, and mail their ballots before the deadline have a constitutional right to have their votes counted.”  Her viewpoint was outvoted by her colleagues.

As the COVID-19 pandemic continues, it is likely that many Michigan residents will exercise their right to vote by absentee ballot for their own safety.  To ensure your vote is properly counted, the absentee ballot should be mailed in at least one week during the election.  The sooner the better, as the normal speed of the U.S. mail service is disrupted by the ongoing pandemic.  Remember, the law says that the ballot must be received, not postmarked, by 8 p.m. on Election Day.  If you complete your absentee ballot less than 7 days before the election, then you should strongly consider turning in the ballot in person to the city or township clerk office.  This ruling is subject to change, as the Michigan League of Women Voters have already declared their intent to appeal the decision to the Michigan Supreme Court.

If you have any questions about election law, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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