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Michigan Court Of Appeals Rules Secretary Of State May Send Unsolicited Absentee Ballot Applications Directly To Voters

 

On September 16, 2020, the Michigan Court of Appeals decided that it was not unlawful for the Michigan Secretary of State to send unsolicited applications for absent voter ballots directly to the address of registered voters.

In Robert Davis v Secretary of State, __ Mich App __; __ NW __ (2020)(Docket No. 354622), the Plaintiff filed suit against the Secretary of State after receiving an unsolicited absent voter application in the mail that he could to apply for an absentee ballot from the local city or township clerk.  Secretary of State Jocelyn Benson announced that applications would be mailed to all registered voters giving them the option to vote absentee by mail in an effort to combat the spread of the COVID-19 virus.  President Donald Trump has publicly asserted for these past several months that mass voting by mail will lead to widespread fraud.  The plaintiff sought a declaratory judgment that the Secretary of State lacked authority under state law to distribute unsolicited applications and a permanent injunction to prevent the Secretary of State from engaging in mass mailing of said applications.  Several other registered voters had filed similar suits.  The Michigan Court of Claims threw out the lawsuit on summary disposition, finding that there was no genuine issue of fact that the Secretary of State did not have this authority.  The Plaintiff appealed to the Michigan Court of Appeals.

The Plaintiff acknowledges that Michigan voters approved Proposal 3 in the 2018 election and amended the state constitution to provide all registered voters can vote by absentee ballot without giving a reason.  He also acknowledges that the Michigan Legislature passed Public Act 603 of 2018 immediately after the election and amended MCL 168.759 to carry out this intent.  However, these amendments did not expressly authorize the Secretary of State to engage in mass mailing of absentee ballots.  Nevertheless, the Secretary of State sent millions of applications to voters ahead of the August 4, 2020 primary election and the November 3, 2020 general election accompanied by a letter encouraging voting from home to help curtail the pandemic.  Plaintiff alleges that there was no governmental authority for these unsolicited mailings and should be enjoined.

In support of his position, Plaintiff relies on Taylor v Currie, 277 Mich App 85; 743 NW2d 571 (2007) where the appellate court did preclude an election official from mailing unsolicited voter applications to registered voters.  In that case, the Detroit city clerk (a candidate in the election) sent unsolicited applications to nearly 150,000 voters in the city.  The Court of Appeals found that the city clerk exceeded her authority under statute and mailing the unsolicited ballots was prohibited conduct.  As a result, this prohibition should also apply to the Secretary of State.

The Michigan Court of Appeals disagreed.  The majority of judges found that, as the chief elections officer, the Michigan Secretary of State “had the inherent authority to take measures to ensure that voters were able to avail themselves of the constitutional rights established by Proposal 3 regarding absentee voting.”  Furthermore, the majority found that the Taylor case did not apply in this situation.  The Michigan Secretary of State “is not a candidate in the forthcoming election, nor has she limited her mailing of applications to a particular subset of voters.”  The Court found “that the Secretary of State’s action in sending an application which each registered voter was free to fill out and return, or not, fell within her authority as chief elections officer of the state, and comported with her constitutional obligation to liberally construe Const 1963, art 2, §4(1) to effectuate its purposes.”  As a result, it was not an abuse of discretion and there was no basis to enjoin the conduct.

Interestingly, Judge Meter dissented on the basis that he believed the statute did provide the means for distribution of absentee ballot applications.  In fact, MCL 168.759(3) states “[a]n application for an absent voter ballot under this section may be made in any of the following ways:”

  • (a) By a written request signed by the voter.
  • (b) On an absent voter ballot application form provided for that purpose by the clerk of the city or township.
  • (c) On a federal postcard application.

None of these provisions permitted the unsolicited distribution of absent ballot applications and, by its own plain language, the local clerks are the only ones empowered to do so.  In addition, the ballot application must be provided on request.  The majority, however, believes the statute to be permissive because it uses the word “may”, not “must” or “shall”.  Being permissive, the statute does not necessarily preclude other methods to distribute absentee ballot applications.  The Michigan Court of Appeals concluded that the Secretary of State’s actions did not interfere with voter rights, that it is ultimately up to the voter to decide to apply or not for the absentee ballot, and that the Court of Claims properly threw the lawsuit out.

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

 

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