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Michigan Court Of Claims Rules Mail-In Ballots Postmarked Before But Received After Election Day Are Still Counted

by | Sep 28, 2020 | COVID-19, Election Law |


Judge Cynthia D. Stephens of the Michigan Court of Claims issued a preliminary injunction in Michigan Alliance For Retired Americans, et al. v Jocelyn Benson, et al., Case No. 20-000108-MM on September 18, 2020 providing the following:

  • “This court enjoins MCL 168.932(f) in this election from 5:00p.m. Friday October 30, 2020 until the close of the polls on November 3, 2020, in so far as it limits the class of persons who may render an absent voter assistance. As a result, a voter casting an absent voter ballot in the November 2020 general election may select any individual the voter chooses to render assistance in returning an absent voter ballot, but only for the limited time period when assistance from the clerk is not required, i.e., between 5:01 p.m. on the Friday before the election and the close of polls on Election Day.”
  • “Enforcement of the ballot receipt deadlines in MCL 168.759b and MCL 168.764a as they relate to the date and time by which absentee ballots must be received by the clerk in order to be tallied, is enjoined for this election only. All ballots postmarked no later than one day before election day, i.e., November 2, 2020, and received by the deadline for certifying election results, are eligible to be counted in the same manner as all provisional ballots.”

This preliminary injunction follows the decision on July 21, 2020 in League of Women Voters of Michigan et al v Secretary of State, __ Mich App __; __ NW __ (2020)(Docket No. 353654) where the Michigan Court of Appeals ruled 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.  That panel found that state law is clear that “[t]he 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.  Simply put, if a ballot reaches officials after 8 p.m. on Election Day, then it will not be counted.

However, Plaintiffs in this instance produced documents and affidavits showing that, “in light of delays attributable to the COVID-19 pandemic, mail delivery has become significantly compromised, and the risk for disenfranchisement when a voter returns an absent voter ballot by mail is very real.”  Slip op. at 3.  Ample evidence was provided that there are mail delays across the board due to “major operational changes”, “elimination of overtime hours”, and “large increase in mail volume associated with mailing absentee ballots”.  In fact, there was evidence that several ballots mailed in well ahead of the 8 p.m. deadline on the August primary election were not counted because they did not arrive on time.  Even the general counsel for the United States Postal Service acknowledged that state laws posed a significant risk of disenfranchisement because of current mail processing speeds.  None of these findings were challenged by the Michigan Secretary of State.

Plaintiffs also contend that the “voter assistance ban” laws in Michigan also works to frustrate voting because the statute restricts the pool of individuals who can render assistance to a voter to return an absentee voter ballot.  MCL 168.932(f) limits these persons to the following:

  • (1) a person whose job it is to handle mail before, during, or after being transported by a public postal service, express mail service, parcel post service, or common carrier, but only during the normal course of his or her employment;
  • (2) a clerk or assistant of the clerk;
  • (3) a member of the immediate family of the absent voter including father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild; or
  • (4) a person residing in the absent voter’s household[.]

A violation of the restrictions regarding the return of absent voter ballots constitutes a felony.  Plaintiffs argue that these limitations violate the state constitution and federal law in addition to furthering voter suppression in Michigan.

“In light of the unrefuted documentary evidence concerning the effects of the pandemic and mail delays, the Court concludes that the statutory ballot receipt deadline is, as applied, an impermissible restriction on the self-executing right to vote by absent voter ballot and to choose to return such a ballot by mail.”  Slip op. at 10.  These facts distinguish the holding in the League of Women Voters decision where the panel found the risk of ballots arriving exceptionally late as “extreme, and undoubtedly rare.”  Slip op. at 12.  The realities of the August primary election show that this simply is not true and the COVID-19 pandemic continues to rage on.  Likewise, the statutory limits on who can assist voters in returning an absentee ballot can prevent the timely submission of votes because the pool of helpers available may be small due to concerns about COVID-19.  The health risks can leave many voters without the opportunity to receive assistance to return the ballot.  “Under the facts of this case, and as applied, MCL168.932(f)’s voter assistance ban creates an unnecessary burden that tends to unduly restrict the rights enshrined in art2, § 4.”  Slip op. at 15.  For these reasons, the preliminary injunction was granted.

The Court of Claims, however, declined to extend the preliminary injunction to prevent absentee voters from having to pay for return postage to submit the ballot.  The nominal cost of stamps, according to the judge, does not pose a severe restriction on the right to vote.

Judge Stephens concluded:

  • “Balancing the harms and the public interest weigh in favor of injunctive relief as well. Undoubtedly, the public is benefited from preserving and furthering the right to vote. The Court finds that the relief granted in this opinion can be accomplished without imposing a meaningful inconvenience to the state. Allowing third parties to assist voters during the narrow window of time granted by this opinion does not, on the record before this Court, undermine or affect the state’s interest in preserving election integrity. So long as they are postmarked at the appropriate time—the same does not impose a significant burden on the state.” Slip op. at 18.

Therefore, an absentee voter ballot that is postmarked by no later than November 2, 2020, and received within 14 days after the election, is eligible to be counted.  During this timeframe, and only during this timeframe, a voter may select any third party of his or her choosing to render assistance in returning an absent voter ballot to the city or township clerk.  The Michigan Secretary of State and other governmental entities have already stated that they do not intend to appeal this decision before the November election.

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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