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Michigan Court Of Appeals Reverses Preliminary Injunction And Rules That Absentee Ballots Arriving After 8 P.M. On Election Day Will Not Be Counted

by | Oct 26, 2020 | Election Law |


On September 30, 2020, the Michigan Court of Claims issued a preliminary injunction enjoining the enforcement of MCL 168.932(f) which required all absentee ballots to be received by the clerk by 8 p.m. on Election Day.  The court order provided that an absentee over ballot that is postmarked no later than November 2, 2020 and received within 14 days after the election is eligible to be counted.  In addition, the court order enjoined MCL 168.764a which restricted who can lawfully possess, solicit and deliver another person’s ballots.  Both injunctions were based on claims that these restrictions interfered with the constitutional right to vote during the COVID-19 pandemic.  The Michigan Legislature, as an intervening defendant, appealed the decision.  In Michigan Alliance For Retired Americans et al v Secretary of State, __ Mich App __; __ NW __ (2020)(Docket No. 354993), the Michigan Court of Appeals ruled that MCL 168.932(f) and MCL 168.764a were not unconstitutional and the preliminary injunction was set aside.

The majority ruled that the preliminary injunction should not have been granted because there was not a showing that the statutes were facially invalid.  The plaintiffs allege that their right to vote is infringed during the 2020 Election due to the effects of the COVID-19 pandemic and the postal service slowdown.  However, the provisions of MCL 168.764a have a legitimate purpose of combating voter fraud (despite its rare occurrences).  In addition, several steps have already been taken by the Michigan Secretary of State to ensure that voters can participate in the election process during the pandemic.  The injunction against MCL 168.764a was improper.

Regarding the injunction against MCL 168,932(f), the Court of Appeals noted that it already upheld the validity of that statute once this year.  On July 21, 2020, an appellate panel ruled in League of Women Voters of Michigan et al v Secretary of State, __ Mich App __; __ NW __ (2020)(Docket No. 353654) 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.”  The Michigan Court of Appeals found itself to be bound by that previous ruling and it was inappropriate for the Court of Claims to try and supersede it.

Judge Boonstra issued a concurring opinion fully supporting the majority decision but adding that the lower court engaged in judicial overreach that should not be ignored.  Courts exceeding their authority is a violation of the separation of powers and can be just as dangerous as the governor or the legislature exceeding their authority.

What should absentee ballot voters be aware of for Election Day?  To account for any slowdowns or disruptions in mail service due to the pandemic, it is recommended that the absentee ballot is mailed no later than one week before the election.  The sooner it is sent in, the better.  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.

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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