Ever since the 2020 presidential election, there has been significant scrutiny surrounding the obtaining, returning, and counting of absentee ballots throughout the United States. To combat fraud, most states have laws that prohibit or restrict the return of absentee ballots to the city or township clerk’s office by someone other than the voter of said ballot. This is an issue of intense debate. Supporters of third parties returning absentee ballots say that it makes it easier for elderly or disabled voters to make sure their vote is counted timely. Critics say that the practice hurts election integrity by providing opportunities for unscrupulous people to handle and potentially tamper with several ballots in a way that can affect the ultimate outcome. Opponents of third-party ballot collection derogatorily refer to the practice as “ballot harvesting”.
Michigan law does not outright prohibit the return of absentee ballots by third-parties, but only permits specific people to do so. An unauthorized person handling an absentee ballot can be subject to significant criminal penalties.
WHO IS AUTHORIZED TO HANDLE AN ABSENTEE BALLOT IN MICHIGAN?
According to MCL 168.764a, “[t]he following instructions for an absent voter must be included with each ballot or set of ballots furnished an absent voter:”
- “Step 1. Enclosed you will find voting instructions as to the method of voting. Read these carefully and then vote the ballot.”
- “Step 2. After voting a ballot, place the ballot in the secrecy sleeve, if any. If a secrecy sleeve is not provided, refold the ballot to conceal your votes.”
- “Step 3. Place the ballot or ballots in the return envelope and securely seal the envelope.”
- “Step 4. Sign and date the return envelope in the place designated. Your signature must appear on the return envelope or the ballot will not be counted. If you are disabled or otherwise unable to mark the ballot and required assistance in voting your absent voter ballot, have the individual who assisted you complete the section on the return envelope entitled ‘TO BE COMPLETED ONLY IF VOTER IS ASSISTED IN VOTING BY ANOTHER INDIVIDUAL’.”
- “Step 5. Deliver the return envelope by 1 of the following methods:”
- “(a) Place the necessary postage upon the return envelope and deposit it in the United States mail or with another public postal service, express mail service, parcel post service, or common carrier.”
- “(b) Deliver the envelope personally to the office of the clerk, to the clerk, or to an authorized assistant of the clerk, or to a secure drop box located in the city or township.”
- “(c) In either (a) or (b), a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or an individual residing in the voter’s household may mail or deliver a ballot to the clerk for the voter.”
- “(d) You may request by telephone that the clerk who issued the ballot provide assistance in returning the ballot. The clerk is required to provide assistance if you are unable to return your absent voter ballot as specified in (a), (b), or (c) above, if it is before 5 p.m. on the Friday immediately preceding the election, and if you are asking the clerk to pick up the absent voter ballot within the jurisdictional limits of the city, township, or village in which you are registered. Your absent voter ballot will then be picked up by the clerk or an election assistant sent by the clerk. All individuals authorized to pick up absent voter ballots are required to carry credentials issued by the clerk. If using this absent voter ballot return method, do not give your ballot to anyone until you have checked their credentials.”
- “Step 6. 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.”
According to MCL 168.932(f), “[a] person other than an absent voter; 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; a clerk or assistant of the clerk; 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 a person residing in the absent voter’s household shall not do any of the following:”
- “Possess an absent voter ballot mailed or delivered to another person, regardless of whether the ballot has been voted.”
- “Return, solicit to return, or agree to return an absent voter ballot to the clerk of a city, township, village, or school district.”
A person who violates MCL 168.932(f) is guilty of a felony punishable by a fine up to $1,000.00 or up to 5 years in state prison, or both. MCL 168.935.
In addition, MCL 168.931(1)(b) states “[a] person shall not, either before, on, or after an election, for the person’s own benefit or on behalf of any other person, receive, agree, or contract for valuable consideration… [from] [d]oing anything prohibited by the [Michigan Election Law].” “Valuable consideration” includes, “but is not limited to, money, property, a gift, a prize or chance for a prize, a fee, a loan, an office, a position, an appointment, or employment.” MCL 168.931(4). In other words, a person cannot accept anything of value to help themselves or someone else commit unauthorized third-party ballot collection.
“A person who violates MCL 168.931 is guilty of a misdemeanor punishable by a fine up to $500.00 or up to 90 days in jail, or both. MCL 168.934.
WHAT CAN YOU DO IF YOU NEED ASSISTANCE RETURNING YOUR ABSENTEE BALLOT?
A city or township clerk who receives a request from an absentee voter for assistance in returning his or her absent voter ballot shall make arrangements to collect the ballot from the voter either personally or by sending an authorized assistant, if ALL of the following conditions are satisfied:
- “The clerk’s office issued the absent voter ballot to that absent voter.” MCL 168.764b(4)(a).
- “Upon the clerk’s request, the absent voter states that he or she is unable to return the absent voter ballot by the other means specified in instructions (a), (b), or (c) of Step 5 under section 764a.” MCL 168.764b(4)(b).
- “The absent voter telephones the appropriate clerk for assistance on or before 5 p.m. on the Friday immediately before the election.” MCL 168.764b(4)(c).
- “The absent voter requests the clerk to pick up the absent voter ballot within the jurisdictional limits of the city or township in which the absent voter is registered.” MCL 168.764b(4)(d).
The following rules apply to “authorized assistants” appointed to handle absentee ballots:
- “The clerk of a city or township may appoint the number of assistants necessary to accept delivery of absent voter ballots at any location in the city or township. An appointment as assistant to accept delivery of absent voter ballots must be for 1 election only. An assistant appointed to receive ballots at a location other than the office of the clerk must be furnished credentials of authority by the clerk. If an absent voter’s ballot is received by an assistant at any location other than the clerk’s office the assistant, upon request, shall exhibit the credentials to the absent voter before the assistant accepts an absent voter ballot. An assistant, before entering upon the discharge of duties, shall take and subscribe to the oath of office as provided in section 1 of article XI of the state constitution of 1963. An assistant shall perform only the duties assigned by the clerk. A person must not be appointed as an assistant to accept delivery of absent voter ballots who is a candidate or a member of the immediate family of a candidate whose name appears on the ballot at that election.” MCL 168.764b(3).
- “The clerk shall maintain a list open to the public that contains the names and addresses of all authorized assistants appointed under this section who are available to collect absent voter ballots on or before election day in that city or township.” MCL 168.764b(3).
Any voter who needs assistance in returning their absentee ballot on Election Day should contact the clerk’s office as soon as possible rather than taking a chance on an unauthorized person handling the ballot.
WHAT HAPPENS TO AN ABSENTEE BALLOT THAT IS IMPROPERLY RETURNED?
According to MCL 168.764b(7), “[a]n absent voter ballot received by the clerk before the close of the polls on election day must not be invalidated solely because the delivery to the clerk was not in compliance with section 764a or this section, however the ballot must be considered challenged and must be marked and processed as provided in [MCL 168.745].”
MCL 168.745 provides “[w]henever at any election the ballot of any person who has been challenged as an unqualified voter and who has taken the oath provided by law in such case to be taken shall be received by the inspectors of election, said inspectors shall cause to be plainly endorsed on said ballot, with pencil, before depositing the same in the ballot box, the number corresponding to the number placed after such voter’s name on the poll lists without opening the same: Provided, That in case a ballot shall be so folded, defaced, printed or prepared that such number cannot be legibly and permanently written on the back thereof, said inspectors shall refuse to accept such ballot.”
In other words, an unauthorized person returning your ballot will cause it to be challenged and increases the chances that the vote will not be counted upon further examination.
BALLOT HARVESTING IS A SERIOUS CRIMINAL OFFENSE BUT OUR CRIMINAL DEFENSE LAWYERS CAN HELP DEFEND YOU
In light of the allegations of fraudulent activity during the 2020 election cycle, there will be heightened supervision surrounding the return of absentee ballots in subsequent elections. This also means that unauthorized persons returning absentee ballots are more likely to be identified and prosecuted. If you are charged with ballot harvesting, you need an aggressive criminal defense lawyer in your corner to protect your rights. With skilled legal counsel pushing back against the prosecutor, you may learn that you are actually considered an authorized person under Michigan law to handle ballots and defeat the charges. Furthermore, there may be insufficient evidence against you that a crime was committed because of unreliable eyewitness testimony or just plain conjecture. Remember, the prosecutor must prove guilt beyond a reasonable doubt and our law firm will ensure that they are held to that constitutional standard.
If you or a loved one is charged with any crime and needs legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.