Michigan Judge Rules Late-Arriving Absentee Ballots Must Be Counted

Voters wait to vote inside a fire department in 2018, in Armada Township, Mich. (Todd McInturf /Detroit News via AP)

LANSING, Mich. (CN) — Absentee ballots for the 2020 general election in the state of Michigan postmarked by Nov. 2 must be counted, even if they arrive late, a Court of Claims judge ruled Friday.

The ruling was made in response to an expected surge in the number of absentee voters because of the Covid-19 pandemic, but also because of significant delays in mail processing facilities operated by the United States Postal Service.

More than 2.3 million Michigan voters have already requested absentee ballots, and the ruling could cause delays in the outcomes of various races across the state and even the presidential election.

The Michigan Alliance for Retired Americans, among others, filed suit in the Michigan Court of Claims to enjoin the state from enforcing a provision of the state’s election law regarding ballot receipt deadlines.

Prior to the ruling by Judge Cynthia Stephens, Michigan election law required that absentee ballots would only be counted if they were received by a county clerk’s office before polls close at 8 p.m. on Election Day.

“The unrefuted affidavits and documents compel the conclusion 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,” Stephens said.

The judge added that the plaintiffs produced evidence of “significant mail delays since the onset of the pandemic,” including in Detroit. 

“Furthermore, plaintiff’s documentary evidence revealed that, due to ‘major operational changes’ with the Postal Service — such as the elimination of overtime hours — mail delivery could be slowed down even further, particularly with what figures to be an event that increases strain on the system,” Stephens said. 

Stephens also cited affidavits from the plaintiffs that claimed thousands of absentee ballots in the August primary were not counted because of delays in mailing.

In granting the plaintiffs’ motion for preliminary injunctive relief, Stephens pointed out that the state’s deadline on absentee ballots may not be unconstitutional in its entirety, but that the Covid-19 pandemic has created a set of circumstances that violates voters’ constitutional rights “as applied” in the 2020 election.

“Even for those voters who are fortunate enough to receive their absent voter ballots in advance of the election, mail delays and the Covid-19 pandemic stack the deck against successfully casting an absent voter ballot by mail in a timely manner,” Stephens said.

Dick Long, president of the Michigan Alliance for Retired Americans, praised Stephens’ decision in a statement.

“Seniors take voting seriously, and we can rest easier knowing that we have easy and convenient ways to cast our ballots without putting our health at risk,” Long said. “This ruling means that we can be confident that any mail delays will not keep our votes from being counted.”

Michigan Secretary of State Jocelyn Benson also responded to the ruling in a statement.

“No eligible voter should be disenfranchised through no fault of their own for exercising their right to vote by mail,” Benson said. “The court’s decision recognizes many of the unique challenges that the pandemic has created for all citizens and will reduce the potential for voter disenfranchisement due to mail delays.

“However we still want voters to make a plan to vote now, and not wait until the last minute if they want to vote by mail. That’s why we will continue to strongly encourage voters to request and return their absentee ballots as soon as possible.”

Stephens also granted a preliminary injunction to stay enforcement of the “voter assistance ban,” which previously limited who could return a voter’s absentee ballot to the polls.

The statute ordinarily requires that only a voter or a member of their immediate family or household could return an absentee ballot in person, but Stephens ruled the pandemic has made such a requirement unconstitutional.

“One can think of residents in an assisted living facility, the access to which has been extremely limited during the pandemic, who might fall into this category,” Stephens said. “Additionally, prospective absentee voters who simply wish to take their time in weighing which candidates to vote for run the risk of missing out on the clerk-supplied assistance.” 

Stephens dispelled concerns about voter fraud at the outset of her opinion and cited expert testimony that called incidents of fraud “rare,” while also pointing out that the May 2020 election — conducted almost entirely by mail — had no reports of fraud.

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