Michigan ballots postmarked by Nov. 2 must be counted in election, judge rules

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Mail-in absentee ballot materials at the Dallas County Elections Department on May 18, 2020, in Dallas. - Smiley N. Pool/Dallas Morning News/TNS

LANSING, Mich. — Ballots postmarked as late as the day before Election Day must be counted, even if they arrive after the polls close, a Michigan judge ruled Friday.

The ruling from Michigan Court of Claims Judge Cynthia Stephens has huge ramifications for Nov. 3, when 3 million or more absentee ballots are expected to be cast in Michigan, smashing previous records.

If the ruling stands, it should help ensure every Michigan ballot is counted, but also increase the likelihood that results might not be known on Election Day, or soon after. Under Stephens’ ruling, late-arriving mail-in ballots could still be counted until results must be certified, 14 days after the election. Currently, only ballots that arrive before the polls close on Election Day are counted.

The huge uptick in absentee voting is due to concerns about in-person voting during the coronavirus pandemic, combined with the no-reason absentee voting Michigan voters approved in a 2018 referendum.

Stephens made the ruling in a lawsuit brought by the Michigan Alliance for Retired Americans. She said her order applies only to the Nov. 3 election, citing the coronavirus pandemic and recent delays in the U.S. Postal Service.

The ruling, which Stephens issued in a 21-page order, is likely to face appeal efforts from Republicans who are interested parties in the case, but have not been recognized as intervening defendants, as they have requested.

The officers of the Michigan Alliance for Retired Americans are representatives of major unions such as the UAW, AFSCME, the Michigan Education Association, and the American Federation of Teachers, according to the group’s website.

Stephens also ruled that, for the Nov. 3 election, voters casting an absentee ballot can get help from anyone they want in returning their ballots to local clerks, but only from the Friday before Election Day to the close of polls. Normally, only certain people, such as immediate family members and a clerk or clerk’s assistant, are eligible to help someone by returning their absentee ballot for them.

But Stephens refused a request that voters not be required to supply their own postage when mailing their absentee ballots.

“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 in her ruling.

She said the group had presented evidence there have been significant mail delivery delays, especially in Detroit, since the pandemic began, and “many voters were in fact deprived of having their absent voter ballot tallied in the August primary.”

Stephens, who was appointed to the Michigan Court of Appeals in 2008 by former Democratic Gov. Jennifer Granholm, said she heard evidence about one case in which a ballot mailed to the clerk’s office in Wyandotte was routed out of state, to Illinois, before arriving late at its intended address.

That was just one of “the over 6,400 otherwise valid ballots that were rejected for having been received after the Election Day receipt deadline,” she said.

The named defendants in the case — Secretary of State Jocelyn Benson and Attorney General Dana Nessel — are likely to be the supportive of the ruling on counting late-arriving ballots. Benson is on record in support of legislation that would allow late-arriving ballots to be counted.

“With the November election quickly approaching, voters and local clerks need certainty — and these decisions provide that,” said Ryan Jarvi, a spokesman for Nessel. “Therefore, we do not intend to appeal, but rather will use this time to educate and inform voters of their rights.”

Benson said the ruling “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,” Benson said.

In court filings, Benson and Nessel said the question of counting late-arriving ballots is already before the Michigan Court of Appeals in a case brought by the Michigan League of Women Voters, and any ruling should await the resolution of that case. On the issue of transporting absentee ballots, they said “the need to limit who may possess another person’s AV ballot is obvious,” to ensure the integrity of the absentee voting process.

The Republican-controlled Michigan House and Senate, the Michigan Republican Party, and the Republican National Committee sought to intervene as defendants in the case. Stephens denied the motions to intervene, in a decision upheld by the Michigan Court of Appeals. They GOP entities were allowed to file briefs in opposition to the requested measures, as interested parties, but not as defendants. Their appeal options were not immediately clear.

In addition to mail delivery delays related to the pandemic, recent “major operational changes” at the U.S. Postal Service, such as reduced or eliminated overtime, mean “mail delivery could be slowed down even further,” she said.

Stephens said the risk of disenfranchisement is greatest for those who are immunocompromised, live alone, or do not have someone who can help them return an absentee ballot.

Though interested parties filed briefs expressing concern about election fraud, evidence in the case suggest “incidences of voter fraud and absentee ballot fraud are minimal and that the fears of the same are largely exaggerated,” Stephens wrote.

“Moreover, there is little evidence to suggest that fraud would increase with a larger pool of persons eligible to assist absentee voters.”

Richard Fiesta, executive director of the Alliance for Retired Americans, said the ruling is “especially critical for the 1.6 million Michigan voters who are over the age of 65 and whose health is most at risk during the COVID-19 pandemic.”

The progressive group Priorities USA, which has sued in federal court over what has been a seldom-enforced restriction on transporting voters to the polls, called the ruling by Stephens a major victory for Michigan voters, who in 2018 approved any-reason absentee voting, among other election changes that include an independent citizen redistricting commission.

By eliminating both the voter assistance ban and an arbitrary ballot receipt deadline, the court has made it clear that all Michiganders should be able to exercise their right to vote without restriction,” said Guy Cecil, chairman of Priorities USA.

On Thursday, U.S. District Judge Stephanie Dawkins Davis ruled unlawful — not just in the context of the coronavirus pandemic, but on its face — a state law that makes it a misdemeanor to hire drivers to take voters to polling places unless they physically cannot walk.

Davis, who was appointed by Republican President Donald Trump, ruled the state law is pre-empted by the Federal Election Campaign Act, which allows expenditures for transportation.

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