Michigan appeals court: SOS Benson’s mass mailing of absent ballot applications OK

Michigan voters received unsolicited absentee ballot applications beginning in May amid pandemic

Governor Gretchen Whitmer and Secretary of State Jocelyn Benson called on Michigan citizens and the state legislature to take action ahead of the Nov. 3 general election during a news conference in Lansing, Mich. on Sept. 16, 2020. Whitmer and Benson urged voters to request and cast their absentee ballots as soon as possible, and state legislators to pass laws to prevent delayed election results and voter disenfranchisement. (Michigan Executive Office of the Governor)

LANSING, Mich. – Michigan Secretary of State Jocelyn Benson’s mass mailing of unsolicited absentee ballot applications to millions of 2020 voters was deemed legal by Michigan’s appeals court, which ruled Wednesday she had “inherent” authority to act under a 2018 constitutional amendment expanding voting rights.

The court upheld a lower judge's ruling in a 2-1 decision.

“Defendant’s conduct did not interfere with Michigan qualified registered voters’ rights. Ultimately, it is up to each voter to decide whether to vote in person or apply for an absentee ballot,” Judges James Redford and Jonathan Tukel wrote.

Benson, a Democrat, began sending the applications in May to all voters in the battleground state who were not already on permanent absentee ballot lists for the August primary and November general elections, which Benson said was a way to encourage safe voting during the coronavirus (COVID-19) pandemic.

“For us this is about ensuring, now that we have two statewide elections this year, that every Michigan citizen knows that they have a right to vote by mail; they can choose the right,” Benson said in May. “We want to make it safe and easy for them to do so, so they don’t have to feel that they have to leave their home.”

Lawsuits were filed against Benson by Yvonne Black and Nevin Cooper-Keel, Republican candidates for the state House who later lost in the primary, and Robert Davis, an activist and serial litigant.

In a dissent, Judge Patrick Peter said a law explicitly only gives local clerks the power to distribute absentee ballot applications, not the secretary of state.

When Benson announced the mass mailing, she was criticized by President Donald Trump, who wrongly stated that she was sending absentee ballots, not applications.

A record 2.5 million votes were cast in the August primary in Michigan, including a record 1.6 million absentee ballots that were submitted by mail, at a drop box or in a clerk’s office. The previous record for absent voter ballots cast in a Michigan election was 1.3 million in the 2016 Presidential Election.

Already, about 2.3 million absentee ballots have been requested for the fall election, which Benson said puts Michigan on track to receive more than 3 million that are completed. Of the 7.7 million registered voters in Michigan, about 5 million are expected to participate in the upcoming election, officials said in August.

At a virus-related news conference that included Benson and voting advocates on Wednesday, Michigan Gov. Gretchen Whitmer thanked the state Senate for passing legislation that would let certain clerks start processing a surge of absentee ballots the day before the election. She urged the House to follow suit.

Officials say the legislation is important to help Michigan clerks process ballots at a faster rate, especially as the state anticipates its highest voter turnout in history this November. With a record number of voters choosing to vote by mail in the presidential election, officials are concerned that November election results will be delayed by multiple days to fully and accurately process all absent voter ballots.

At the conference Wednesday, Benson laid out options to vote, including requesting and returning an absentee ballot by mail, voting in person before Election Day or going to the polls on Nov. 3. She again pressed the Republican-led Legislature to change the law so ballots received after Election Day are counted. The bill appears unlikely to go anywhere despite concerns about postal delays.

“We're entering the final stretch of what may be one of the most contentious, highly polarized election cycles that any of us have ever seen. We can and we will succeed to make sure our voices, the voices of all of our citizens, are heard and that every vote is counted,” Benson said.

About 10,000 absent voter ballots were rejected in Michigan’s Primary Election in August. More than 8,600 of those rejections were due to signature verification issues or late arrival.

Click here to learn more about voting by mail in Michigan for the November election.

Be prepared: 2020 General Election in Michigan: Key dates, deadlines to know

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