LANSING, Mich. – The Michigan appeals court denied a request to require the counting of absentee ballots received after the time polls close on Election Day, ruling that the battleground state's deadline remains intact despite voters' approval of a constitutional amendment that expanded mail-in voting.
The court, in a 2-1 decision released Wednesday, said it is up to lawmakers to change the deadline that has been in place for at least 91 years. The League of Women Voters of Michigan and three voters sued in May, seeking a declaration that absentee ballots be counted as long as they are mailed on or before Election Day and are received within six days of the election.
The plaintiffs, who will appeal to the state Supreme Court, pointed to voters' new constitutional rights to cast an absentee ballot without giving a reason 40 days before an election and to do it in person or by mail. They also noted fears of visiting polling places during the coronavirus pandemic.
“We follow the view that courts should typically defer to the Legislature in making policy decisions,” Judge David Sawyer wrote, adding that organizers of the ballot drive did not include a deadline in the initiative.
Judge Michael Riordan agreed with the ruling, while Judge Elizabeth Gleicher dissented.
“This case should be easy,” she said. “Because voters have a right to vote by mail if they mail their ballots to the clerk during the 40 days before an election, they have right to have their votes counted when those votes arrive in the clerk's office. This interpretation squares with the historical and legal meaning of voting. It corresponds with the voters' intent."
The Republican-controlled Legislature appears unlikely to revise the deadline.
The judges unanimously rejected a request to compel Secretary of State Jocelyn Benson to direct local clerks to provide paid postage on return envelopes.
The suit said inherent variations in mail delivery schedules could result in one person having the ballot counted and another not, even if they send them back on the same day. It also said the deadline especially burdens undecided and late-deciding voters and said at least 11 states count ballots sent by Election Day.
About 1.75% of ballots were not counted in the recent May local elections because they came in too late.
Sharon Dolente, voting rights strategist for the American Civil Liberties Union of Michigan — which assisted in suing the state — said the deadline "could lead to tens of thousands of voters being disenfranchised this year. We must ensure voters have the full timeline to submit their ballots from home by mail and give Michigan clerks and staff more time to process ballots.”
Donald Trump won Michigan by slightly more than 10,700 votes in 2016.
A similar suit — funded by Priorities USA, a powerful super PAC in Democratic politics — is pending in the state Court of Claims. Arguments were heard last week.
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