COMMENTARY: The votes are in, despite a flurry of legal challenges

By Marie E. Matyjaszek

On October 16, the Michigan Court of Appeals ruled that all Michigan absentee ballots must arrive by election day, November 3, to be counted. 

Anticipating issues due to the COVID-19 pandemic, a group of citizens sued the secretary of state and attorney general to challenge the constitutionality of laws which require absentee ballots be received before the polls close on election day, the requirement for postage to be placed on the ballot in order for it to be successfully mailed, and who exactly can turn in the ballot for the voter.  Specifically, the plaintiffs sought an exception to the enforcement of these three laws for the 2020 election.

They were mostly successful in the Court of Claims, which ruled that absentee ballots could be counted up to 14 days after the polls closed if the ballot was postmarked prior to November 3. A non-relative, non-household resident third party could deliver another voter’s ballot if they had permission to do so, and it was between “5:01 p.m. on the Friday before the 2020 general election until polls close.”  Not surprisingly, the plaintiffs lost the postage argument.

An interesting twist happened when the State Senate and House of Representatives successfully intervened in the lawsuit and appealed the Court of Claims’ ruling, with the appellate court noting that the Legislature had the right to defend its own statutes. In short, the appellate court basically determined that the Court of Claims used the wrong analysis when making its ruling.

The Court of Appeals leaned on a previously decided case which found the 8:00 p.m. ballot deadline to be constitutional under a “facial” challenge (looking only at the plain language of the law). It held that the ballot delivery person law survived the plaintiff’s facial challenge as well.

The court found that Michigan had made drastic changes to allow absentee voters to deliver their ballot without the use of mail, and complete the entire voting process, including registration, at one location. Ultimately, it held that the restrictions imposed failed to place “an unconstitutional burden on the right to vote.”

To be thorough, the court went through a brief analysis of whether the plaintiffs would be successful under the “as-applied challenge” analysis of the laws, determining that their claims would still fail.

Due to the pandemic, many voters cast absentee ballots this year, in Michigan and throughout the country.  Depending on the various rules of when counting can begin, Americans may not know the official results for days after November 3. Regardless of the outcome, I am still proud that I live in a country where I have the right to vote, whether in person or by the absentee option.
————————
Marie E. Matyjaszek is an attorney referee at the Washtenaw County Friend of the Court; however, the views expressed in this column are her own. She can be reached by e-mailing her at matyjasz@hotmail.com.