Mich. Alliance for Retired Americans v. Sec'y of State & Attorney Gen.

Decision Date16 October 2020
Docket NumberNo. 354993,354993
Citation334 Mich.App. 238,964 N.W.2d 816
Parties MICHIGAN ALLIANCE FOR RETIRED AMERICANS, Detroit/Downriver Chapter of the A. Philip Randolph Institute, Charles Robinson, Gerard McMurran, and Jim Pedersen, Plaintiffs-Appellees, v. SECRETARY OF STATE and Attorney General, Defendants, and Senate and House of Representatives, Intervening Defendants-Appellants, and Republic National Committee and Michigan Republican Party, Proposed Intervening Defendants.
CourtCourt of Appeal of Michigan — District of US

Perkins Coie LLP (by Marc E. Elias, Uzoma N. Nkwonta, Courtney A. Elgart, Jyoti Jasrasaria, and Reina Almon-Griffin) and Salvatore Prescott Porter & Porter, Northville (by Sarah S. Prescott ) for the Michigan Alliance for Retired Americans, Detroit/Downriver Chapter of the A. Philip Randolph Institute, Charles Robinson, Gerard McMurran, and Jim Pedersen.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Secretary of State and the Attorney General.

Bush Seyferth PLLC (by Patrick G. Seyferth, Troy, Michael K. Steinberger, Detroit, and Frankie Dame ) for the Michigan Senate and the Michigan House of Representatives.

Butzel Long, PC (by Kurtis T. Wilder, Detroit, Joseph E. Richotte, Bloomfield Hills, and Steven R. Eatherly, Detroit) for Amici Curiae the Michigan Republican Party and the Republican National Committee.

Before: Cameron, P.J., and Boonstra, and Gadola, JJ.

Cameron, P.J. Intervening defendants, the Senate and the House of Representatives (collectively, the Legislature), appeal by right a September 30, 2020 opinion and order of the Court of Claims that granted declaratory and injunctive relief in favor of plaintiffs with respect to the receipt deadline for absentee ballots and ballot-handling restrictions that limit who may lawfully possess another voter's ballot. For the reasons stated in this opinion, we reverse.


In June 2020, plaintiffs filed a complaint against defendant Secretary of State (the Secretary) and defendant Attorney General, seeking declaratory and injunctive relief related to the handling and counting of absent-voter ballots for the 2020 general election.1 Plaintiffs later filed an amended complaint, asserting facial and as-applied challenges to the constitutionality of three laws: (1) a deadline requiring that ballots submitted by absent voters must be received by election officials before polls close at 8:00 p.m. on election day in order to be counted; (2) a ballot-handling provision that restricts who, other than the voter, may possess, solicit, or deliver an absent voter's ballot; and (3) a requirement that voters who choose to submit their ballot by mail must first affix the necessary postage to their envelope to ensure delivery. In relevant part, plaintiffs alleged that these laws, in combination with the anticipated delay in the delivery of mail due to the COVID-19 pandemic, impose unconstitutional burdens on plaintiffs’ right to vote absentee in violation of Const. 1963, art. 1, § 2. Plaintiffs urged the Court of Claims to declare these laws unconstitutional and to suspend the enforcement of these election laws for the 2020 general election. Plaintiffs further asked the court to order that all absent-voter ballots postmarked before election day and received within 14 days of election day must be counted, to suspend the ballot-handling restrictions, and to require that Michigan provide prepaid postage to all voters who requested an absentee ballot.

Plaintiffs later requested that the Court of Claims issue a preliminary injunction, and the Court of Claims did so in part. Thereafter, plaintiffs and defendants filed competing motions for summary disposition. Ultimately, the Court of Claims granted partial relief to plaintiffs, concluding that plaintiffs had established two as-applied constitutional violations of plaintiffs’ right to vote absentee in the 2020 general election. The Court of Claims issued an order enjoining the operation of two election laws: the deadline for mail-in absent-voter ballots and the restriction limiting who can lawfully possess, solicit, and deliver another person's ballots. The Court of Claims ordered that mail-in ballots received after the polls closed on election night would now be eligible to be counted up to 14 days later, provided that the "ballot is postmarked before election day" and received by the clerk within 14 days of the election.2 The Court of Claims also suspended the ballot-handling restrictions regarding third parties possessing and delivering absentee ballots as long as the third party's conduct occurs from 5:01 p.m. on the Friday before the 2020 general election until polls close, so long as the absent voter gives his or her approval. The Court of Claims rejected plaintiffs’ final claim that the state was constitutionally required to provide prepaid postage for absent voters to use after completing their ballots and granted summary disposition in favor of defendants with respect to this claim only.

After defendants elected not to appeal, the Legislature, which had appeared as amicus in the Court of Claims proceedings, successfully intervened and filed the instant appeal. The Republican National Committee and the Michigan Republican Party appear on appeal as amici.3


Michigan law formerly required voters to designate one of six reasons to support a request to vote absentee. In November 2018, Michigan voters approved Proposal 3, which bestowed a constitutional right to "no-reason" absentee voting on all Michigan voters. Const. 1963, art. 2, § 4 (1)(g) now provides that Michigan voters shall have the right "to vote an absent voter ballot without giving a reason ...." The Legislature then enacted 2018 PA 603, which amended the Michigan Election Law accordingly.

Under the Michigan Election Law, MCL 168.1 et seq. , registered voters may apply for an absentee ballot by completing an application to receive an absentee ballot. The application from an already-registered voter must be made before "4 p.m. on the day before the election." MCL 168.761(3). An unregistered voter, however, may apply for an absentee ballot as late as "before 8 p.m. on election day" provided that he or she does so in person at the clerk's office. MCL 168.761(3). Notably, if a voter applies for an absentee ballot after 5:00 p.m. on the Friday before an election, "[t]he clerk of a city or township shall not send by first-class mail an absent voter ballot ...." MCL 168.759(2). The Secretary has issued instructions to clerks to transmit a ballot to a voter by mail only when adequate time exists for the voter to receive the ballot by mail, vote, and return the ballot before 8:00 p.m. on election day.

By law, an absent-voter ballot contains the following instructions to the voter: (1) read the voting instructions; (2) after voting, place the ballot in the secrecy sleeve or fold it to conceal the votes; (3) place the ballot in the return envelope and seal it; (4) sign and date the envelope and, if assistance in voting was required, mark that on the envelope; and (5) use one of four methods to deliver the return envelope to the clerk. MCL 168.764a.

Step Five of the instructions provides four methods of delivering completed absent-voter ballots to the clerk. First, voters may deposit ballots in "the United States mail or with another public postal service, express mail service, parcel post service, or common carrier." MCL 168.764a, Step 5(a). Voters who choose to use the United States mail or a delivery service must "[p]lace the necessary postage upon the return envelope ...." MCL 168.764a, Step 5(a). Second, a voter may deliver the completed absentee ballot in person. MCL 168.764a, Step 5(b). Third, a voter may mail or deliver his or her ballot through "a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or an individual residing in the voter's household ...." MCL 168.764a, Step 5(c). But a person who is not a member of a voter's immediate family or who does not reside in the voter's household is prohibited from possessing another person's ballot; indeed, to do so subjects the person to prosecution for a five-year felony. MCL 168.764a ; MCL 168.761 ; MCL 168.932(f) ; MCL 168.935. The fourth and final method is that a voter who is unable to return his or her absent-voter ballot by any of the other authorized methods may "request by telephone that the clerk who issued the ballot provide assistance in returning the ballot." MCL 168.764a, Step 5(d). When the proper request is made before "5 p.m. on the Friday immediately preceding the election," the clerk's office is required to pick up and deliver the absent-voter ballot.4 MCL 168.764a, Step 5(d); see also MCL 168.764b(4)(c). When the request occurs after 5:00 p.m. on the Friday immediately preceding the election, the clerk may—but is not duty bound—to pick up and deliver the absent-voter ballot.5

Notably, if an absent voter's ballot is returned to the clerk's office in an unauthorized manner, the ballot will not be "invalidated solely because the delivery to the clerk was not in compliance" with the statutes. MCL 168.764b(7). Rather, the ballot will be processed as a challenged ballot. MCL 168.764b(7). Completed ballots must be received by the clerk "before the close of the polls on election day."6 MCL 168.764a, Step 6. Furthermore, MCL 168.759b provides, in relevant part, that "[t]o be valid, ballots must be returned to the clerk in time to be delivered to the polls prior to 8 p.m. on election day." Ballots not received by 8:00 p.m. on election day are not counted. MCL 168.764a, Step 6 ("An absent voter ballot received by the clerk or assistant of the clerk after the close of the polls on election day will not be counted.").

III. AN...

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