An earlier decision that allowed any ballot postmarked before election day is being challenged by local, state and national Republicans.
LANSING, MI—Mail in your ballots sooner than later, Michiganders.
As expected, Republicans at both the state and national level have filed a lawsuit to block a ruling from late September by Michigan Court of Claims Judge Cynthia Stephens which ensured that any ballot postmarked by Nov. 2—the day before the election—and received within two weeks of the election must be counted.
The Michigan Republican Party and the Republican National Committee filed suit attempting to restore the previous requirement that ballots be received by city clerks before polls close on Election Day or be rejected without exception. Their case, too, will be heard by Judge Stephens.
While that means it isn’t likely the outcome of their case will be different, it will allow Republicans to appeal the decision with the goal of getting the case before the Republican-controlled Michigan Supreme Court, counting on that court to side with them and return ballot deadlines to the pre-pandemic standard.
Stephens made her arguments against that standard clear.
“The evidence in this case stands uncontroverted and establishes that the mail system is currently fraught with delays and uncertainty in light of the COVID-19 pandemic,” Stephens wrote in her ruling. “Affidavits and testimony detailed that despite voters requesting ballots weeks in advance of the primary, their actual ballot arrived as late as Election Day.”
She also cited an instance where a Wyandotte voter’s ballot was somehow routed out of state before eventually making it to her clerk—late.
But Republicans argue that there is no due process right to having a vote counted, because voting is not a “liberty” in a constitutional sense of the term. Therefore, they argue, the court was wrong to be overly concerned with ballots that arrive late being discounted.
“There’s no deprivation of any liberty interest relating to the general election, and for that reason alone, the ballot receipt deadline survives a due process challenge,” the case argues.
Moreover, they allege that emergency situations do not justify dramatic changes to election procedure, both citing Hurricane Katrina in New Orleans and arguing that allowing any ballot postmarked prior to the election constitutes a dramatic change.
In a separate suit, Republican former secretaries of state argue the 14-day extension jeopardizes the ability to hold a recount before Michigan is forced to select its delegates to the Electoral College, which acts as a hard deadline in the national post-election process on Dec. 14. Six days before that is the “safe harbor” deadline by which disputes must be filed.
Ruth Johnson, Terri Lynn Land, and Marian Sheridan expressed concerns in their lawsuit that the 21 days still available before those deadlines would not be sufficient to carry out a recount.
“There is a substantial risk that plaintiffs’ votes will be completely meaningless, if either Michigan loses its representation in the Electoral College or its asserted results do not qualify for the safe harbor,” the suit explains.
None of these developments are unexpected. Republicans announced their desire to step in as defendants in the previous version of the lawsuit heard by Stephens, but were ultimately rejected.
Lavora Barnes, chair of the Michigan Democratic Party, issued a statement in response to these lawsuits.
“We should be asking the Republicans why they don’t want every single vote in Michigan to count,” Barnes said. “Republicans are pulling out all the tricks to disenfranchise voters, while the Democrats are focused on ensuring that every eligible voter in Michigan can cast a ballot and be guaranteed it will be counted.”