A Michigan judge has ruled that absentee ballots that arrive late in the mail, if postmarked by the day before the November election, must be counted.
Court of Claims Judge Cynthia Stephens issued the ruling Friday, Sept. 18, allowing ballots delivered up to two weeks after the election to be tallied.
She said the COVID-19 pandemic and documented mail delays make current the deadline of 8 p.m. on Election Day an “impermissible restriction” for absentee ballots.
“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 ruled. "Notably, the United States Office of the Inspector General released a report that specifically identified Michigan as a state with statutes placing voters at a ‘high risk’ of disenfranchisement.”
The ruling applies only to the 2020 general election.
Stephens noted that a problem was clearly apparent in the August primary, when 6,400 absentee ballots were disqualified because they came in after the statutory deadline.
The ruling allows all absentee ballots to be counted if they are postmarked by Nov. 2 for this year’s general election and received by the deadline for certifying results, 14 days after Election Day.
Stephens’ ruling emerged from a lawsuit filed by the Michigan Alliance for Retired Americans against Secretary of State Jocelyn Benson.
As part of her opinion, she also ruled that absentee voters can get help from any person they choose in returning their ballot in the final days before the Nov. 3 election.
Current election law requires an absentee ballot to be returned by the voter, an immediate family member or someone residing in the voter’s household. The voter can also get help from a local government clerk, but that option expires at 5 p.m. on the Friday prior to the Tuesday election.
Stephens ruled that, given the pandemic and that Michigan is not in “ordinary times,” a voter who receives an absentee ballot too close to the election may not be able to get help dropping it off.
One example, she said, might be those living in assisted living facilities who have limited access to outside visitors. Gov. Gretchen Whitmer recently issued an order to allow for outdoor visits at nursing homes, with precautions, but nursing homes are not required to follow it.
Her ruling allows for a voter to choose anyone they want to return their ballot, but only if it’s between 5 p.m. Friday before election day and 8 p.m. on election day.
The Michigan Alliance for Retired Americans had asked Stephens to also eliminate the requirement that absentee voters supply their own return postage, but she denied the request.
She ruled the postage burden is slight and not likely prevent someone from voting.
Related: 2.1 million voters have requested absentee ballots, says Michigan Secretary of State
Benson issued a statement that supported the judge’s opinion.
“No eligible voter should be disenfranchised through no fault of their own for exercising their right to vote by mail," she said in a written statement. “The court’s decision recognizes many of the unique challenges that the pandemic has created for all citizens and will reduce the potential for voter disenfranchisement due to mail delays.
"However, we still want voters to make a plan to vote now, and not wait until the last minute if they want to vote by mail. That’s why we will continue to strongly encourage voters to request and return their absentee ballots as soon as possible.”
COVID-19 PREVENTION TIPS:
In addition to washing hands regularly and not touching your face, officials recommend practicing social distancing, assuming anyone may be carrying the virus.
Health officials say you should be staying at least 6 feet away from others and working from home, if possible.
Use disinfecting wipes or disinfecting spray cleaners on frequently-touched surfaces in your home (door handles, faucets, countertops) and carry hand sanitizer with you when you go into places like stores.
Michigan Gov. Gretchen Whitmer has also issued executive orders requiring people to wear face coverings over their mouth and nosewhile in public indoor and crowded outdoor spaces. See an explanation of what that means here.
Additional information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
For more data on COVID-19 in Michigan, visit https://www.mlive.com/coronavirus/data/.
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