Republicans sue to block Michigan ruling on late absentee ballots, who can return ballots

State and national Republican leaders want a Michigan judge to overturn a recent ruling that allows voters to choose anyone to deliver their absentee ballots and requires many absentee ballots received after Election Day to count. 

The Republican National Committee and the Michigan Republican Party are suing Secretary of State Jocelyn Benson and Attorney General Dana Nessel in an effort to nix a recent court decision. 

The legal filing is the latest machination that may affect absentee voting this year, a process more than 3 million Michiganders are expected to use to cast their ballots this fall. 

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The GOP filed the lawsuit to prevent what the party deems "ballot harvesting" and to invalidate ballots received after Election Day. The lawsuit says the effort is an attempt to squash potential voter fraud, but Democrats and some election experts say the effort may work to disenfranchise eligible voters. 

State law says only certain people, including family, friends and mail carriers, may transmit someone's absentee ballot to the appropriate clerk. It also states any ballot received after 8 p.m. on Election Day, even if it is mailed before Election Day, is invalid. 

However, Court of Claims Judge Cynthia Stephens ruled earlier this month that these laws were unconstitutional, citing the coronavirus pandemic as an extraordinary factor.

"The unrefuted affidavits and documents compel the conclusion that, in light of delays attributable to the COVID-19 pandemic, mail delivery has become significantly compromised, and the risk for disenfranchisement when a voter returns an absent voter ballot by mail is very real," Stephens said in her ruling.

Her ruling allows any ballot postmarked by Nov. 2 to be valid, as long as they arrived before Michigan election results are certified. She also determined voters could choose anyone to return their ballots for them. 

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Republicans were not allowed to intervene in that separate lawsuit — filed against Nessel and Benson by the Michigan Alliance for Retired Americans — although they have another motion to intervene pending before Stephens. Stephens is also assigned their new lawsuit; her previous ruling and the fact she presides over the new lawsuit do not bode well for the GOP's chances of success. 

Nessel and Benson have already announced they would not appeal the original Stephens decision, essentially allowing her order to serve as law for this election. 

"We are reviewing the complaint and will discuss it with the Secretary of State’s office to determine an appropriate response," Nessel spokesman Ryan Jarvi said in a Friday email about the GOP legal filing. 

Benson and the Michigan Republican Party did not immediately respond to a request for comment. 

Republicans say allowing anyone to return a ballot amounts to "ballot harvesting," a term with considerable negative cache and a process they argue opens the door to fraud. In theory, opponents of the idea argue a stranger is more likely to tamper with a ballot than a friend or relative and "harvest" ballots that favor the stranger's favored candidate. 

There is very little evidence of any voter fraud, through mail-in voting or absentee voting. But in their filing, Republicans argue that state law is clear, unambiguous and important. 

"The harvesting ban is in harmony with the Legislature's constitutional obligations to protect the right to vote absentee from fraud and corruption and preserve the purity of elections, represents a common sense restriction in limiting the individuals permitted to deliver someone's (absentee) ballot, and provides reasonable safeguards from potential abuses of voters exercising their right to vote absentee," the lawsuit states. 

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The GOP argues ballot deadlines are best left up to the legislature to decide, regardless of the impact of coronavirus, which causes the disease COVID-19. The lawsuit also downplays any postal problems, calling them "alleged delayed deliveries in the USPS" and says voting in person is not a safety hazard. 

Millions in Michigan are expected to use absentee ballots this year in order to avoid contracting the virus at a crowded polling place. A 2018 voter-backed initiative that allows voters to vote absentee without a reason is also fueling the unprecedented demand for the ballots. 

In August, more than 6,400 absentee ballots were rejected because clerks received them after polls closed in the primary election. They were among more than 10,000 absentee ballots invalidated in that election. In a state where the 2016 presidential contest was decided by 10,704 votes, these votes could have a real impact on the ultimate outcome. 

Election Day is Nov. 3, but voters may request an absentee ballot now, or vote in person using an absentee ballot at their clerk's office. 

Contact Dave Boucher at dboucher@freepress.com or 313-938-4591. Follow him on Twitter @Dave_Boucher1.