Court of Appeals Clarifies Certain Rules for Absentee Ballots

At the November 2018 election, the Michigan voters approved Proposal 3, which had the effect of creating a constitutional right to vote by absentee ballot, without providing a reason. As a result of the broad language appearing in this constitutional amendment, there has been a degree confusion about how to implement some of the finer details of no-reason absentee voting. Some of these issues were resolved by the Michigan Court of Appeals in the recent case of League of Women Voters of Michigan v Secretary of State, which was published on July 14, 2020.

In that case, the Court decided two principal matters:

• It upheld the validity of MCL 168.764a, which requires that an absentee ballot be received by the clerk by 8:00 p.m. on election day, in order to be counted. The Court rejected the argument advanced by the plaintiffs, that ballots postmarked by election day (but not received by 8:00 on election day) are required to be counted.
• It held that it is constitutionally permissible to require absentee voters to pay the return postage to mail an absentee ballot back to the clerk. In other words, clerks are not required to provide pre-paid return postage with absentee ballots.

These are the rules in place for now, under the Court of Appeals’ decision. However, there are a number of proposed laws currently undergoing consideration by our Legislature, which could potentially modify these rules. Further, it is possible that the Supreme Court could review and modify the Court of Appeals’ decision before the upcoming 2020 elections. Accordingly, our readers should stay tuned for possible future developments. We will continue to keep our municipal clients updated as these issues evolve.