Voting activists get twin victories in Michigan with transport, ballot cases

Two judges granted victories to voting-rights advocates in Michigan, allowing absentee ballots postmarked before the general election to be counted and blocking a law that barred groups from hiring drivers to take voters to the polls.

The separate rulings, which came Thursday and Friday in closely watched lawsuits fought by Republicans, continue a trend of expanded access to the polls, particularly amid the COVID-19 pandemic and concerns over potential mail delays.

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On Friday morning, Michigan Court of Claims Judge Cynthia Stephens, appointed by Democratic former Gov. Jennifer Granholm, issued a preliminary injunction to allow ballots to be counted if they’re postmarked on Nov. 2 or before and received within two weeks after the election due to the effects of the coronavirus pandemic and U.S. Postal Service delays, which she said are no longer rare.  

Under existing Michigan law, absentee ballots received after polls close on Election Day can’t be counted. 

“The statutory ballot receipt deadline is, as applied, an impermissible restriction on the self-executing right to vote by absent voter ballot,” Stephens wrote. 

“Under the present circumstances, a voter’s right to cast an absent voter ballot by mail in the 40 days before the November 2020 general election is severely restricted, and at times outright eliminated.”

The ruling is limited to the 2020 election — an election with voting options “riddled… with uncertainty after uncertainty,” Stephens wrote — and does not apply to future elections.

The state will not appeal the ruling, according to Ryan Jarvi, a spokesperson for Attorney General Dana Nessel, a Democrat. 

“With the November election quickly approaching, voters and local clerks need certainty – and these decisions provide that,” Jarvi said in a statement. “Therefore, we do not intend to appeal, but rather will use this time to educate and inform voters of their rights.

Michigan Secretary of State Jocelyn Benson, the named defendant in the case, had urged the state Legislature to allow clerks to count postmarked absentee ballots up to one or two days beyond Election Day. 

Benson said Friday’s ruling “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.”

Michigan Republican Party Chairman Laura Cox blasted the Democratic officials’ decision not to appeal the ruling on behalf of the state, arguing Benson and Nessel should not “pick and choose” which laws they defend.

“Michiganders elected AG Nessel and Secretary Benson to enforce the law, not stand back while new laws are made to benefit a partisan agenda,” Cox said in a statement. “This is an Executive Branch gone amok. Who is representing the people of this state?”

The Michigan GOP and Republican National Committee were among outside groups that sought to join the case as intervening defendants but were denied. Instead, they filed amicus briefs arguing that plaintiffs in the case sought to “dismantle the state’s election procedures... to promote and preserve order and integrity” in the process.

In her ruling, Stephens said she was unswayed by GOP concerns that mail-in ballots could harm the integrity of the election, writing, “incidences of voter fraud and absentee ballot fraud are minimal and that the fears of the same are largely exaggerated.” 

Stephens also temporarily barred a law that limits who can help a voter cast an absentee ballot. Currently, the only people who can return an absentee ballot to a clerk’s office are the voter, a mail carrier acting in their professional capacity, a clerk, a housemate or an immediate family member. 

Usually, this law “likely poses no constitutional issue,” Stephens wrote. “These are not, however, ordinary times.” Reports of late ballot deliveries and the restrictions of potential quarantines may make it difficult for people to rely on family members or housemates to deliver their ballots, which merits the temporary change, she said. 

The lawsuit was brought against the state in early June by the Michigan Alliance for Retired Americans, the Detroit chapter of the A. Philip Randolph Institute (DAPRI) and three individual plaintiffs.

Republicans don’t have standing to appeal but could consider other “extraordinary” steps to challenge the ruling, said Steven Liedel, a government policy attorney who served as legal counsel to former Gov. Jennifer Granholm.

For instance, the state or national party could take action in federal court, where a favorable ruling for them would trump the state decision. Or the Michigan Legislature could ask the state Supreme Court for an advisory opinion.

“I expect this isn’t going to be the last word, but it has the potential to be,” Liedel told Bridge Michigan. “We’re getting pretty close to the election at this point.

Judge bars law prohibiting rides to the polls

In another significant ruling issued Thursday evening, a federal judge blocked a Michigan law that bans groups and individuals from paying to transport a voter to the polls unless they’re physically incapable of walking. 

The transportation ban has existed in some form since 1895 in Michigan. U.S. District Judge Stephanie Dawkins Davis, who was appointed by President Donald Trump, decided that conflicts with federal law that gives groups and individuals the right to fund transportation to the polls.

Priorities USA, the Democratic super PAC that sued the state over voting rules last November, was joined in January by two additional groups, Rise and DAPRI, nonprofits that work to mobilize college student voters. The groups argued the law gets in the way of their ability to encourage voting, especially among people who traditionally have a tougher time getting to the polls, such as students and hourly workers. 

“This decision by the Michigan District Court is a victory for all Michigan voters and another defeat for the baseless laws that make exercising the right to vote more difficult,” Guy Cecil, Chairman of Priorities USA, said in a statement released Thursday evening. 

“We are encouraged that the District Court in Michigan recognized the absurdity of the Voter Transportation Law — giving voters who do not have easy access to personal transportation more opportunities to get to the polls and have their voices heard on Election Day.”

Rideshare company Uber said in 2018 that Michigan was the only state in which it couldn't offer discounted rides to the polls because of the law, which levies a misdemeanor charge, 90 days in prison or a $500 fine for those who violate it.

The Michigan Republican Party, the RNC, and the state Legislature also intervened in this case, arguing that the law protects against voter fraud and abuse, and should qualify under a federal carve-out for such state laws.

The groups also challenged the state law about absentee ballot handling, and Davis ruled contrary to Stephens in state court, denying their request for injunction. 

Davis determined that the threat of fraud related to absentee voting is “not merely hypothetical” and that there are no other state laws primarily designed to “reduce fraud or abuse in the application process on the front end, as opposed to simply punishing it after it occurs,” which she argued the absentee ballot law is.

However, Stephens’ decision — the state ruling that temporarily does allow other people and groups to help voters transfer their ballots to clerks through November’s election — would stand in this case, said Liedel, the government policy attorney. 

The state court’s decision “is a definitive determination as a matter of state law,” he said, later adding, “If you have a right under state law, there’s no need for a federal right to be recognized.”