Why Michigan is waiting: State law bars early counting of absentee votes

Update: Joe Biden wins Michigan

We should have known this wait was coming. 

It’s the morning after Election Day, and Michiganders — and the whole nation — are awaiting a winner in Michigan, Wisconsin and Pennsylvania, all crucial swing states.  

In Michigan alone, the state’s biggest bloc of Democratic votes, Detroit, may not finish counting ballots until Wednesday night. By 7:30 a.m., President Donald Trump’s lead in Michigan had fallen to 12,000 votes as more precincts reported.

The race narrowed in the hours after Trump falsely claimed around 2:30 a.m. that he had practically already won Michigan and Pennsylvania. He said the election is being stolen from him and threatened to take the results to the Supreme Court.

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He argued all the results should have been available by midnight Tuesday, tweeting “We are up BIG, but they are trying to STEAL the Election. We will never let them do it.”

But election officials have warned for weeks that counting votes that quickly is not possible. 

That’s because Michigan absentee ballots can’t begin to be counted until 7 a.m. on Election Day by state law. The ballots take far longer to process than walk-in votes, and Michigan Secretary of State Jocelyn Benson and municipal clerks have pushed for months to try to change the rules.

Initial turnout numbers Tuesday night indicated that at least 3.3 million people voted absentee, doubling the previous record of 1.6 million set in the August primary. An additional 2 million to 2.5 million votes are expected from in-person voters. 

Combined, that’s at least 5.3 million voters, besting the 5 million set in the 2008 general election, Benson said.

Republican leaders control Michigan’s Legislature and have been reluctant to change laws on processing absentee ballots, raising concerns that doing so would create the possibility for fraud.

One Democratic lawmaker introduced legislation that would have allowed clerks to begin counting absentee ballots up to seven days before election day, which is allowed in at least four other states. Several states allow tabulation even earlier. 

Instead, lawmakers passed a compromise introduced by Benson’s predecessor, Ruth Johnson, who is now a Republican senator from Holly. Her bill allows for “pre-processing” ballots on the day before Election Day. 

Senate Majority Leader Mike Shirkey, R-Clarklake, declined to move the bill in February (before the pandemic hit Michigan), arguing it could set a “dangerous precedent” and eventually lead to early voting, which he opposed. 

It wasn’t until after the August primary, when a then-record of 1.6 million people voted absentee, that the Senate approved the bill with only two Republican lawmakers voting no. The bill passed the state House shortly afterward with bipartisan support. 

Johnson’s bill allows election officials in large cities 10 extra hours to take absentee ballots out of an outer envelope. The bill also allowed for absentee ballot counters to work in shifts on Election Day, which was aimed at cutting through fatigue for election workers who may face days of sequestered counting.

But under the new law, it still wasn’t until the next day that election officials could begin the lengthy process of taking those ballots out of the second envelope, removing the attached ID stub and smoothing out the ballot for tabulation — added steps that make counting absentee ballots take longer than those cast in person. Those are directly fed into tabulators by voters. 

Benson called the bill a “step in the right direction,” and many local clerks who spoke with Bridge throughout the year agreed. But many also lamented that it still didn’t provide enough lead time for the state’s absentee ballots to be counted as quickly as other states, which they said leaves room for foreign and domestic actors seeking to undermine the election to sow doubt about the integrity of the process.

As of Wednesday morning, those election officials were right that results aren’t close to ready. 

In Michigan, nearly 90 percent of the state has reported results by 7:30 a.m., but large municipalities like Detroit — which is home to enough people to swing the election — were still counting ballots. Detroit City Clerk Janice Winfrey said Tuesday evening the full results for the city will likely be counted by around 9 p.m. Wednesday night. 

That puts Michigan in the center of national scrutiny as results from other swing states like Florida and Ohio have already been called in favor of the president. 

Pennsylvania and Wisconsin are in a similar situation. Both states also couldn’t begin counting absentee ballots until 7 a.m. on Election Day amid high numbers of absentee votes. Wisconsin officials estimate final results will be available later Wednesday morning and Pennsylvania has said results may take days.

Benson told Bridge the weekend before the election that it’s likely going to be a lesson that further change is needed. 

“I think we’re going to learn a lot in the next few days about other legislative changes that we need — probably more time for processing ballots.”