BSP Law Secures Unanimous Court of Appeals Decision for Michigan Legislature

On October 16, 2020, the Michigan Legislature, represented by BSP Law, secured a unanimous Court of Appeals decision upholding three crucial election laws.

The three laws, which have been in place for decades, are:

• MCL 168.932(f)—colloquially known as the ballot-harvesting ban—says that the only persons who can possess or return a voter’s absentee ballot are a postal employee or common carrier, a clerk or clerk’s assistant, or an immediate family or household member. 
• MCL 168.759b and MCL 168.764a, set the absentee ballot-receipt deadline as 8:00 p.m. on Election Day—that is, an absentee ballot must reach the clerk by that time or it is not counted. 
• MCL 168.764a says each absentee voter must pay for her own postage. 

In early June 2020, the Michigan Alliance for Retired Americans, Detroit/Downriver Chapter of the A. Philip Randolph Institute, and several affiliated individuals sued Michigan’s Secretary of State and Attorney General.  They claimed that the laws violated Michiganders’ constitutional right to vote absentee, see Const 1963, art 2, § 4, and they sought to enjoin those statutes.  In September, the Court of Claims partially granted Plaintiffs’ request, holding that the ballot-receipt deadline was unconstitutional and extending the deadline to allow ballots to be counted so long as they were postmarked by November 2 (the day before Election Day).  It also held the ballot-harvesting ban unconstitutional and amended it to longer apply from 5:00 p.m. on Friday, October 30, 2020, through the close of the polls on Election Day. 

The Attorney General and Secretary of State chose not to appeal the ruling.  The Legislature therefore stepped into the gap, immediately intervening as a Defendant and appealing the Court of Claims’ holdings on the ballot-receipt deadline and ballot-harvesting ban. 

On October 16, the Court of Appeals unanimously held for the Legislature on all counts.  The court first (and crucially) recognized that the Legislature had standing.  The Legislature “certainly has an interest in defending its own work,” the court said.  This is doubly true when the statute at issue is an election law because the Legislature has a “significant interest” in “election procedures.” 

Second, the court agreed with the Legislature that because Plaintiffs’ requested relief reaches far “beyond the particular circumstances of these plaintiffs,” their claims are facial challenges, not as-applied challenges.  This matters because it is far harder to win on a facial challenge—which is considered under an “extremely rigorous” standard—rather than an as-applied challenge. 

Finally, turning to the merits, the court held that the ballot-receipt deadline and ballot-harvesting ban are constitutional.  For the ballot-receipt deadline point, it relied on its recent case, League of Women Voters of Mich v Secretary of State, ___ Mich App ___, ___; ___ NW2d ___ (issued July 14, 2020, Docket No. 353654), which held that the ballot-receipt deadline survives a facial challenge under Const 1963, art 2, § 4.  As for the ballot-harvesting ban, the court noted that under Michigan law, the Legislature has a duty to uphold the purity and integrity of elections, which it must balance with access to the vote.  So long as an election law is generally applicable and evenhanded—i.e., it is reasonable and nondiscriminatory—it is constitutional.  The court held that the ballot-harvesting ban does not significantly burden the right to vote because of the myriad ways an absentee voter may return her ballot—either in person, with help, or by mail.  What’s more, the court recognized that the ballot-harvesting ban is an important shield “against voter fraud.”