League of Women Voters of Michigan v. Secretary of State ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LEAGUE OF WOMEN VOTERS OF MICHIGAN, FOR PUBLICATION
DEBORAH BUNKLEY, ELIZABETH CUSHMAN, July 14, 2020
and SUSAN SMITH,
Plaintiffs,
v No. 353654
SECRETARY OF STATE,
Defendant.
Before: SAWYER, P.J., and GLEICHER and RIORDAN, JJ.
GLEICHER, J. (concurring in part and dissenting in part).
“All political power is inherent in the people.” Const 1963, art 1, § 1. Before November
2018, Michigan’s Constitution afforded the people only rudimentary protection of their right to
exercise their political power as voters. Article 2 contained 10 sections describing the formal
prerequisites for voting and delineating the procedural framework governing elections. But our
Constitution lacked an affirmative declaration of specific voting rights.
That changed when the people overwhelmingly approved Proposal 3, a constitutional
amendment establishing the following substantive voting rights:
 To vote a secret ballot;
 To vote an absent voter ballot without giving a reason;
 To vote an absent voter ballot during the forty (40) days before an election;
 To apply for and receive an absent voter ballot in person or by mail; and
 To submit an absent voter ballot in person or by mail.
Here are the relevant words the people approved:
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(1) Every citizen of the United States who is an elector qualified to vote in
Michigan shall have the following rights:
(a) The right, once registered, to vote a secret ballot in all elections.
* * *
(g) The right, once registered, to vote an absent voter ballot without giving
a reason, during the forty (40) days before an election, and the right to choose
whether the absent voter ballot is applied for, received and submitted in person or
by mail. [Const 1963, art 2, § 4.]
My colleagues hold that despite the clear and unambiguous language of Proposal 3
establishing a right to vote by mail, an absent voter who mails her ballot has no constitutional right
to have that ballot counted if the ballot arrives after election day. This holding contravenes the
language of the Constitution and the intent of the voters. I respectfully dissent.
I
The central issue presented is whether Article 2, § 4 compels the Secretary of State to count
mailed ballots that arrive after 8 p.m. on election day. A trio of Michigan laws enacted before
Proposal 3’s passage, read together, prevent the Secretary of State from counting absent voter
ballots that arrive in the clerk’s office after the close of the polls. MCL 168.764b(1) states: “An
absent voter ballot must be delivered to the clerk only as authorized in the instructions for an absent
voter provided in section 764a.” MCL 168.764a sets out step-by-step “instructions for an absent
voter.” “Step 6” provides: “The ballot must reach the clerk or an authorized assistant of the clerk
before the close of the polls on election day. An absent voter ballot received by the clerk or an
authorized assistant of the clerk after the close of the polls on election day will not be counted.”
And MCL 168.765 instructs: “If a marked absent voter ballot is received by the clerk after the
close of the polls, the clerk shall plainly mark the envelope with the time and date of receipt and
shall file the envelope in his or her office.” MCL 168.765(4).1 Plaintiffs contend that this statutory
framework cannot be reconciled with the right to vote by mail enshrined in Article 2, § 4. They
seek an order of mandamus compelling the Secretary of State to count properly voted, timely
mailed absent voter ballots regardless of when they arrive in the clerk’s office.
My colleagues find no conflict between these existing election laws and the constitutional
guarantee of a right to vote by mail. The lead opinion declares that despite full compliance with
all absentee voting rules, absentee voters must simply “assume[] the risk” that a mailed ballot
won’t arrive in time to be counted. Specifically acknowledging that voters now have the right to
“submit” their ballots by mail, the lead opinion illogically terminates the right at that moment,
negating the constitutional language the people approved.
1
MCL 168.765a(6), as enacted by 2020 PA 95, effective June 23, 2020, requires that absent voter
ballots received by the clerk before the close of the polls must be delivered “to the absent voter
counting boards” established pursuant to the same public act.
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A
City and township election clerks are authorized to mail absent voter ballots to voters until
5 p.m. on the Friday before a Tuesday election. MCL 168.759(1). Evidence presented to this
Court substantiates that most first-class mail is delivered within two to five days. Assume a voter’s
timely application for an absent voter ballot arrives at the clerk’s office on the Thursday or Friday
before an election, and that the clerk mails the ballot on Friday. 2 A ballot mailed to a voter on a
Friday is unlikely to land in the voter’s hands before the following Monday. Assume further that
the voter immediately fills in the ballot and places it in the mail. That ballot will not arrive in the
clerk’s office until after election day. And depending on the efficiencies of the United States Postal
Service, even ballots mailed to the clerk on the Thursday, Friday or Saturday before an election
may not arrive until after election day. These scenarios are not far-fetched. According to data
supplied by the Secretary of State, during the May 2020 primary election, 3,307 absentee ballots
(1.75% of those cast) arrived too late to be counted.3 Voters who followed all the rules were
nevertheless disenfranchised.
Plaintiffs assert that Michigan’s current election laws unconstitutionally constrain the
Secretary of State from counting properly mailed absentee ballots that arrive after the close of the
polls on election day. They seek an order of mandamus compelling the Secretary to perform her
clear legal duty to direct the counting of such votes. The lead opinion lays out a smorgasbord of
reasons for rejecting plaintiffs’ arguments, all boiling down to one fundamentally incorrect
premise: that Article 2, § 4 allows voters the right to “cast” their ballots by mail, to “submit” their
ballots by mail, and to “mail” their ballots, but does not grant them the right to have their votes
counted.
2
MCL 168.761(1) provides that upon receipt of a valid application for an absent voter ballot, “the
clerk immediately” must mail the absent voter ballot. The Election Officials’ Manual published
by the Michigan Bureau of Elections states: “A request for an absentee ballot must be processed
immediately. It is recommended that the ballot be issued within 24 hours of the receipt of the
application.” Available at , p 5.
3
Plaintiffs’ proofs reveal that in the March 2020 primary election, more than 150,000 voters
requested an absentee ballot during the week before the election. The number of absentee voters
increased substantially in the May 2020 election, undoubtedly due in part to the Covid-19 crisis
and voters’ fear of infection from standing in voting lines. Failing to count even a relatively small
number of late-arriving absentee ballots can make all the difference. President Trump’s margin in
the 2016 presidential election was only 10,704 votes in Michigan. If 45% of eligible voters vote
by absentee ballot in November 2020 and 1.75% of those votes are not counted because they
arrived after the close of the polls on election day, more than 41,000 absent voters will be
disenfranchised.
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B
“[T]here is no more constitutionally significant event than when the wielders of all political
power . . . choose to exercise their extraordinary authority to directly approve or disapprove of an
amendment” to our state’s Constitution. Citizens Protecting Mich’s Constitution v Secretary of
State, 503 Mich. 42, 59; 921 NW2d 247 (2018) (cleaned up).4 In ascertaining the meaning of an
amendment’s words, we are guided by “the rule of ‘common understanding’ ” described by Justice
COOLEY. Traverse City Sch Dist v Attorney General, 384 Mich. 390, 405; 185 NW2d 9 (1971).
The words the voters selected and approved, Justice COOLEY instructed, point the truest course to
constitutional meaning. Id. Ultimately, “ ‘[t]he intent to be arrived at is that of the people[.]’ ”
Id., quoting Cooley, Constitutional Limitations (7th ed), p 81. We locate meaning “by applying
each term’s plain meaning at the time of ratification.” Nat’l Pride At Work, Inc v Governor, 481
Mich. 56, 67-68; 748 NW2d 524 (2008).
The words added by Proposal 3 are not difficult to parse. Voters now have the right to
“vote” by mail. What did the voters understand voting by mail to mean? By enlarging the right
to vote to include voting by a mailed ballot, the people dictated that the votes of absent voters
would be counted. A right to vote by mail is a hollow right indeed if one’s mailed vote is thrown
in a wastebasket or placed in a file. See MCL 168.765.
“The right to vote has always received a preferred place in our constitutional system. The
importance of this right can hardly be overemphasized. It is the basic protection that we have in
insuring that our government will truly be representative of all of its citizens.” Mich State UAW
Community Action Program Council v Secretary of State, 387 Mich. 506, 514; 198 NW2d 385
(1972). The meaning of the phrase “to vote” is deeply engrafted in our state and federal
jurisprudence. Voting encompasses more than merely checking boxes on a form or pulling levers
in a booth. “To vote” means to express a personal political preference and to have that preference
counted. Voting is “a fundamental political right because [it is] preservative of all rights.” Yick
Wo v Hopkins, 118 U.S. 356, 370-371; 6 S. Ct. 1064; 30 L. Ed. 220 (1886). Voting achieves this
sacred place in our democratic pantheon because every vote matters. And that was the common
understanding of the people who added specific language establishing specific voting rights to
Article 2.
A court may discern constitutional meaning by reviewing the existing legal framework
surrounding a new provision. See People v Nutt, 469 Mich. 565, 567; 677 NW2d 1 (2004). Even
a cursory review of the preexisting law surrounding voting confirms that the common
understanding of the term “to vote” necessarily incorporates the right to have one’s vote counted.
Long ago, our own Justice COOLEY recognized in a concurring statement the “right” of “the
electors . . . to have their votes counted and allowed in the general result.” People ex rel Dickinson
v Sackett, 14 Mich. 320, 331 (1866) (COOLEY, J., concurring). One hundred years ago, our Supreme
Court endeavored to protect “the constitutional right of every voter to vote for every officer to be
4
This opinion uses the new parenthetical “cleaned up” to improve readability without altering the
substance of the quotation. The parenthetical indicates that nonsubstantive clutter such as brackets,
alterations, internal quotation marks, and unimportant citations have been omitted from the
quotation. See Metzler, Cleaning Up Quotations, 18 J App Pract & Process 143 (2017).
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elected and to have his vote so counted as to have equal value and potentiality with the vote of
every other elector who votes.” Wattles v Upjohn, 211 Mich. 514, 533-534; 179 N.W. 335 (1920).
The United States Supreme Court has consistently acknowledged that “the right to have
one’s vote counted has the same dignity as the right to put a ballot in a box.” Gray v Sanders, 372
U.S. 368, 380; 83 S. Ct. 801; 9 L. Ed. 2d 821 (1963) (cleaned up). In Reynolds v Sims, 377 U.S. 533,
555; 84 S. Ct. 1362; 12 L. Ed. 2d 506 (1964), a foundational voting rights case, the Supreme Court
again highlighted the indisputable principle that “[o]bviously included within the right to choose,
secured by the Constitution, is the right of qualified voters within a state to cast their ballots and
have them counted.” (Cleaned up.) More recently, in Wisconsin v City of New York, 517 U.S. 1,
12; 116 S. Ct. 1091; 134 L. Ed. 2d 167 (1996), the Supreme Court again referenced the “fundamental
right . . . to have one’s vote counted.”
But we do not need to consult the caselaw to discern the meaning of “to vote.” We stand
in long lines at polling places, too often in inclement weather and sometimes sacrificing our wages
and our health, because we know that “all political power is inherent in the people.” We vote to
make a difference in our national, state or local governance, or to demonstrate our satisfaction with
the status quo. We vote to select our leaders, to directly enact or repeal our laws, or to change our
Constitution. We vote because we understand that voting is the key to a healthy democracy, that
voting empowers “we the people.” We vote because we have taken to heart that every vote counts.
The people who amended our Constitution in 2018 understood that the right to vote
necessarily embodies the right to have one’s vote counted. “The simplest and most obvious
interpretation of a constitution, if in itself sensible, is the most likely to be that meant by the people
in its adoption.” Lake Co v Rollins, 130 U.S. 662, 671; 9 S. Ct. 651; 32 L. Ed. 1060 (1889). And any
possible doubt about what the people intended by empowering mailed voting is dispelled by
subsection (g) of Article 2, § 4, assiduously ignored by my colleagues, instructing that “[t]his
subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes.”
II
Const 1963, art 2, § 4, as amended, grants registered voters the right “to vote an absent
voter ballot without giving a reason during the forty (40) days before an election.” The amendment
additionally grants to registered voters “the right to choose whether the absent voter ballot is
applied for, received and submitted in person or by mail.” These are simple words. We do not
need a dictionary to understand any of them. In everyday parlance, the amendment says that
registered voters can apply for and receive their ballots through the mail. After filling out their
ballots, voters can mail their ballots back to the clerk.
This case should be easy. Because voters have a right to vote by mail if they mail their
ballots to the clerk during the 40 days before an election, they have the right to have their votes
counted when those votes arrive in the clerk’s office. This interpretation squares with the historical
and legal meaning of voting. It corresponds with the voters’ intent.
Remarkably, in the middle of its meandering analysis of Article 2, § 4 the lead opinion
essentially acknowledges that I am right. As to the voters’ right to “submit” a ballot by mail, the
lead opinion opines: “They certainly possess that right.” The lead opinion declaims that it “would
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be absurd” to believe that “all that is guaranteed under Proposal 3 is the right to fill out an absentee
ballot, not to have it counted;” the concurrence agrees that voting “necessarily includes” counting
cast ballots. The lead opinion even goes so far as to say that any vote-counting deadline “chosen
by the Legislature” may not “effectively preclude the ability of a voter to submit their absentee
ballot at any point during the 40 days before an election.” I wholeheartedly agree with these
propositions. And yet the lead opinion manages to talk itself into the “absurd” position it
emphatically disdains. My colleague accomplishes this extraordinary turn-around by violating the
first principle of constitutional interpretation. Rather than engaging the text, my colleague
endeavors to read out of Article 2, § 4 the actual words ratified by the people. Instead, the lead
opinion divines constitutional meaning from a “ballot summary.”
The ballot summary at the heart of the lead opinion’s “common understanding” analysis
was approved by the Board of State Canvassers. According to the lead opinion, it does not
“address” the right by vote by mail or the deadline for counting votes, omissions that the lead
opinion somehow construes as proof that there is no right to vote by mail and that the people could
not have cared less about “deadlines.” In the lead opinion’s view, the ballot summary “suggest[s]
to voters that there would be some limitations on when election officials would be obligated to
accept, and therefore count, ballots.” This is an astonishing proposition for two reasons.
First, the lead opinion does not explain why it finds constitutional meaning in a “ballot
summary” rather than the plain language of the constitutional text the people overwhelmingly
approved. Unless the constitutional language under consideration is ambiguous or susceptible to
many different interpretations, courts are forbidden from considering extraneous evidentiary
sources. See Nat’l Pride At Work, Inc, 481 Mich. at 80 (“When the language of a constitutional
provision is unambiguous, resort to extrinsic evidence is prohibited.”). The words at issue here
are not ambiguous, and the ballot summary is utterly irrelevant. “Our obligation is to give the
words of our Constitution a reasonable interpretation consistent with the plain meaning understood
by the ratifiers. Text that may require reasonable effort to parse is not for that reason ambiguous.”
Co Rd Ass’n of Mich v Governor, 474 Mich. 11, 17; 705 NW2d 680 (2005) (cleaned up).
Second, the notion that a ballot summary trumps the words of the Constitution boggles the
mind. The lead opinion makes no effort to explain why we should regard a ballot summary as a
tool for depriving citizens of specifically enumerated rights they voted to approve. Ballot
summaries cannot displace or override enacted words. And make no mistake, the rights to vote
absentee and to vote by mail are specifically enumerated and easily understood.
Next, stating the obvious, the lead opinion declares that the voters “certainly possess” the
right to “submit their absentee ballot[s] by mail,” (emphasis added), as well as “to receive and
cast” their ballots during the 40 days before an election. The lead opinion defines “the entire
process of voting” as beginning by “requesting an application to apply for an absentee ballot” but
ending with “the delivery of the completed ballot to the appropriate election officials.” In an abrupt
analytical shift, the lead opinion announces that counting an absent voter’s vote is constitutionally
irrelevant. And so it must be to justify upholding a deadline disenfranchising thousands of voters
who conduct themselves in strict conformity with all voting rules.
Rather than engaging with the actual words the people added to our Constitution, my
colleagues instead confer “deadlines” with constitutional magnitude, elevating their importance to
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that of the right to vote itself. “[T]here must be a deadline—at some point, the ballots must be
counted and a winner declared,” the lead opinion inveighs. That deadline is up to the Legislature,
we are admonished, and “[t]he courts’ role is limited to ensuring that the deadline chosen by the
Legislature does not effectively preclude the ability of a voter to submit their absentee ballot at
any point during the 40 days before an election.” Instead of critically examining the legality of
the deadline at the heart of this case, my colleagues suggest that voters just forgo exercising their
right to vote by mail if they want their votes counted, and content themselves with the knowledge
that the Legislature is working on it.
Of course there must be a “deadline” for counting votes. And there is a deadline that
permits the Secretary to count absentee ballots mailed before election day but arriving after. MCL
168.842(1) requires the board of state canvassers to “complete the canvass and announce their
determination” of the result of a general election “not later than the fortieth day after the election.”
The canvass deadline for primary elections is 20 days. MCL 168.581. The Secretary has offered
no reason that the canvass deadlines should not correspond to the deadline for counting timely
mailed absentee ballots.5
Our task is not to mindlessly enforce a deadline solely because the Legislature selected it.
Rather, we must evaluate whether the Secretary is empowered to enforce a deadline that prevents
counting a substantial number of properly mailed ballots, thereby contravening Article 2, § 4. The
lead opinion spills considerable ink in its paean to judicial review and the concurrence scolds on
the same subject,6 yet both conveniently forget the central lesson of Marbury v Madison, 5 U.S.
137; 2 L. Ed. 60 (1803): “a statute apparently governing a dispute cannot be applied by judges . . .
when such an application of the statute would conflict with the Constitution.” Younger v Harris,
401 U.S. 37, 52; 91 S. Ct. 746; 27 L. Ed. 2d 669 (1971). This case is about whether statutory deadlines
stand in the way of the exercise of fundamental constitutional rights. If the statutory deadline
conflicts with the exercise of a constitutional right, the Secretary has a duty as a constitutional
officer to refrain from enforcing the deadline.
The concurring opinion argues that “there is no evidence that the purpose of the
[amendment] was to create an unfettered and absolute right to absentee voting.” This is a peculiar
statement, given that the amendment manifestly does create an explicit right for registered voters
5
It also bears mention that Michigan has a statutory “mailbox rule” applicable to overseas and
“uniformed services” votes that operates to extend the deadline for counting absent voter ballots
that arrive after the polls close if the clerk failed to “transmit” the ballot more than 45 days before
an election. See MCL 168.759a(16).
6
Reaffirming that this Court is not bound by a concession made by the Secretary’s counsel at
argument does not require a review of Marbury v Madison, 5 U.S. 137; 2 L. Ed. 60 (1803). And
despite counsel’s concession corresponding to my position, if the Secretary intended to throw in
the towel and admit defeat she would not have actively pursued a defense in this case.
Undoubtedly the Secretary and her counsel were aware of Court’s holding in Lantz v Southfield
City Clerk, 245 Mich. App. 621, 626; 628 NW2d 583 (2001), an absentee voter ballot that does not
reach the clerk before the close of the polls on election day “cannot be counted irrespective of the
date displayed in the postmark.” Capitulation was not an option.
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to vote by mail during the 40 days before an election. Here are the unambiguously stated rights
the people ratified: “The right, once registered, to vote an absent voter ballot without giving a
reason, during the forty (40) days before an election, and the right to choose whether the absent
voter ballot is applied for, received and submitted in person or by mail.” It is hard to imagine
plainer or more direct language.
Because the right is not “absolute” or “unfettered,” the concurrence propounds, it is up to
the Legislature to determine its boundaries. Platitudes aside, the pertinent inquiry focuses on
whether a statute or regulation burdens the constitutionally protected right to vote by mail. While
the Legislature may enact laws regulating voting, the laws may not prevent a voter from voting,
“or unnecessarily . . . hinder or impair his privilege.” In re Request for Advisory Opinion
Regarding Constitutionality of 2005 PA 71, 479 Mich. 1, 17; 740 NW2d 444 (2007) (cleaned up).
“[T]he Legislature may regulate, but cannot destroy, the enjoyment of the elective franchise.” Id.
at 18 (cleaned up, emphasis in original). On its face, a deadline preventing properly cast absentee
ballots from being counted destroys the rights the people adopted in ratifying Proposal 3.
When considering a voting regulation challenge under the Due Process or Equal Protection
Clauses of the federal Constitution, a court must “weigh the asserted injury to the right to vote
against the precise interests put forward by the State as justifications for the burden imposed by its
rule.” Crawford v Marion Co Election Bd, 553 U.S. 181, 190; 128 S. Ct. 1610; 170 L. Ed. 2d 574
(2008) (cleaned up). Here, plaintiffs’ claims rest on a more straightforward argument: the deadline
directly violates Michigan’s Constitution because it requires the rejection of properly cast ballots.
My colleagues ignore this argument and instead recite that the deadline does not “severe[ly]
infringe” or “effectively preclude” the right to vote. Although I disagree with these conclusions,
placing them in a cognizable legal framework mandates consideration of whether the state has
come forward with some reason that the election-day deadline for counting mailed ballots is
necessary to “preserve the purity of elections” or to “guard against abuses of the electoral
franchise.” In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479
Mich at 17-18. The state has not done so here—and neither have the lead opinion nor the
concurrence. What is the plausible basis for a deadline that disenfranchises thousands of voters
who cast absentee ballots in perfect concordance with all the rules? Proclaiming “there must be a
deadline” hardly qualifies as a justification for the actual deadline under consideration. Simply
put, neither of my colleagues have put forward a single state interest served by failing to count
ballots that arrive the day after an election, or the day after that.
The lead opinion’s discourse on a voter’s “choice” is equally ill founded. Despite
recognizing that Michigan voters now have a constitutional right to vote by mail, the lead opinion
reduces the right to a quotidian choice. “[W]hen choosing to submit an absentee ballot by mail,”
the lead opinion lectures, “one assumes the risk that the ballot will not arrive by the deadline.” 7 I
am unaware of any legal principle supporting that a constitutional right may be dimmed or ignored
7
Ironically, the lead opinion adopts this rule after recounting the story of a letter that remained
undelivered to the intended recipient for 81 years. Apparently, the lead opinion has no quarrel
with the notion that voters must meekly surrender their constitutional rights to the vicissitudes of
the United States Postal Service.
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simply because there is an alternate method available for exercising it. We assume the risk that a
route we choose to drive may have potholes, or that the bag of potatoes we select at the grocery
may include some rotten ones. Constitutional rights are not a game of “gotcha,” penalizing with
a possible forfeit those who exercise them properly. Citizens may now vote by mail. They may
also vote in person. The two rights are constitutionally coequal. Just as the Legislature may not
unnecessarily burden one, it may not unnecessarily burden the other.
Moreover, the amendment approved by the people provides that “[a]ll rights set forth in
this subsection shall be self-executing.” Const 1963, art 2, § 4(1). A self-executing constitutional
provision “ ‘supplies a sufficient rule, by means of which the right given may be enjoyed and
protected, or the duty imposed may be enforced[.]’ ” Thompson v Secretary of State, 192 Mich.
512, 520; 159 N.W. 65 (1916), quoting Cooley, Constitutional Limitations (7th ed), p 121. This
means that “[l]egislation is not imperatively necessary to give it effect.” Hamilton v Deland, 227
Mich. 111, 115; 198 N.W. 843 (1924). While legislation “in aid” of a constitutional provision or
designed to “better protect” the provision may be enacted, “ ‘all such legislation must be
subordinate to the constitutional provision, and in furtherance of its purpose, and must not in any
particular attempt to narrow or embarrass it.’ ” Id. at 116-117, quoting Cooley, Constitutional
Limitations (7th ed), p 122. Legislation that “curtail[s]” or places “undue burdens” on a self-
executing constitutional right is prohibited. Wolverine Golf Club v Hare, 24 Mich. App. 711, 725;
180 NW2d 820 (1970), aff’d Wolverine Golf Club v Hare, 384 Mich. 461, 466; 185 NW2d 392
(1971).
The provisions added to Const 1963, art 2 clearly grant voters a specific right to vote by
mail, and declare the right to be self-executing. The right to vote by mail and to have one’s vote
counted are not abstract concepts requiring further legislative explication or definition.
Accordingly, legislation is not required to accomplish the will of the people, and legislation that
“curtails” or unduly burdens the right cannot be enforced.
III
“The primary purpose of the writ of mandamus is to enforce duties created by law[.]” State
Bd of Ed v Houghton Lake Community Sch, 430 Mich. 658, 667; 425 NW2d 80 (1988). A writ
may issue “if the plaintiffs prove they have a clear legal right to the performance of [a] specific
duty” and “that the defendant has a clear legal duty to perform” a specific act. In re MCI Telecom
Complaint, 460 Mich. 396, 443; 596 NW2d 164 (1999) (cleaned up). Those requirements are met
here.
“[A] clear legal right is . . . founded in, or granted by, law; a right which is inferable as a
matter of law from uncontroverted facts regardless of the difficulty of the legal question to be
decided.” Rental Props Owners Ass’n of Kent Co v Kent Co Treasurer, 308 Mich. App. 498, 519;
866 NW2d 817 (2014) (cleaned up). As discussed above, an absent voter’s right to have her vote
counted is readily inferable as a matter of law. Indeed, as the lead opinion concedes, it would be
“absurd” to think otherwise. Absent voters who meet the requirements for voting, follow the rules,
and mail their ballots before the deadline have a constitutional right to have their votes counted.
Lest there be any doubt, Article 2, § 4 itself provides: “This subsection shall be liberally construed
in favor of voters’ rights in order to effectuate its purposes.” The Secretary, too, is bound by this
commandment.
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I would grant the motion for mandamus and order the Secretary to instruct the clerks that
timely mailed absent voter ballots that arrive after the close of the polls and before the date of the
canvass must be counted.8
/s/ Elizabeth L. Gleicher
8
I take no position on the additional issues raised by plaintiffs, as the first constitutional issue they
raise is dispositive. I concur with the lead opinion in result only that the Constitution does not
require local clerks to provide return postage for absent voter ballots.
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