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, 9:00 a.m.
Plaintiffs,
v No. 353654
SECRETARY OF STATE,
Defendant.
Before: SAWYER, P.J., and GLEICHER and RIORDAN, JJ.
SAWYER, P.J.
Plaintiffs filed this complaint for mandamus seeking an order of this Court directing
defendant to implement certain procedures regarding the processing of absentee ballots. After
reviewing the parties’ briefs and hearing oral argument, we are not persuaded that plaintiffs are
entitled to relief and we deny the writ for mandamus.
Plaintiff League of Women Voters of Michigan is a statewide organization with an interest
in voting rights. The individual plaintiffs are League members and registered voters residing in
Michigan. Defendant Secretary of State (“defendant”) is “the chief election officer of the state”
with “supervisory control over local election officials in the performance of their duties under the
provisions of” the Michigan Election Law, MCL 168.1 et seq. MCL 168.21. Defendant shall
“[a]dvise and direct local election officials as to the proper methods of conducting elections.”
MCL 168.31(1)(b).
In November 2018, Michigan voters approved Proposal 3, which granted all Michigan
voters the constitutional right to vote by absentee ballot without stating a reason. 1 That right was
1
Prior to the passage of Proposal 3 in 2018, state election law required voters to indicate one of
six reasons for voting by absentee ballot. MCL 168.759.
-1-
incorporated into Const 1963, art 2, § 4, pertaining to the place and manner of elections. Const
1963, art 2, § 4, as amended, states in relevant part as follows:
(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. During that time, election officials authorized to issue absent voter ballots
shall be available in at least one (1) location to issue and receive absent voter ballots
during the election officials’ regularly scheduled business hours and for at least
eight (8) hours during the Saturday and/or Sunday immediately prior to the election.
Those election officials shall have the authority to make absent voter ballots
available for voting in person at additional times and places beyond what is required
herein.
***
All rights set forth in this subsection shall be self-executing. This
subsection shall be liberally construed in favor of voters’ rights in order to
effectuate its purposes. Nothing contained in this subsection shall prevent the
legislature from expanding voters’ rights beyond what is provided herein. This
subsection and any portion hereof shall be severable. If any portion of this
subsection is held invalid or unenforceable as to any person or circumstance, that
invalidity or unenforceability shall not affect the validity, enforceability, or
application of any other portion of this subsection.
(2) Except as otherwise provided in this constitution or in the constitution
or laws of the United States the legislature shall enact laws to regulate the time,
place and manner of all nominations and elections, to preserve the purity of
elections, to preserve the secrecy of the ballot, to guard against abuses of the
elective franchise, and to provide for a system of voter registration and absentee
voting. . . .
In light of the voters’ approval of Proposal 3 and the amendments to Const 1963, art 2, § 4,
the Michigan Legislature enacted 2018 PA 603, which amended certain provisions of the Michigan
Election Law.2 Plaintiffs contend that some provisions pertaining to absentee voting have not been
amended to conform with the amendments to Const 1963, art 2, § 4. Plaintiffs filed a three-count
2
We note that it appears that the Legislature is continuing to consider these issues. See, e.g., HB
5807, which, if passed as introduced, would address some of the issues presented in this case.
-2-
complaint for mandamus challenging the statutory requirement that absentee ballots be received
by 8:00 p.m. on election day and the statutory requirement that voters pay the postage to return an
absentee ballot. Plaintiffs also allege that the received-by deadline violates the purity of elections
clause set forth in Const 1963, art 2, § 4, the free speech and assembly clauses set forth in Const
1963, art 1, §§ 3 and 5, the right to equal protection set forth in Const 1963, art 1, § 2, and the right
to vote set forth in Const 1963, art 2, § 4(1)(a). Further, plaintiffs allege that some city and
township clerks fail to adhere to the requirement set forth in MCL 168.761(1) that the clerk
“immediately” upon receipt of an absent voter application mail an absentee ballot to the voter and
fail to adhere to the requirement set forth in Const 1963, art 2, § 4(1)(g) guaranteeing voters the
right to vote by absentee ballot in the 40 days before an election.
“[M]andamus is the proper remedy for a party seeking to compel election officials to carry
out their duties.” Citizens Protecting Michigan’s Constitution v Secretary of State, 324 Mich. App.
561, 583; 922 NW2d 404 (2018), aff’d 503 Mich. 42 (2018). “To obtain the extraordinary remedy
of a writ of mandamus, the plaintiff must show that: (1) the plaintiff has a clear, legal right to
performance of the specific duty sought, (2) the defendant has a clear legal duty to perform, (3)
the act is ministerial, and (4) no other adequate legal or equitable remedy exists that might achieve
the same result.” Rental Props Owners Ass’n of Kent Co v Kent Co Treasurer, 308 Mich. App. 498,
518; 866 NW2d 817 (2014), lv den 498 Mich. 853 (2015). “A clear legal right is a right clearly
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.” Attorney General v Bd of
State Canvassers, 318 Mich. App. 242, 249; 896 NW2d 485 (2016). “A ministerial act is one in
which the law prescribes and defines the duty to be performed with such precision and certainty
as to leave nothing to the exercise of discretion or judgment.” Berry v Garrett, 316 Mich. App. 37,
42; 890 NW2d 882 (2016) (quotation marks and citation omitted). A writ of mandamus is
inappropriate if the act sought to be performed involves judgment or the exercise of discretion.
Hanlin v Saugatuck Twp, 299 Mich. App. 233, 248; 829 NW2d 335 (2013). The plaintiff has the
burden of demonstrating entitlement “to the extraordinary remedy of a writ of mandamus.”
Citizens Protecting Michigan’s Constitution, 324 Mich. App. at 584.
The most significant issue presented in this case is Count I of plaintiffs’ complaint, whether
the statutory requirement that absentee ballots be received by the local election clerk by 8 p.m. on
election day violates Const 1963, art 2, § 4. We conclude that it does not. But, before analyzing
this question, we must address plaintiffs’ position that defendant has conceded that the “received
by” rule is unconstitutional. We read defendant’s brief as agreeing with plaintiffs that the
“received by election day” requirement does violate Const 1963, art 2, § 4, but with some
reservations. After advancing a construction of Proposal 3 that largely agrees with plaintiffs’
position on this point, defendant then states:
The larger issue, and arguably the highest hurdle to this construction of §
4(1)(g), is the absence of language regarding when an AV ballot voted by mail by
election day must be received by an election official in order to be counted. This
silence could be viewed as evidence that the construction advanced above is faulty.
The better interpretation, however, is that the drafters left space within the
Constitution in which the Legislature can act through supplemental legislation. But
the Legislature has not yet done so, and the only recourse at this time is to consult
existing statutory provisions for guidance. [Defendant’s brief, p 15.]
-3-
Moreover, at oral argument, defendant’s attorney certainly seemed to take a position that agreed
with plaintiffs that the “received by election day” requirement violates the Constitution as amended
by Proposal 3. But we do not view such a concession by defendant as resolving the issue.
We recognize the ability, indeed the desirability, of parties in a lawsuit to resolve their
differences amongst themselves without the unnecessary intervention of the courts. But it is one
thing for parties in a particular action to reach an agreement that only affects those parties in that
action. It is yet another thing to allow parties to reach an agreement that would affect the entire
state by means of an agreement as to the proper interpretation of a statute or the Constitution as
will be applied generally. This, ultimately, is the province of the courts. Indeed, as Chief Justice
Marshall wrote long ago in Marbury v Madison, 5 U.S. 137, 177 (1803), “It is emphatically the
province and duty of the judicial department to say what the law is. . . . If two laws conflict with
each other, the courts must decide on the operation of each.”
Chief Justice Marshall expounded on this in further detail:
The powers of the legislature are defined, and limited; and that those limits may not
be mistaken, or forgotten, the constitution is written. To what purpose are powers
limited, and to what purpose is that limitation committed to writing, if these limits
may, at any time, be passed by those intended to be restrained? The distinction,
between a government with limited and unlimited powers, is abolished, if those
limits do not confine the persons on whom they are imposed, and if acts prohibited
and acts allowed, are of equal obligation. It is a proposition too plain to be
contested, that the constitution controls any legislative act repugnant to it; or, that
the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is
either a superior, paramount law, unchangeable by ordinary means, or it is on a
level with ordinary legislative acts, and like other acts, is alterable when the
legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to
the constitution is not law: if the latter part be true, then written constitutions are
absurd attempts, on the part of the people, to limit a power, in its own nature
illimitable.
Certainly all those who have framed written constitutions contemplate them
as forming the fundamental and paramount law of the nation, and consequently the
theory of every such government must be, that an act of the legislature, repugnant
to the constitution, is void.
This theory is essentially attached to a written constitution, and is
consequently to be considered, by this court, as one of the fundamental principles
of our society. It is not therefore to be lost sight of in the further consideration of
this subject.
-4-
If an act of the legislature, repugnant to the constitution, is void, does it,
notwithstanding its invalidity, bind the courts, and oblige them to give it effect?
Or, in other words, though it be not law, does it constitute a rule as operative as if
it was a law? This would be to overthrow in fact what was established in theory;
and would seem, at first view, an absurdity too gross to be insisted on. [5 US at
176-177.]
While Chief Justice Marshall was addressing a case of Congress exceeding the limits of its
powers in enacting legislation, we find guidance here where we are faced with the powers of an
executive branch official exercising executive power. That is, we posit that, just as a legislative
body cannot legitimately enact a statute that is repugnant to the Constitution, nor can an executive
branch official effectively declare a properly enacted law to be void by simply conceding the point
in litigation. To vest such power in an official, it would effectively grant such official the power
to amend the Constitution itself. And, just as Chief Justice Marshall rejected the ability of a
legislative body amending the Constitution by an ordinary act, we must reject the ability of an
executive branch official to do the same.3 When a dispute arises regarding whether a properly
enacted statute violates the Constitution, that dispute must be resolved by the courts, not by a single
individual within the executive branch.4
For these reasons, to the extent that defendant concedes that the existing statutory scheme
violates the Michigan Constitution in light of Proposal 3, we reject the idea that this resolves this
dispute or is binding on this Court. While we give the Secretary’s position due consideration, we
are not bound by it. Rather, we must now continue to our own analysis regarding whether the
existing “received by election day” rule is now contrary to Const 1963, art 2, § 4. We conclude
that it is not.
Plaintiffs allege that the statutory requirement that absentee ballots be received by 8:00
p.m. on election day violates Const 1963, art 2, § 4(1)(g), which guarantees voters the right to vote
by absentee ballot “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.” Plaintiffs assert
that the provision requires that any absentee ballot submitted by mail in the 40 days before an
3
This is not to say that neither the Legislature nor the executive branch have a role to play in
interpreting the Constitution. It is certainly contemplated that the Legislature would consider the
Constitution whenever it enacts a statute and reject those that it finds to be repugnant to the
Constitution. That is, we would expect the Legislature to exercise constitutional self-restraint.
Similarly, we would think it a duty of a Governor to reject (i.e., veto) a bill passed by the
Legislature if the Governor is convinced that the bill violates the Constitution.
4
There is, of course, a role for the Legislature and the Governor to play in resolving such a dispute
if they choose to do so by repealing or amending the statute at issue. But if such action is taken,
while it would resolve the dispute, it would not resolve the question of the constitutionality of the
prior enactment. And, more importantly to the present dispute, it is not dependent on the actions
of a single member of the executive branch.
-5-
election must be counted even if it is received after 8:00 p.m. on election day. Plaintiffs rely on
the self-executing provision of Const 1963, art 2, § 4, which states, in relevant part:
All rights set forth in this subsection shall be self-executing. This
subsection shall be liberally construed in favor of voters’ rights in order to
effectuate its purposes.
Plaintiffs contend that self-executing constitutional provisions are judicially enforceable without
further legislation. Defendant argues that plaintiffs have not demonstrated a clear legal right to
the performance of the act sought, but also argues that declining to count ballots received after the
8:00 p.m. on election day deadline appears to violate Const 1963, art 2, § 4.
The 8:00 p.m. received-by deadline set forth in MCL 168.764a5 states, in relevant part, as
follows:
The following instructions for an absent voter shall be included with each
ballot or set of ballots furnished an absent voter:
***
Step 6. 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 assistant of the clerk after the close of the polls on election day will
not be counted.
MCL 168.720 provides that polls close at 8:00 p.m. The question presented is whether the
amended language in Const 1963, art 2, § 4(1)(g) renders the 8:00 p.m. received-by deadline
unconstitutional. In interpreting constitutional provisions, this Court applies two rules of
interpretation. Makowski v Governor, 495 Mich. 465, 472, 473; 852 NW2d 61 (2014). “First, the
interpretation should be the sense most obvious to the common understanding; the one which
reasonable minds, the great mass of people themselves, would give it.” Id. (quotation marks and
5
Although plaintiffs argue that the 8:00 p.m. received-by deadline contravenes Const 1963, art 2,
§ 4, they do not identify the specific statutory language that they assert is unconstitutional. It
appears that plaintiffs challenge the language set forth in MCL 168.764a, the provision providing
general instructions for absentee voters. MCL 168.759b also requires that absentee ballots “be
returned to the clerk in time to be delivered to the polls prior to 8 p.m. on election day,” but that
provision pertains to emergency absentee voter applications submitted after the absentee voter
application deadline because of physical disability or a voter’s absence from the city or township
because of sickness or death in his or her family. It does not appear that plaintiffs challenge that
provision because they made no mention of it in their brief. For all practical purposes, however,
plaintiffs’ arguments would apply to either provision.
-6-
citation omitted).6 “Words should be given their common and most obvious meaning, and
consideration of dictionary definitions used at the time of passage for undefined terms can be
appropriate.” In re Burnett Estate, 300 Mich. App. 489, 497-498; 834 NW2d 93 (2013). Every
constitutional provision “must be interpreted in the light of the document as a whole, and no
provision should be construed to nullify or impair another.” Lapeer Co Clerk v Lapeer Circuit
Court, 469 Mich. 146, 156; 665 NW2d 452 (2003). Second, the interpretation should consider “the
circumstances surrounding the adoption of the constitutional provision and the purpose sought to
be accomplished.” Id. (quotation marks and citation omitted).
Plaintiffs and defendant interpret the first sentence of Const 1963, art 2, § 4(1)(g), as
requiring that ballots mailed by election day be counted. The provision guarantees voters “[t]he
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.” Thus, it grants voters the right to vote by absentee
ballot without giving a reason in the 40 days before an election and the right to choose whether to
submit the ballot in person or by mail. But we do not share plaintiff’s view that these two clauses,
when read together, render the “received by” rule unconstitutional.
We turn first to addressing Justice Cooley’s directive that we consider what the “great mass
of the people” would understand Proposal 3 to mean when they adopted it. There are two primary
sources to guide us. First, the summary “statement of purpose” that actually appeared on the ballot
and, second, the actual language of the constitutional amendment. We turn first to the ballot
summary.
Const 1963, art 12, § 2, states that a ballot used to amend the constitution by petition of
registered voters “shall contain a statement of the purpose of the proposed amendment . . . .” The
ballot at issue provided the following statement regarding Proposal 3’s purpose:
Proposal 18-3
A proposal to authorize automatic and Election Day voter registration, no-
reason absentee voting, and straight ticket voting; and add current legal
requirements for military and overseas voting and postelection audits to the
Michigan Constitution
This proposed constitutional amendment would allow a United States citizen who
is qualified to vote in Michigan to:
• Become automatically registered to vote when applying for, updating or
renewing a driver’s license or state-issued personal identification card,
unless the person declines.
6
The principle of looking to the meaning that “reasonable minds, the great mass of the people
themselves, would give it” is deeply rooted in Michigan jurisprudence, going back to a treatise by
Justice Cooley. See Cooley’s Const Lim (6th ed), p 81.
-7-
• Simultaneously register to vote with proof of residency and obtain a
ballot during the 2-week period prior to an election, up to and including
Election Day.
• Obtain an absent voter ballot without providing a reason.
• Cast a straight-ticket vote for all candidates of a particular political party
when voting in a partisan general election.
Should this proposal be adopted?
[ ] YES
[ ] NO7
Only the third bullet point addresses absentee voting. And that bullet point only addresses
the right to vote by absentee ballot without providing a reason.8 Not only does it not address a
deadline by which the absentee ballot must be received by the election clerk, it does not even
address creating a right to submit that ballot by mail. Accordingly, a voter whose knowledge of
the proposal was limited to reading the “statement of purpose” that appeared on the ballot would
not have understood it to have a created a constitutional right to vote that ballot by mail, much less
when it must be received by.
Of course, a more conscientious voter who took the time to read the entire proposed
language of the proposed constitutional amendment would understand that it incorporated
provisions regarding absentee voting beyond not having to provide a reason for doing so. But this,
too, falls short of creating an expectation or understanding by the voters that they could mail the
ballot on election day and have it counted even though it would be received after election day. The
language of the amendment itself is devoid of any provision regarding when the ballot must be
mailed by or when it must be received. Those issues are simply unaddressed. But the amendment
is not completely devoid of references to when the local election officials must accept those ballots:
(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.
During that time, election officials authorized to issue absent voter ballots shall be
available in at least one (1) location to issue and receive absent voter ballots during
the election officials’ regularly scheduled business hours and for at least eight (8)
hours during the Saturday and/or Sunday immediately prior to the election. Those
7
Official Ballot Wording Approved by Board of State Canvassers, September 7, 2018
accessed June 18, 2020).
8
Similarly, that is the only portion of the absentee voting rules that appear in the bold-faced header
in the ballot language.
-8-
election officials shall have the authority to make absent voter ballots available for
voting in person at additional times and places beyond what is required herein.
[Emphasis added.]
While the emphasized language does not create any specific deadline by which ballots must be
received, it is suggestive that election officials are only obligated to be available during regular
business hours, plus some additional hours on the weekend immediately preceding the election.
While this would not necessarily preclude a belief that ballots mailed on or before election day but
received after the polls closed would not be counted, it would suggest to voters that there would
be some limitations on when election officials would be obligated to accept, and therefore count,
ballots. And it certainly does not create an expectation that a ballot can be mailed on election day
and have it counted.
In short, while the language of the amendment itself would not necessarily disabuse a voter
of the belief that an absentee ballot mailed on election day but received thereafter would
nevertheless be counted, nor does the language create a belief that it would. Thus, we cannot
conclude that “the great mass of people” understood that the amendment it was voting on demands
the deadline for casting an absentee ballot be based upon the time it is mailed rather than the time
that it is received.
We similarly reject the argument that the statutory requirement that an absentee ballot be
received by the election officials before the close of the polls on election day impairs the right of
a voter to choose to submit their absentee ballot by mail. They certainly possess that right. And,
while Proposal 3 creates a 40-day period during which a voter has the ability to receive and cast
an absentee ballot, that does not mean that a requirement that a ballot must be received by the time
the polls close impairs a voter’s ability to mail in their absentee ballot.9 We acknowledge that it
does affect when an absentee voter must mail their ballot so that it arrives by the deadline. But the
fact that a voter must act sooner when they choose to mail in their ballot rather than deliver it does
not deprive them of the choice; rather, it merely affects how and when that choice must be
exercised.
Moreover, any deadline has an arbitrary nature to it and different policy considerations
behind it. Even plaintiffs’ suggestion that we rule that ballots postmarked on or before election
day must be counted if received by election officials within the six-day period following election
day, while having a valid policy consideration behind it,10 is also ultimately arbitrary.
Additionally, any deadline by which a ballot must be received creates the possibility that some
9
One of the issues presented in this case, which will be addressed infra, deals with an allegation
that not all local elections clerks make absentee ballots available at the beginning of the 40-day
period. This, however, presents a different question.
10
The six-day deadline coincides with the date by which local clerks must determine whether to
count any provisional ballots. MCL 168.813. A provisional ballot is one cast on election day by
a voter who does not appear on the registration rolls for the polling place at which the voter appears
and it must thereafter be determined if the voter was, in fact, eligible to vote. MCL 168.523a.
-9-
votes will not be counted. Articles in the media occasionally appear about letters that are delivered
years, even decades, after they are mailed.11 While these are extreme, and undoubtedly rare,
examples, they point out that when choosing to submit an absentee ballot by mail, one assumes
the risk that the ballot will not arrive by the deadline (any deadline), or even arrive at all.
Certainly, the later the deadline to be received by, the greater the likelihood is that a ballot
will arrive in time to be counted. But ultimately any deadline carries with it the possibility that
voters will be disenfranchised as their ballots will arrive too late to be counted.12 Obviously,
though, there must be a deadline—at some point, the ballots must be counted and a winner
declared. What that deadline should be is a policy decision. And we follow the view that courts
should typically defer to the Legislature in making policy decisions. There are many competing
considerations—what deadline gives a fair opportunity for all persons to vote on an equal basis,
what deadline allows for votes to be counted in a timely manner (and what is considered timely),
what other deadlines in the process may need to be changed as well, to name just a few. These are
considerations best resolved by reflective legislative consideration, not by judicial fiat. 13 The
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.14
Plaintiffs argue that the provision in Proposal 3 that grants the right to vote by absentee
ballot without providing a reason and to submit that ballot by mail, and to do so anytime during
the 40 days before an election, requires that a voter be able to mark that ballot and deposit it in the
mail anytime during that 40-day period, including on election day. Again, the relevant passage
reads: “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.” § 4(1)(g). While this provision does
not define the word “vote,” plaintiffs looks to a number of sections within the election statute that
11
See, e.g., “Long-lost letter: Postal Service delivers 81-year-old Christmas card to Billings
woman”, Billings Gazette, May 27, 2019. accessed June 18, 2020. And, actually, in this case the letter
never was actually delivered to the intended recipient or their heir as the article indicates that it
was returned to sender (or, actually, the sender’s heir, as the sender had died 50 years previously).
12
For that matter, even in-person voting carries a deadline—to present oneself by the time the
polls close. There are likely cases where a voter arrives after the polls close, for whatever reason,
and is unable to cast their ballot.
13
Plaintiffs assert that it is “manageable” to implement a “sent-by-election-day deadline” rather
than a “received-by-election-day deadline,” even pointing to eleven states that do so. This would
certainly be relevant to the Legislature if it chooses to address this issue. But it does not compel
this Court to grant plaintiffs’ requested relief.
14
For example, if the Legislature were to set the deadline 45 days before the election, such a
provision would clearly violate § 4(1)(g).
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use the word “vote” in a context that suggests a meaning of marking a ballot.15 Plaintiffs argue
that to interpret the word “vote” in § 4(1)(g) as requiring the delivery of the ballot to election
officials would render these statutes “nonsensical” and “metaphysically impossible” because the
context of the use of the word “vote” in those statutes requires it to mean “marking a ballot” or
similar usage. We are not persuaded by plaintiffs’ argument.
We reject the idea that the word “vote” must necessarily be given the exact same meaning
under both § 4(1)(g) and the various statutory provisions cited by plaintiffs. “Vote” has many
different meanings, both as a noun and a verb.16 But, more to the point, even accepting plaintiffs’
argument that “vote” means something akin to “marking the absentee ballot,” it does not change
the outcome. Voting is not the single act of marking a ballot, but the entire process. 17 Indeed,
ultimately plaintiffs’ argument is self-defeating. If we accept plaintiffs’ argument that the plain
text employs “the commonsense meaning that a person ‘votes’ an absentee ballot when she fills it
out,”18 then we would necessarily have to conclude that all that is guaranteed under Proposal 3 is
the right to fill out an absentee ballot, not to have it counted. Such a conclusion would be absurd.
Accordingly, “vote” must refer to the entire process of voting, which in the context of absentee
voting starts with requesting an application to apply for an absentee ballot and continues to the
delivery of the completed ballot to the appropriate election officials.
This then brings us back to our previous discussion. There must be a deadline for the
submission of the completed ballot to election officials. And the deadline under existing law does
not effectively preclude a voter from completing the process of voting by absentee ballot during
the 40 days before the election.19
We turn next to plaintiffs’ argument that the statutory requirement that absentee ballots be
received by the close of the polls, even if previously constitutional, became unconstitutional
because “the legislature may not act to impose additional obligations on a self-executing
15
See MCL 168.764a, MCL 168.759a(6), MCL 168.759a(13), MCL 168.932(i), and MCL
168.931(m).
16
See, e.g., Merriam-Webster’s Collegiate Dictionary (11th ed.), which provides over a dozen
different definitions, none of which specifically refer to “marking a ballot” or similar language.
The closest are “the act or process of voting” and “a method of voting.”
17
See the definition referred to in the previous footnote.
18
Plaintiffs’ brief, p 20.
19
As a side note, there is an inherent flaw in plaintiffs’ argument that ballots must be counted if
mailed on election day, even if received thereafter. The plain text of § 4(1)(g) guarantees the right
“to vote an absent voter ballot . . . during the forty (40) days before an election . . .” (emphasis
added). Even if we were to accept plaintiffs’ constrained definition of “vote” and the argument
that that definition compels the counting of ballots received after the polls close, that would require
that the mailed-in ballots would have to have been postmarked the day before election day, but not
those postmarked on election day. That is, § 4(1)(g) by its terms does not guarantee a right to vote
by absentee ballot on election day, only during the 40 days before election day.
-11-
constitutional provision.” Wolverine Golf Club v Secretary of State, 384 Mich. 461, 466; 185
NW2d 392 (1971). In that case, the Michigan Supreme Court found violative of the state
constitution a statutory provision that initiative petitions must be submitted at least ten days before
the start of a legislative session. The Court, 384 Mich. at 466, reasoned that:
As pointed out by Judge Lesinski in the opinion below (1970), 24 Mich. App.
711, 725:
“It is settled law that the legislature may not act to impose additional
obligations on a self-executing constitutional provision. Soutar v. St. Clair County
Election Commission (1952), 334 Mich. 258; Hamilton v. Secretary of State (1924),
227 Mich. 111, 125:
“ ‘ “The only limitation, unless otherwise expressly indicated, on legislation
supplementary to self-executing constitutional provisions is that the right
guaranteed shall not be curtailed or any undue burdens placed thereon.” ’ ”
Whether we view the ten-day filing requirement in an historical context or
as a question of constitutional conflict, the conclusion is the same—the requirement
restricts the utilization of the initiative petition and lacks any current reason for so
doing.
While Proposal 3, by its express terms, is self-executing, we reject plaintiffs’ argument that that
precludes the Legislature from applying a deadline by which absentee ballots must be received.
As already discussed at length, a deadline is necessary. Indeed, even plaintiffs tacitly admit the
necessity of a deadline by proposing a deadline of their own. And while the drafters of Proposal
3 could easily have included a deadline by which ballots must be received, they did not do so.
Certainly, the drafters would have been aware of the existing requirement that ballots be received
by the close of polls on election day, yet chose not to include a provision altering this deadline in
their proposal. Presumably, the drafters were content to leave this decision to the Legislature.
Indeed, § 4(2) provides that “the legislature shall enact laws to regulate the time, place and manner
of all nominations and elections . . . and to provide for a system of voter registration and absentee
voting.”
Thus, the question under Wolverine Golf Club becomes whether the current deadline
curtails or places an undue burden on voters from voting absentee, or submitting their absentee
ballot by mail. We conclude that it does not. While a voter may submit their absentee ballot by
mail, they are not required to do so. They may personally deliver the ballot in person to the city
or township clerk, they may have an immediate family member deliver the ballot, or request the
local clerk to pick up the ballot. MCL 168.764a. And, of course, a voter may still mail in their
ballot, though with the need to do so sufficiently in advance of election day to ensure the likelihood
that it will be delivered by election day. And a voter is provided with a 40-day period in which to
do so.
Plaintiffs next argue that the received-by deadline violates the purity of elections clause set
forth in Const 1963, art 2, § 4(2). We disagree. The purity of elections clause states that “the
legislature shall enact laws to regulate the time, place and manner of all nominations and elections,
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to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of
the elective franchise, and to provide for a system of voter registration and absentee voting.” Const
1963, art 2, § 4(2). “The phrase ‘purity of elections’ does not have a single precise meaning.
However, it unmistakably requires fairness and evenhandedness in the election laws of this state.”
Barrow v Detroit Election Comm, 305 Mich. App. 649, 676; 854 NW2d 489 (2014) (quotation
marks and citation omitted).
The Michigan Supreme Court has interpreted the “purity of elections”
clause to embody two concepts: first, that the constitutional authority to enact laws
to preserve the purity of elections resides in the Legislature; and second, that any
law enacted by the Legislature which adversely affects the purity of elections is
constitutionally infirm. [Taylor v Currie, 277 Mich. App. 85, 96; 743 NW2d 571
(2007), lv den 483 Mich. 907 (2009) (quotation marks and citations omitted).]
Plaintiffs argue that the received-by deadline violates the purity of elections clause because
it permits two similarly situated individuals to mail their absentee ballots on the same day, but
because of differences in mail-processing speeds, one voter’s ballot may be timely received and
counted and the other voter’s ballot may not be timely received and, accordingly, not counted.
Plaintiffs also assert that enforcing the received-by deadline results in an impermissible
differentiation between absentee voters whose ballots are not counted because they were not
received by 8:00 p.m. on election day and voters whose ballots are counted because the voters
were standing in line to vote at the polls at 8:00 p.m. when the polls closed. MCL 168.720 provides
that “[e]very qualified elector present and in line at the polls at the hour prescribed for the closing
therefore shall be allowed to vote.” Further, plaintiffs argue that the received-by deadline subverts
“the will of the voters who adopted Proposal 3,” and that the purity of elections clause requires
that ballots mailed by election day be counted. (Plaintiffs’ brief, pp 29-30.)
Defendant correctly argues that the received-by deadline is facially nondiscriminatory and
applies equally to all voters who choose to submit absentee ballots by mail. Although mail may
be processed more expeditiously in some areas and less expeditiously in others, the Legislature
has opted to impose a received-by deadline rather than a mailed-by deadline for absentee ballots.
That determination was a policy decision and the purity of elections provision grants the
Legislature the authority to provide for a system of absentee voting. Plaintiffs essentially ask this
Court to implement a policy different from that chosen by the Legislature. Because the purity of
elections clause requires the Legislature to make policy determinations, this Court does not have
the authority to do so. Moreover, mandamus relief is inappropriate if the act sought to be
performed involves judgment or the exercise of discretion. Hanlin, 299 Mich. App. at 248.
Plaintiffs next contend that the received-by deadline violates the free speech and assembly
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clauses set forth in Const 1963, art 1, §§ 3 and 5, the right to equal protection set forth in Const
1963, art 1, § 2, and the right to vote set forth in Const 1963, art 2, § 4(1)(a). Const 1963, art 1,
§ 3, guarantees the people of Michigan “the right peaceably to assemble, to consult for the common
20
Plaintiffs fail to articulate how the received-by deadline implicates the constitutional right to
peaceably assemble.
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good, to instruct their representatives and to petition the government for redress of grievances.”
Const 1963, art 1, § 5, provides that “[e]very person may freely speak, write, express and publish
his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted
to restrain or abridge the liberty of speech or of the press.” Const 1963, art 1, § 2, states that “[n]o
person shall be denied the equal protection of the laws; nor shall any person be denied the
enjoyment of his civil or political rights or be discriminated against in the exercise thereof because
of religion, race, color or national origin.” Finally, Const 1963, art 2, § 4(1)(a), guarantees
Michigan citizens “[t]he right, once registered, to vote a secret ballot in all elections.”
Plaintiffs contend that the received-by deadline is facially unconstitutional because not
counting an absentee voter’s ballot denies the voter his or her right to vote and to free speech.
They argue that the deadline particularly burdens the speech of late-deciding voters. They also
argue that ballots mailed on the same day could be delivered to the city or township clerk on
different days, resulting in some ballots being counted and others not being counted solely because
of differing mail delivery times in violation of voters’ equal protection rights.
Plaintiffs assert that laws that severely burden protected political expression or differentiate
between individuals with respect to fundamental rights are subject to strict scrutiny. In In re
Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich. 1, 35; 740
NW2d 444 (2007), however, our Supreme Court held that “the Michigan Constitution does not
compel that every election regulation be reviewed under strict scrutiny.” The Court recognized
that in Burdick v Takushi, 504 U.S. 428; 112 S. Ct. 2059; 119 L. Ed. 2d 245 (1992), the United States
Supreme Court “rejected the notion that every election law must be evaluated under strict scrutiny
analysis.” Id. at 20-21. The Court stated that the Burdick Court “recognized that ‘to subject every
voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance
a compelling state interest . . . would tie the hands of States seeking to assure that elections are
operated equitably and efficiently.’” Id. at 21, quoting Burdick, 504 U.S. at 433. Accordingly, the
Court “adopt[ed] the ‘flexible test’ articulated in Burdick when resolving an equal protection
challenge to an election law under the Michigan Constitution.” Id. at 35. This Court has also
applied the “flexible test” in the context of a first amendment challenge to an election law. See
McDonald v Grand Traverse Co Election Comm, 255 Mich. App. 674, 681-683; 662 NW2d 804
(2003), lv den 469 Mich. 946 (2003).
A statute is presumed constitutional, and the burden of proving otherwise rests with the
party challenging the statute’s constitutionality. In re Request for Advisory Opinion, 479 Mich. at
11. “A party challenging the facial constitutionality of a statute faces an extremely rigorous
standard, and must show that no set of circumstances exists under which the act would be valid.”
Id. (quotation marks, citations, brackets, and footnotes omitted). “[S]tates have a compelling
interest in preserving the integrity of their election processes[.]” Id. at 19. “In order to protect that
compelling interest, a state may enact generally applicable and evenhanded restrictions that protect
the integrity and reliability of the electoral process[.]” Id. at 19-20 (quotation marks and citation
omitted).
In sum, while a citizen’s right to vote is fundamental, this right is not
unfettered. It competes with the state’s compelling interest in preserving the
integrity of its elections and the Legislature’s constitutional obligation to preserve
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the purity of elections and to guard against abuses of the elective franchise,
including ensuring that lawful voters not have their votes diluted. Id. at 20.
Our Supreme Court articulated the Burdick test as follows:
[T]he first step in determining whether an election law contravenes the
constitution is to determine the nature and magnitude of the claimed restriction
inflicted by the election law on the right to vote, weighed against the precise interest
identified by the state. If the burden on the right to vote is severe, then the
regulation must be “narrowly drawn” to further a compelling state interest.
However, if the restriction imposed is reasonable and nondiscriminatory, then the
law is upheld as warranted by the important regulatory interest identified by the
state. [Id. at 21-22.]
Moreover, the Court recognized that every election regulation “imposes to some degree a burden
on an elector.” Id. at 22.
In In re Request for Advisory Opinion, 479 Mich. at 36, the Court held that the requirement
that a voter provide photo identification before being provided a ballot did “not impose a severe
burden on the right to vote” and imposed “only a reasonable, nondiscriminatory restriction” that
furthered the state’s “compelling regulatory interest in preventing voter fraud,” and enforced the
purity of elections provision set forth in Const 1963, art 2, § 4. Similarly, the received-by deadline
for absentee ballots does not impose a severe restriction on the right to vote and is a reasonable,
nondiscriminatory provision that “protect[s] the integrity and reliability of the electoral process.”
See Anderson v Celebrezze, 460 U.S. 780, 788 n 9; 103 S. Ct. 1564; 75 L. Ed. 2d 547 (1983). This is
particularly true considering that a voter is not required to mail his or her absentee ballot. Rather,
the voter or an immediate family member may deliver the ballot in person to the city or township
clerk, or, if requested, the clerk must pick up the ballot or send an election assistant to pick up the
ballot. MCL 168.764a. Accordingly, the received-by deadline is not unconstitutional.
Plaintiffs next argue that the failure of local clerks to immediately process absentee-ballot
applications within 40 days of an election violates Const 1963, art 2, § 4(1)(g). Initially, we note
that the concept that a local clerk must “immediately” issue an absentee ballot is found in the
provisions of MCL 168.761(1), which provides that a clerk must immediately forward a ballot
upon receipt of the application or, if ballots are not yet available, as soon as the ballots are received.
Defendant states in her brief that she has, in fact, advised local clerks to issue ballots within 24
hours of receipt of the application. While 24 hours is not literally “immediately” upon receipt,
neither is it feasible, as defendant points out, to actually issue a ballot immediately upon receipt of
the application as the application must be verified and the ballot prepared for mailing, as well as
the fact that there may be a backlog of requests that must be processed.
Plaintiffs allege that in the March 2020 Presidential primary, some 402 townships failed to
start mailing absentee ballots by the beginning of the 40-day period. They also refer to “some
election clerks” in “prior elections” did not permit voters to cast their absentee ballots within the
40-day period. Even accepting these factual allegations as true, we fail to see what mandamus
relief this Court can provide in the instant action. The Secretary asserts that she has discharged
her legal duty to, in essence, direct local clerks to comply with the law. Given the lack of evidence
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to the contrary, we accept the Secretary at her word. If a local election clerk has ignored or
otherwise failed to comply with the Secretary’s directions and the law, it would require a
mandamus action against those clerks to force their compliance. But none of those clerks are
before us, so we cannot at this time grant relief.
Finally, plaintiffs argue that requiring absentee voters to pay the return postage to mail an
absentee ballot violates “[t]he right, once registered, to vote a secret ballot in all elections,” set
forth in Const 1963, art 2, § 4(1)(a), and the right to choose whether to submit an absentee ballot
by mail set forth in Const 1963, art 2, § 4(1)(g).
Applying the Burdick test previously discussed, requiring absentee voters to pay for return
postage does not impose a severe restriction on the right to vote. Rather, it is a reasonable,
minimal, and nondiscriminatory restriction. Notably, Const 1963, art 2, § 4(1)(g), provides voters
the right to choose to submit an absentee ballot by mail. It does not require that voters be permitted
to submit absentee ballots at no cost. Every election regulation “imposes to some degree a burden
on an elector.” In re Request for Advisory Opinion, 479 Mich. at 22. Considering the various
options for submitting an absentee ballot, the requirement that a voter pay return postage is
minimal.21 To the extent that the cost of return postage may pose a financial hardship, the voter
or an immediate family member may deliver the ballot in person, or, if requested, the city or
township clerk must pick up the ballot or send an election assistant to pick up the ballot. MCL
168.764a.
For these reasons, we conclude that plaintiffs have failed to establish their entitlement to
mandamus relief and the complaint for a writ of mandamus is denied. Defendant may tax costs.
/s/ David H. Sawyer
21
Indeed, even the voter who chooses to vote in person will likely bear the cost of transportation
to the polling place, except for those who live within walking distance.
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