The Michigan Court of Appeals on Friday said that absentee ballots must arrive by Election Day to be counted, blocking a 14-day extension that had been ordered by a lower court.
The Republican-appointed appeals court judges said changes rest with the Legislature, not the judiciary, in a 3-0 opinion that was met with criticism by Democratic officials in the battleground state which is being closely watched this year after President Trump won the state by a slim margin in the 2016 presidential election.
Absentee ballot extensions in two other Midwestern states including Wisconsin and Indiana have also been overturned by higher courts ahead of next month’s election as parties scramble to gain an edge.
Secretary of State Jocelyn Benson noted a marked increase in requests for absentee ballots last week by roughly 2.7 million voters total, after a change in law made them available to any voter in an election that has been upended by the coronavirus pandemic and pushed many voters toward casting ballots by mail.
Court of Claims Judge Cynthia Stephens had previously ordered that any ballots postmarked by Nov. 2 could be counted if they arrived within two weeks after the Nov. 3 election noting that there was “unrefuted evidence” about mail delivery problems citing more than 6,400 late-arriving ballots that were not counted in the August primary.
The appeals court, however, said the pandemic and widely criticized mail delivery challenges that became central to congressional debate over the summer “are not attributable to the state.”
“Although those factors may complicate plaintiffs’ voting process, they do not automatically amount to a loss of the right to vote absentee,” the court said. In its decision, the court underlined voters’ access to special boxes to deposit completed ballots.
The court also reversed part of Stephens’ earlier decision which would permit a non-family member to deliver a voter’s ballot with consent in the final days before the election.
“The constitution is not suspended or transformed even in times of a pandemic, and judges do not somehow become authorized in a pandemic to rewrite statutes or to displace the decisions made by the policymaking branches of government,” Judge Mark Boonstra said of the allowance in a separate opinion, according to the Associated Press.
Boonstra along with two other appeals court judges who heard the case — Michael Gadola and Thomas Cameron — were appointees of former Michigan Gov. Rick Snyder (R) when he held that post.
Benson and Michigan Attorney General Dana Nessel, both Democrats, had declined to appeal Stephens’ rulings, leaving it to the Republican-controlled Legislature to offer intervening opinions.
“Happy to see this unanimous ruling to uphold the integrity of our elections process and reject judicial overreach,” Michigan Senate Majority Leader Mike Shirkey said in a tweet lauding the decision on Friday.
The Michigan Democratic Party called the reversal an unfair punishment for postal delays.
“Voters should not be punished for delays in the U.S. Postal Service or for unexpected emergencies that could make it a challenge for them to get to the polls on Election Day,” the party said per AP.
