959 N.W.2d 1
Mich. Ct. App.2020Background
- In 2018 Michigan voters adopted Proposal 3 (Const 1963, art 2, § 4), which expressly grants registered voters the right to vote absentee "without giving a reason" during the 40 days before an election and to apply for, receive, and submit absentee ballots "in person or by mail," and directs liberal construction in favor of voters' rights.
- Preexisting Michigan statutes (MCL 168.764a, .764b, .765) require an absent voter ballot to reach the clerk before the close of the polls on election day and instruct clerks not to count ballots received after polls close (and to file them with a time/date stamp).
- Plaintiffs sought a writ of mandamus directing the Secretary of State to instruct clerks to count absent voter ballots that were timely mailed during the 40‑day window but that arrived after 8 p.m. on election day and before the statutory canvass deadline.
- Evidence showed a nontrivial number of absentee ballots arrived after polls closed (e.g., 3,307 ballots in May 2020), producing a practical risk of disenfranchisement under the current receipt‑by‑polls‑close rule.
- Judge Gleicher (concurring in part and dissenting in part) argues the constitutional right to vote by mail necessarily includes the right to have timely‑mailed ballots counted, that the provision is self‑executing, and that statutory receipt deadlines that disenfranchise properly mailed ballots conflict with the Constitution; she would grant mandamus ordering counting of timely‑mailed ballots that arrive before the canvass.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Art 2 §4 (Proposal 3) requires counting absentee ballots that were timely mailed but arrived after polls closed | Right to "vote" by mail means the vote must be counted; the people intended mailed ballots cast during the 40‑day window to be effective | Legislature/statute sets receipt‑by‑polls‑close rule; voters assume postal risk; courts should defer to statutory deadline | Gleicher: The Constitution requires counting timely‑mailed ballots arriving before the canvass; majority rejected counting late arrivals under statute |
| Whether preexisting statutes that bar counting late‑arriving ballots conflict with the Amendment's self‑executing right to vote by mail | Statutory deadlines that discard properly mailed ballots unlawfully burden/deny the constitutional right; provision is self‑executing so legislation cannot narrow it | Statutory regulation of election timing is legitimate; deadlines are necessary and within legislative authority | Gleicher: Statutes that prevent counting properly mailed ballots conflict with Art 2 §4 and must yield; majority held statutory deadlines govern |
| Proper sources for interpreting Proposal 3: text vs. ballot summary/extrinsic materials | Plain constitutional text controls; extrinsic ballot summaries cannot override unambiguous language that grants a mail‑vote right | Ballot summary (and practical considerations) inform "common understanding" and suggest limitations on counting | Gleicher: Plain text governs; ballot summary is irrelevant when text is unambiguous; majority relied in part on summary/practicalities |
| Availability of mandamus to compel the Secretary to direct counting of timely‑mailed late arrivals | Mandamus appropriate because plaintiffs have a clear legal right and Secretary has a ministerial duty to protect constitutional voting rights | No clear ministerial duty to contravene statutes; remedies should respect legislative deadlines and canvass process | Gleicher: Writ should issue directing counting of timely‑mailed ballots arriving before canvass; majority denied relief |
Key Cases Cited
- Citizens Protecting Mich’s Const. v. Secretary of State, 503 Mich 42 (2018) (courts should ascertain amendment meaning from voters' understanding)
- Nat’l Pride at Work, Inc. v. Governor, 481 Mich 56 (2008) (apply each term’s plain meaning at ratification)
- In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1 (2007) (legislature may regulate but not destroy voting rights)
- Reynolds v. Sims, 377 US 533 (1964) (constitutional right to cast ballots and have them counted)
- Gray v. Sanders, 372 US 368 (1963) (the right to have one’s vote counted is as important as casting it)
- Wisconsin v. City of New York, 517 US 1 (1996) (recognition of fundamental right to have vote counted)
- Crawford v. Marion County Election Board, 553 US 181 (2008) (balancing burden on voting against state interests)
- Marbury v. Madison, 5 US 137 (1803) (statutes that conflict with the Constitution are unenforceable)
- Lantz v. Southfield City Clerk, 245 Mich App 621 (2001) (an absentee ballot not received before polls close cannot be counted regardless of postmark)