Court of Appeals: Absentee ballot mailers were lawfully distributed

Published 4:23 pm Wednesday, September 16, 2020

LANSING– The Michigan Court of Appeals today affirmed a lower court’s ruling that Secretary of State Jocelyn Benson was lawfully permitted to send out unsolicited absentee voter ballot applications to registered voters, Michigan Attorney General Dana Nessel announced.

In a 2-1 split decision, the appellate court ruled that state law and the Michigan Constitution allow Benson to distribute unsolicited applications for absentee ballots, as the Michigan Court of Claims determined in its Aug. 25 opinion in the case, Davis v. Secretary of State.

“As chief elections officer, with constitutional authority to ‘perform duties prescribed by law,’ the Secretary of State had the inherent authority to take measures to ensure that voters were able to avail themselves of the constitutional rights established by Proposal 3 regarding absentee voting,” Judges James Robert Redford and Jonathan Tukel wrote in the majority opinion.

Michigan voters approved Proposal 3 in 2018 to allow absentee voting without having to provide a specific reason.

The judges wrote that Benson acted within the directives outlined for her office in the constitution and state law, and by furnishing the applications, she furthered the purposes of informing qualified registered voters of their right to vote by absentee ballot – if they so choose.

“Certainly, the Secretary could have declined to provide such applications and relied on voters’ ability to learn of the right to vote absentee, and how to exercise it, on their own. But undoubtedly there were voters who would have been unaware of their new constitutional right to vote absentee and who would not have known, absent conducting research, how to exercise that right,” the judges wrote. “Under the circumstances, the decision which the Secretary of State made, sending an application to each registered voter, which the voter was then free to fill out and return, or not, comported with the constitutional directive to liberally construe (the Constitution) to effectuate its purposes and therefore was not an abuse of discretion on the part of the Secretary.”

In his dissenting opinion, Judge Patrick Meter argued that the Secretary of State was not expressly granted the authority to send unsolicited absentee voter ballot applications by the Legislature under state law.

“We are pleased with the ruling rendered by the Court of Appeals,” Attorney General Nessel said. “Michigan voters overwhelmingly supported Proposal 3 in 2018 and the actions taken by Secretary Benson make it easier for all of the state’s registered voters to understand their rights when choosing to participate in the electoral process. We are prepared to continue defending the Secretary’s lawful and important actions if the plaintiff continues to challenge them in court.”

“I am pleased that the court affirmed what we have known all along, that as the state’s chief election officer I have the authority and responsibility to ensure citizens know how to execute their right to vote,” Secretary Benson said.