Michigan court rules absentee ballots won't be counted after polls close on Election Day

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The Michigan appeals court has denied a request to require that absentee ballots be counted after the polls close on Election Day, arguing that the state’s deadline, which has been in place for more than 90 years, remains intact.

The appeals court ruling was released Wednesday in a 2-1 decision. It comes after the League of Women Voters of Michigan and three voters sued in May, seeking a declaration that absentee ballots be counted as long as they are mailed on or before Election Day and are received within six days of the election.

FILE: Jordan Smellie moves absentee ballots to be counted at City Hall in Garden City, Mich.  (AP)

Judge David Sawyer wrote that the organizers of the ballot drive did not include a deadline in the initiative.

"We follow the view that courts should typically defer to the Legislature in making policy decisions," he said.

Judge Michael Riordan agreed with the ruling, while Judge Elizabeth Gleicher dissented.

"This case should be easy," she said. "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 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."

The plaintiffs plan to appeal to the U.S. Supreme Court. They pointed to voters' new constitutional rights to cast an absentee ballot without giving a reason 40 days before an election and to do it in person or by mail. They also noted fears of visiting polling places during the coronavirus pandemic.

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The suit said inherent variations in mail delivery schedules could result in one person having the ballot counted and another not, even if they send them back on the same day. It also said the deadline especially burdens undecided and late-deciding voters and said at least 11 states count ballots sent by Election Day.

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Sharon Dolente, voting rights strategist for the American Civil Liberties Union of Michigan — which assisted in suing the state — said the deadline "could lead to tens of thousands of voters being disenfranchised this year. We must ensure voters have the full timeline to submit their ballots from home by mail and give Michigan clerks and staff more time to process ballots."

The Associated Press contributed to this report.