Michigan: Michigan Alliance for Retired Americans v. Benson

NATURE OF THE CASE
1. In 2018, a supermajority of Michigan voters approved a constitutional amendment
to enshrine the right to vote absentee in the Michigan Constitution. In elections held since, absentee
2
voting has surged, reflecting the electorate’s embrace of the Constitution’s new guarantee that
voters be permitted to exercise their most fundamental of rights in this way.
2. Even in ordinary times, it would be reasonable to expect the shift toward absentee
voting to continue in Michigan. But these are not ordinary times. Over the past few months, life in
the United States has changed rapidly as the result of a highly infectious, novel coronavirus, which
as of the date of this filing, has infected over 1.85 million and killed over 107,000 people across
the country. The pandemic has hit Michigan particularly hard, infecting Michiganders from Detroit
to the Upper Peninsula. To date, there have been over 57,500 confirmed cases of coronavirus in
Michigan, and over 5,500 deaths from the respiratory illness it causes, COVID-19.
3. Public health officials warn that the virus will be with us for a significant period of
time—into November, certainly, when there is fear that a second, more devastating wave is likely
to coincide with both flu season and the general election, and likely beyond, into at least 2021. As
a result, more and more voters are understandably turning to absentee voting to safely exercise
their right to the franchise.
4. On March 10, 2020—the same day that Michigan held its 2020 Presidential
Primary, in which nearly a million Michiganders requested an absentee ballot—Governor Whitmer
declared a state of emergency as a result of the rapid advancement of the virus. From March 23
until June 1, the State was under at least partial lockdown in an attempt to stem the virus’s spread,
and some restrictions in Michigan continue. The novel coronavirus has thus upended normal life
in Michigan, and, if the April primary election in Wisconsin is any indication, it threatens to
disenfranchise many eligible voters in the upcoming August primary election and November
general election, absent relief from this Court.

5. At issue in this case are three restrictions that threaten to deny Michiganders their
newly enshrined right to vote absentee, as well as their right to vote, their right to due process,
their right to free speech and association, and their rights under the federal Voting Rights Act. The
current public health crisis only serves to exacerbate the constitutional infirmities with these
provisions, which have become increasingly undeniable as more and more Michiganders exercise
their right to absentee vote.
6. First, Michigan law rejects any and all absentee ballots that are not delivered to
election officials by 8 p.m. on Election Day, MCL 168.764a (“ballot receipt deadline”). Even
before the current public health crisis, the Secretary acknowledged that the ballot receipt deadline
should be extended because voters were being disenfranchised as a result of “more ballots
transmitted through the mail” since the advent of no-excuse voting, but the pandemic has made
things significantly worse. The U.S. Postal Service has reduced mail service in some parts of
Michigan—including Detroit and other highly-populated areas—due to pandemic-related staffing
shortages, with no end in sight; some residents have reported waiting not days, but weeks, for their
mail. Once absentee voters timely submit their ballot in the mail, the Postal Service has sole control
over when it arrives, and the agency’s delivery delays stemming from its current operational and
budgetary difficulties will disenfranchise voters through no fault of their own. Consistent with the
emergency relief adopted by a Wisconsin federal court—and approved by the U.S. Supreme
Court—election officials should be required to count ballots postmarked by Election Day and
received for up to 14 days after the election to allow for the delivery of delayed absentee ballots.
See Republican Nat’l Comm v Democratic Nat’l Comm, __ US __, 140 S Ct 1205, __ L Ed __, at
1208 (2020).

7. Second, Michigan law requires voters who return their absentee ballots by mail to
provide their own postage. MCL 168.764a(a) (the “postage requirement”). This postage
requirement imposes an unnecessary monetary cost to voting at a time when many Michiganders
are suffering from the devastating economic impact of the novel coronavirus. Since March 15,
unemployment has grown to a staggering 1.7 million or 22 percent in Michigan, one of the highest
unemployment rates in the nation. Yet, the postage requirement forces Michigan voters to either
venture out and subject themselves to health risks in search of a stamp or pay significantly more
to order a sheet of stamps online—both of which add significant cost and delay to the voting
process, especially for those who rely on public transportation.
8. Third, while the receipt deadline and postage requirement add costs to absentee
voting, Michigan law erects a third obstacle—this one to returning a ballot. Michigan law strictly
limits who can deliver a voter’s sealed absentee ballot to their local clerk, allowing only election
and postal workers and members of a voter’s household or immediate family to handle or return
an absentee ballot on a voter’s behalf. See MCL 168.932(f); see also id. 168.764a. Any other
person who offers to assist a voter, or who provides such assistance, is guilty of a felony, id.
168.932(f), punishable by up to four years’ imprisonment and a $5,000 fine, id. 750.503
(collectively, “voter assistance ban”).
9. The voter assistance ban, which together with the ballot receipt deadline and
postage requirement constitutes the “challenged provisions,” restricts the ability of organizations
like the Alliance for Retired Americans (the “Alliance”) and the Downriver/Detroit Chapter of the
A. Philip Randolph Institute (“APRI”) to engage their core constituencies and to mobilize voters
by assisting voters in making the transition, many for the first time in the upcoming election, to
absentee voting. The ban also makesit harder for voters who unexpectedly find themselves without
a way to return an absentee ballot on Election Day.
10. There is currently no end in sight to the daily upheaval caused by the novel
coronavirus and efforts to curtail its spread. The disease will continue to threaten American lives
for a long time. Recognizing the unique and serious threats to public health, the Secretary,
Governor Whitmer, and other Michigan officials—in line with CDC guidance—have encouraged
absentee voting in Michigan’s upcoming August primary and November general elections, in part
because, as the Secretary explained, absentee voting eliminates the possibility of coronavirus
transmission while voting.
11. The challenged provisions burden Michiganders’ self-executing constitutional right
to vote absentee. In November 2018, Michigan voters overwhelmingly expressed an unequivocal
desire to expand voting access for all citizens when they passed Proposal 3 by a supermajority.
Proposal 3 enshrined in the State Constitution new self-executing voting rights, including the right
to no-excuse absentee voting during the 40 days before an election and the right to choose whether
to apply for, receive, and submit an absentee ballot in person or by mail. Const 1963, art 2, §
4(1)(g).
12. To protect the right to vote absentee, to vote, to due process, and to free speech and
association, as well as voters’ rights under Section 208 of the Voting Rights Act, in the midst of
the current pandemic, Plaintiffs therefore request that the Court issue an Order requiring
Defendants to: (1) enjoin the ballot receipt deadline and extend the deadline for when ballots must
be received to 14 days after Election Day; (2) enjoin the postage requirement and provide pre-paid
postage for all absentee ballot envelopes; and (3) enjoin the voter assistance ban and permit third
parties to assist voters in submitting their sealed absentee ballots. With the primary and general
elections fast approaching, the time to act is now, to prevent widespread disenfranchisement and
effectuate the will of the voters so that all will have a safe and meaningful opportunity to participate
in Michigan’s elections.