LANSING — A split Michigan Supreme Court on Friday declined to hear a case that sought to extend the state’s deadline to receive absentee ballots — a decision that left one dissenting justice “baffled and troubled” ahead of the November presidential election in the swing state.
In a 4-3 order, justices said they were not persuaded that the questions presented should be reviewed.
The decision left intact a recent appeals court decision that found that state law requires absentee ballots to be received by the time polls close on Election Day to be counted — unless the Republican-led Legislature changes the requirement. The League of Women Voters of Michigan and three voters sued in May, seeking a declaration that ballots be counted as long as they are mailed on or before Election Day.
The plaintiffs had pointed to voters’ new constitutional rights to cast an absentee ballot without giving a reason 40 days before an election and to do so in person or by mail. They also had noted people’s fears of visiting polling places during the coronavirus pandemic.
Four Republican-nominated judges voted to not take the appeal. Three Democratic nominees dissented.
“Given the importance that absentee voting will have on the upcoming general election, I am baffled and troubled by the majority’s vote to deny leave to appeal here,” Justice Richard Bernstein wrote. “The very split in the Court of Appeals panel below, which resulted in no less than three separate opinions being authored, suggests that this is not such a clear-cut case that a simple denial is obviously appropriate.”
Bernstein, in a dissent joined by Chief Justice Bridget McCormack and Justice Megan Cavanagh, noted that the 2016 presidential race in Michigan was decided by fewer than 11,000 votes. Donald Trump narrowly defeated Hillary Clinton.
The plaintiffs estimated that between 41,000 and 64,000 absentee ballots will not be counted in November, said Bernstein, who argued that oral arguments should be scheduled.
Michigan’s surge in absentee voting began before the pandemic. As of Tuesday, about 600,000 more absentee ballots had been cast for next week’s primary than at the same point in 2016. Citing potential postal delays, Secretary of State Jocelyn Benson urged voters to return their ballots in person to the clerk’s office or local drop boxes to ensure that they are counted.
A similar suit challenging the absentee ballot deadline — funded by Priorities USA, a powerful super PAC in Democratic politics — is pending in the state Court of Claims.