In November 2018, voters amended the Michigan Constitution of 1968 by passing Proposal 3 and secured the right to vote an absentee ballot without a reason. Before the passage of the constitutional amendment, voters could only acquire an absentee ballot if they were over 60 years old, unable to vote without assistance, out of town on Election Day, in jail awaiting trial (but not convicted), unable to attend polls for religious reasons, or working as an election inspector. Now any eligible voter can obtain an absentee ballot for any reason. As the world endures the COVID-19 crisis through the 2020 election, this method may be widely used by voters to avoid infection.
Here is the procedure for obtaining an absentee voter ballot in Michigan:
- FOR ALREADY REGISTERED VOTERS BEFORE ELECTION DAY: Starting 75 days before a primary, special primary or election, a voter can apply for an absentee voter ballot at the clerk’s office of the township or city where the voter is registered. If the voter appeared in person to apply, the clerk may issue an absentee ballot to the voter in person anytime before 4 p.m. on the day before the primary, special primary or election. If the voter mailed in the application, the clerk may issue an absentee ballot if the application is RECEIVED before 5 p.m. on the Friday before the primary, special primary or election (NOT the date it was postmarked). MCL 168.759a(1) and (2).
- FOR ALREADY REGISTERED VOTERS ON ELECTION DAY: If the already-registered voter missed the deadline the day before, he or she may still obtain an absentee ballot from the clerk of the township or city on Election Day anytime prior to 4 p.m. by filing an emergency absent voter application stating that he or she “have become physically disabled or shall be absent from the city or township because of sickness or death in the family which has occurred at a time which has made it impossible to apply for absent voter ballots by the statutory deadline.” A voter who intentionally makes a false statement in an emergency absent voter application, or aids and abets any person to make a false statement, is guilty of a felony punishable by a fine up to $1,000.00 or up to 5 years in state prison, or both. MCL 168.759b.
- FOR UNREGISTERED VOTERS: An eligible voter who has not registered yet may apply for and receive an absentee ballot before on Election Day if he or she applies in person at the clerk’s office before 8 p.m., and is an individual who is “not a registered elector, or an individual who is not registered to vote in the city or township in which he or she is registering to vote, and who registers to vote on election day in person with the clerk of the city or township in which the individual resides.” MCL 168.761(3). Both the registration and the absentee ballot application are handled simultaneously, but the absentee ballot must still be completed and RECEIVED by the clerk before 8 p.m. on Election Day.
The city or township clerk uses the qualified voter file or the voter registration card to compare signatures against the absent voter ballot application for authenticating the voter’s identity. MCL 168.761(1). If the signatures agree, the clerk will mail an absentee ballot to the voter by first class mail. If the voter appears in person to make an application, then the city or township clerk will require the voter to present identification (e.g. driver’s license) before receiving a ballot. MCL 168.761(6).
Any ballots received by the clerk before Election Day are kept safe in the clerk’s office and not opened until delivered after 8 p.m. on Election Day to the board of election inspectors. MCL 168.765(1). The absentee ballot must be RECEIVED by the clerk by 8 p.m. on Election Day to be counted (it doesn’t matter if it was POSTMARKED before that date). Unless the voter intends to deliver the vote in person, he or she should cast an absentee ballot and mail it as soon as possible. During these difficult times as Michigan residents live through the COVID-19 pandemic, voters should keep in mind that first-class mail is working slower than normal and it can take postage up to THREE TIMES longer to reach its destination. If the absentee ballot is not received timely, then it will be disregarded.
If the voter loses the absentee ballot or sends it to the clerk early but wishes to change his vote and cast a new absentee ballot before the deadline, then he may do so under the following procedures:
- Not later than 2 p.m. on the Saturday immediately before an election, a voter may submit a signed, written statement to his or her city or township clerk requesting that the clerk spoil the elector’s absent voter ballot AND provide or mail a new absent voter ballot to the voter. MCL 168.765b(1).
- A voter who has returned an absent voter ballot may, before 4 p.m. on the day before an election except Sunday or a legal holiday, appear in person at his or her city or township clerk’s office to spoil his or her absent voter ballot by submitting a signed, written statement to the city or township clerk indicating that the voter wishes to have his or her absent voter ballot spoiled AND vote a new absent voter ballot in the clerk’s office. MCL 168.765b(3).
- Not later than 2 p.m. on the Saturday immediately before an election, a voter who has lost his or her absent voter ballot or not yet received his or her absent voter ballot in the mail may submit a signed, written statement to his or her city or township clerk requesting that the clerk spoil the voter’s absent voter ballot AND provide or mail a new absent voter ballot to the voter. MCL 168.765b(5).
- A voter who has lost his or her absent voter ballot or not yet received his or her absent voter ballot in the mail may, before 4 p.m. on the day before an election except Sunday or a legal holiday, appear in person at his or her city or township clerk’s office and requesting that the clerk spoil his or her absent voter ballot by submitting a signed, written statement to the city or township clerk indicating that the elector wishes to have his or her absent voter ballot spoiled AND vote a new absent voter ballot in the clerk’s office. MCL 168.765b(7).
Since absentee voter applications and ballots are not filled out in the presence of election officials, there is heightened scrutiny around any irregularities and election officials are required to report suspected illegal activity to law enforcement. Mishandling or abusing absentee ballots contrary to law can lead to the following criminal penalties:
- A person who makes a false statement in an absent voter ballot application is guilty of a misdemeanor punishable by a fine up to $500.00 or up to 90 days in jail, or both. MCL 168.759(8).
- A person who is not authorized under the Election Law and who both distributes absent voter ballot applications to absent voters and returns those absent voter ballot applications to a clerk or assistant of the clerk is guilty of a misdemeanor punishable by a fine up to $500.00 or up to 90 days in jail, or both. MCL 168.759(8).
- An absent voter who knowingly makes a false statement on the absent voter ballot return envelope is guilty of a misdemeanor punishable by a fine up to $500.00 or up to 90 days in jail, or both. MCL 168.761(5).
- A person who assists an absent voter and who knowingly makes a false statement on the absent voter ballot return envelope is guilty of a felony punishable by a fine up to $1,000.00 or up to 5 years in state prison, or both. MCL 168.761(5).
- A person who forges a signature on an absent voter ballot application is guilty of a felony punishable by a fine up to $1,000.00 or up to 5 years in state prison, or both. MCL 168.759(8).
- A person who votes at an election both in person and by means of an absent voter ballot or a person who attempts to vote both in person and by means of an absent voter ballot is guilty of a felony punishable by a fine up to $1,000.00 or up to 5 years in state prison, or both. MCL 168.769(4).
On May 19, 2020, Michigan Secretary of State Jocelyn Benson announced that the Bureau of Elections would mail ALL registered voters an absentee ballot application ahead of the August and November 2020 elections. This decision prompted President Donald Trump to issue a series of tweets accusing the Secretary of State of rigging the election and that there would be federal funds cut off from the state unless these actions were reversed. This has boiled down to a Democrat-Republican partisan fight, with Republicans asserting that the Bureau of Elections does not have the legal authority to mail everyone an absentee ballot application. However, a review of the Michigan Election Law, specifically MCL 168.759, reveals that there is nothing in the statutory language that requires a “request” be made to the Bureau of Elections prior to sending out the applications. While an application must be filed and processed before an absentee voter ballot can be issued, there is no requirement that a “request” must be filed and processed before an absentee voter application can be issued. Despite the President’s threats based on false information, the Michigan Secretary of State has not committed any illegal acts and applications received by registered voters can be filled out and mailed back to receive a valid absentee voter ballot.
If you have any questions about election law or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
