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With the 2020 General Election only days away, it is important to have an up-to-date understanding of all laws, court cases, and regulations that may impact your polling place. This E-letter will provide an overview of the latest developments that could potentially impact your operations, and inform you of the current state of the law so you are ready to face the potential challenges looming in this one-of-a-kind election.

Update on Absentee Voter Provisions

 Public Act 177 of 2020 (Senate Bill 757)

Governor Whitmer signed Senate Bill 757 in early October, addressing absentee voting. The most cited provision relates to early processing of absentee ballots. For the November 3, 2020 election only, clerks with populations of at least 25,000 have the option to process absentee ballots the day before election day. MCL 168.765(6). The new law also set standards for absent voter ballot secrecy envelope containers and absent voter ballot drop boxes. MCL 168.24j and k. Those standards include allowing use of only approved containers and providing how the security of those containers must be maintained and monitored. Another provision of the new law requires notification to absent voters by mail, telephone, or email if a determination is made that the signatures do not match between their ballot application/ballot return envelope and those on record on the master card or Qualified Voter File. MCL 168.761(2); 168.765a(6). Finally, it adjusted deadlines for ballot spoiling under Section 765b:

• In-person: an elector who has returned an absentee ballot may, before 10 a.m. on the day before an election (changed from 4 p.m.) spoil their absentee ballot by submitting a signed, written statement and vote a new absentee ballot in the clerk’s office.
• By mail: An elector who has lost or not yet received an absentee ballot may, by 5 p.m. on the Friday before the election (changed from 2 p.m. on the Saturday before) spoil his or her absentee ballot and request a new ballot by mail.

League of Women Voters of Mich v Secretary of State, Michigan Court of Appeals (July 14, 2020)

The League of Women Voters sought a writ of mandamus from a court that would order the Secretary of State to adopt procedures that would accept ballots for six days after Election Day if such ballots were postmarked by Election Day. The League argued that the statute requiring ballots to be received by 8:00 p.m. on Election Day conflicted with the right to vote by absentee ballot under the Michigan Constitution. The Secretary of State, defendant in the case, conceded in the case that she agreed with the League’s argument. The Court of Appeals nonetheless denied the request for Mandamus, finding that the Secretary of State’s concession was insufficient to invalidate state law. The Court also looked at the language of the amendment and found that it did not create the expectation that one would have until Election Day to postmark an absentee ballot. Given the Court denied any requirement to adopt a policy, any absentee ballot must be received by 8:00 p.m. on Election Day.

Michigan Alliance for Retired Americans v Secretary of State, Michigan Court of Appeals (October 16, 2020)

In this case, a lower court ruled that election officials must allow for an extra two weeks for ballots postmarked by Election Day to arrive at the polling place and that clerks must provide voter assistance beyond the statutory requirement of 5:00 p.m. on the Friday before the election. The Court of Appeals reversed that ruling, maintaining the requirement that ballots must be received by 8:00 p.m. on Election Day and 5:00 p.m. on the Friday before the election was the statutory cut-off for voter assistance. The Court of Appeals looked at whether either were a violation of the Constitutional right to vote during the 40 days before an election and found that election officials had taken considerable steps to alleviate COVID-19 effects, including more than 700 ballot drop boxes and satellite election centers to register voters, distribute ballots, and receive completed ballots. Further, the legislature empowered clerks by allowing early processing of absentee ballots. Clerks also maintain the discretion to provide voter assistance after the deadline and can provide curbside voting.  The Court also upheld the ban on third-party  ballot handling under MCL 168.932(f) (with some exceptions), finding it a reasonable and nondiscrimatory effort to protect against voter fraud.

COVID-19 Requirements and Procedures

COVID-19 – Order of the Michigan Department of Health and Human Services (October 9, 2020)

After the Governor’s executive orders related to COVID-19 were found unconstitutional, the Michigan Department of Health and Human Services issued an order (the “Order”) that addressed several topics related to COVID-19 safety, including gathering limits, face covering mandates, and social distancing requirements. The Order specifically exempts voting and election-related activities from restrictions on indoor gathering limits. Further, it explicitly exempts those at polling places from facemask requirements for purposes of voting in an election (though recommends strongly encouraging the use of facemasks). This exemption does not apply to election workers, however. Therefore, in order to comply with the Order, polling places should make every effort to:

• Prevent employees from entering the polling location who are subject to CDC recommendations to isolate or quarantine, have been instructed to remain home by a health professional, or are awaiting a COVID-19 test or the results of a COVID-19 test after having symptoms of COVID-19. To return, the following conditions must be met:
  • 24 hours have passed since the resolution of fever without fever-reducing medications; and
  • 10 days have passed since their symptoms first appeared or since they were administered a COVID-19 test that yielded the positive result, if applicable; and
  • Other symptoms have improved.
• Self-screen protocol for employees or contractors, including a questionnaire regarding COVID-19 symptoms and possible exposure.
• Require employees, poll challengers and poll watchers to wear facemasks while indoor at the polling place;
• Provide masks for all in attendance. Voters cannot be required to wear masks but can be encouraged, particularly through posted signs.
• Maintain six feet of distance from all in attendance where possible, including as it relates to voting booths, voter processing stations, tabulators, and voting lines.

Open Carry of Firearms in Polling Places

Michigan Secretary of State Directive Re: Open Carry of Firearms at Polling Places (October 16, 2020)

The Secretary of State issued a Directive that prohibits the open carry of a firearm in a polling place, in any hallway used by voters to enter or exit, or within 100 feet of any entrance to a building in which a polling place is located. The Directive also states that law enforcement should be contacted if anyone outside of 100 feet acts in a way that intimidates, hinders, or impedes voters on the way to the polls. Notice of the Directive is required to be posted in the polling place and at the building entrance. The Directive does not apply to concealed carry of a firearm, only stating that concealed carry is prohibited in any building that already prohibits concealed carry of a firearm.

After the Directive issued, multiple parties (including Michigan Open Carry, Michigan Gun Owners, and Michigan Coalition for Responsible Gun Owners) filed suit in the Michigan Court of Claims seeking to enjoin enforcement of the Directive. The parties argued that the Secretary of State did not use the proper process under the law to create the Directive. On October 27, the Michigan Court of Claims issued a preliminary injunction enjoining enforcement of the Directive, agreeing it was not issued as required by law.

What does this mean for your polling place? Currently, the Directive has been enjoined from being a basis to prevent open carry. Even so, election inspectors remain empowered to address voter intimidation. Election officials are charged with the responsibility to determine whether voter intimidation is occurring – which could involve an individual openly carrying a firearm – and to consult with the Bureau of Elections and law enforcement where appropriate.

To Finish on a Lighter Note: Ballot Selfies

Crookston v Benson Settlement Agreement, Western District of Michigan (2019)

The Secretary of State was sued last year for prohibiting the taking of “ballot selfies.” A provision of the Election Law prohibits a voter from showing all or part of his or her ballot to any person after the ballot has been marked. MCL 168.738(2). The parties reached a settlement agreement in which the Secretary of State agreed that displaying a photograph of one’s own marked ballot outside of the 100-foot buffer zone around a polling place does not violate the law. Further, pictures of the ballot can be taken in the voting booth. Holding up the ballot for a selfie or photo in the polling location, or any other photographs where people are voting, are still prohibited for the privacy and security of neighboring voters.

By: Steven L. Koski

Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

Copyright © 2020 Fahey Schultz Burzych Rhodes PLC