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Election Day 2020: Changes in Michigan Election Law

Voting by MailIn the months leading up to this election, Michigan has seen a number of changes to the election process promulgated by the Legislature, Governor, courts, Secretary of State, and even the Michigan Department of Health and Human Services (MDHHS). The good news – many of the changes will not be noticeable to most voters.

Foster Swift’s election law team has put together a short summary of the most important changes for voters and election administrators to be aware:

  • Ballot Pre-processing

In 2018, Michigan voters approved Proposal 3 which permits no-reason absentee voting. This, combined with COVID-19, has led to an unprecedented number of absentee ballots being cast this election. Election officials were concerned this could overwhelm the tabulation process and lead to slower, less efficient counting.

To alleviate those concerns, election officials in municipalities with a population of at least 25,000 are now permitted to pre-process mail-in ballots the day before Election Day. This includes removing the ballot from the return envelope – but not the secrecy envelope – and verifying the ballot number and signature. The ballots will not be counted until Election Day.

  • Ballot Drop Boxes

Ballot drop boxes are boxes where voters can safely deposit their ballots rather than mailing the ballot or dropping it off at the local clerk’s office. Drop boxes will now be required to be tamper-proof and monitored by security cameras if they are not in a location that is continuously staffed. In addition, outdoor drop boxes must be bolted to the ground or a stationary object in a well-lit area.

  • Cure Period

If an absentee ballot is rejected for whatever reason, including because of a missing or unmatched signature, the clerk is required to contact the voter and give them an opportunity to cure the defect within 48 hours. Previously, these ballots were simply rejected and went uncounted.

  • Spoiling the Ballot

Voters who cast an absentee vote but wish to change their selection before Election Day may do so by “spoiling” their ballot. Effectively, the voter can cancel their submitted absentee ballot and cast a replacement absentee ballot or in-person ballot on Election Day. Previously, voters had until 4:00 P.M. to spoil their ballot. That deadline has been moved up to 10:00 A.M on November 2nd, the day before the election.

  • Military Ballots

Active-duty military and their spouses may cast their ballots electronically. This only applies if they are stationed overseas on Election Day.

  • Ballot Harvesting

Ballot harvesting, or third-party ballot collection, remains illegal in Michigan. The practice of individuals collecting and submitting ballots from persons outside their immediate family has long been outlawed; however, just last month Judge Cynthia Stephens issued an injunction permitting the practice. Judge Stephens cited mail delays and COVID-19 as a reason to contravene the plain language of the law. The Michigan Appeals Court overturned the decision and reinstated the ban on third-party ballot collection.

  • Absentee Ballot Return Deadline

In the same case, Judge Stephens issued a ruling requiring election officials to accept ballots postmarked by November 2 so long as they arrived within 14 days after November 3. The Court of Appeals also overturned this decision and reinstated the requirement that absentee ballots be received by Election Day to count.

  • Guns at Polling Places

Secretary of State Jocelyn Benson issued a direction to ban the open carry of guns at polling places. The ban applies within 100 feet of a polling place, clerk’s office, or an absentee ballot counting site. This direction is subject to change – it is being challenged in the courts by multiple organizations and some sheriffs have stated they will not seek to enforce the ban.

  • Masks at Polling Places

Finally, it would not be 2020 if we did not mention masks. While masks are generally required when indoors or within six feet of persons not from an individual’s household, MDHHS’s most recent emergency order expressly exempts polling places from the mask requirement. In other words, voters are not required to be wearing a mask to cast their vote.

For questions related to this communication and for questions or assistance related to election law issues in general, please contact your Foster Swift attorney or a member of Foster Swift’s election & campaign finance law team:

Categories: Alerts and Updates, Compliance, Did you Know?

Photo of Cody A. Mott
Associate

Cody is a member of the firm’s Business and Tax Practice Group and works in the Grand Rapids and Lansing offices. He works with clients on entity planning and formation, drafts commercial transaction documents, and provides counsel to clients on securities and tax issues. Cody is also a part of the firm’s Election and Campaign Finance Law Group. He provides advice to candidates, their committees, and public bodies on Michigan campaign finance and election law issues.

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