Former GOP Michigan secretaries of state sue over plan to count late arriving ballots

Two former Republican secretaries of state filed Tuesday a lawsuit in federal court, challenging Michigan's plan to count absentee ballots that are postmarked no later than the day before the election but arrive up to 14 days afterward.

The suit in the Western District of Michigan, which Democrats labeled as an attempt to suppress the vote, is the latest escalation in a legal fracas focused on a state that President Donald Trump won by 10,704 votes in 2016. The suit argues that Michigan's current policy risks placing "the resolution of the contest past dates Congress has set for" the so-called safe-harbor deadline for settling disputes of Dec. 8 and the Dec. 14 Electoral College vote.

"It will remain unknown who wins the state’s vote for at least 14 days after Election Day, and any contest about the ultimate result is unlikely to reach a conclusion before the safe-harbor deadline or even before the vote of the Electoral College," the new lawsuit says.

The 14-day period would leave 21 days before the Dec. 8 safe-harbor date for possible ballot recounts, county canvassing board and Michigan Board of State Canvassers' reviews and certifications of the votes, as well as the approval of the state's presidential electors. The safe harbor date is the deadline by which states must choose their electors in the Electoral College.

"There is a substantial risk that plaintiffs’ votes will be completely meaningless, if either Michigan loses its representation in the Electoral College or its asserted results do not qualify for the safe harbor," the suit adds.

Ruth Johnson and Terri Lynn Land — two former GOP secretaries of state — along with Republican activist Marian Sheridan are the plaintiffs. The challenge was announced by the Honest Elections Project, a group that's been involved in voting cases in multiple states ahead of the Nov. 3 election.

The suit comes as Michigan officials expect a record level of absentee voting this fall amid the COVID-19 pandemic. Johnson, now a state senator from Holly, has predicted 3 million people could vote absentee — more than double the 1.27 million people who voted absentee in the 2016 presidential election. On Tuesday, Secretary of State Jocelyn Benson's office said Michigan voters have requested 2.5 million absentee ballots, a 350% increase compared with 36 days before the 2016 election. 

With the new lawsuit, Republicans are attempting to suppress the vote in the coming election, said Lavora Barnes, chairwoman of the Michigan Democratic Party.

"They do not want every vote to count because they know the Michigan GOP is going to lose come November," Barnes said. "As former secretaries of state, it is shameful that Terri Lynn Land and Ruth Johnson are trying to prevent a full and accurate count of every vote cast in Michigan this election."

Johnson served as secretary of state from 2011 through 2018. Land was secretary of state for the eight years before Johnson.

The lawsuit potentially stands a better chance of success in the Western District of Michigan, where all five judges were appointed by Republican presidents. Lansing is also located in the Western District. The vast majority of Eastern District of Michigan judges were appointed by Democratic presidents. 

Michigan Court of Claims Judge Cynthia Stephens ruled Sept. 18 that Michigan clerks must accept late ballots so long as they are postmarked no later than Nov. 2 and received before the deadline for certifying election results, 14 days after the election.

"Plaintiffs presented affidavit evidence that many voters were in fact deprived of having their absent voter ballot tallied in the August primary," wrote Stephens, noting more than 6,400 valid ballots were rejected because they were received after the Aug. 4 primary.

Michigan Attorney General Dana Nessel, a Democrat, decided not to appeal the decision. Benson, also a Democrat, said the ruling "recognizes many of the unique challenges that the pandemic has created for all citizens and will reduce the potential for voter disenfranchisement due to mail delays."

"No eligible voter should be disenfranchised through no fault of their own for exercising their right to vote by mail," Benson added.

But the new lawsuit says it's up to the Michigan Legislature to set state election law, and the Legislature has enacted an 8 p.m. deadline on Election Day for mail-in ballots to arrive.

"This law is the constitutionally prescribed mandate for Michigan," the lawsuit says.

It adds that the late-arriving ballots would be "invalidly cast in violation of federal and state law." The policy "substantially increases the pool of total votes cast and dilutes the weight of plaintiffs' votes," the suit says.

The suit is "clearly politically motivated with the goal of confusing and disenfranchising voters," said Jake Rollow, spokesman for the Michigan Secretary of State's office.

"Our department will continue to encourage voters to request and return their absentee ballots as soon as possible, and to consider hand-delivering them to their clerk’s office o local ballot drop box," Rollow said.

The Republican-controlled Legislature, the Republican National Committee and the Michigan Republican Party are also attempting to fight the Court of Claims ruling in state court.

The RNC, led by Chairwoman Ronna McDaniel, and the Michigan Republican Party filed suit Thursday in the Court of Claims asking Stephens to declare the laws requiring on-time ballots and prohibiting ballot collection constitutional. 

Staff Writer Beth LeBlanc contributed.

cmauger@detroitnews.com