Elections During a Pandemic

Under current Michigan law, as interpreted by the courts, voters must submit a request to receive an absentee ballot in one of three ways: (1) by written request, (2) by filing an absent voter ballot application, or (3) by mailing a federal postcard application. Under two Michigan cases decided in 2007 and 2008, county clerks have no authority to automatically mail ballots to registered voters. The Governor, however, under the Emergency Management Act, has the authority to “prescrib[e] the procedures for conduct of state business, when strict compliance . . . would prevent, hinder, or delay necessary action in coping with [a] disaster or emergency.”

The Governor’s Executive Order 2020-27 required that the May 5 elections be “conducted to the greatest extent possible by absent voter ballots issued and submitted without in-person interaction.” To accomplish the purpose of the Executive Order, the order authorized the Secretary of State to help local clerks with “mailing of absent voter ballot applications . . . to each registered voter within any jurisdiction conducting a May 5, 2020 election.” The Secretary of State addressed the August elections the same way and announced plans to mail unsolicited absent voter ballots to each registered voter for the November elections. The Secretary of State is the Chief Election Officer in Michigan, but her authority is being legally challenged regarding mailing ballots without voter requests.

Note that Proposal 3, adopted by Michigan voters in 2018, allowed significant changes to Michigan election law, including making absentee voting more accessible but without expressly providing for mailing unsolicited ballots to registered voters. If the courts do not decide that there is at least an implicit authorization to send ballots to registered voters without a voter requesting a ballot, it may take a constitutional amendment to fully effectuate this change.