DETROIT — The Michigan Supreme Court said Tuesday it won't take up a case challenging Secretary of State Jocelyn Benson's authority to mail unsolicited absentee ballot applications.
Michigan courts have consistently found that Benson acted legally when she sent applications to every registered voter in Michigan to request an absentee ballot ahead of the August and November elections.
The state Supreme Court justices denied the motion to intervene as moot in a 6-1 order with Justice David F. Viviano dissenting.
"We are not persuaded that the questions presented should be reviewed by this Court," the Dec. 28 Supreme Court order reads.
Benson announced last May that all registered voters in the state would receive an application to vote absentee in the August primary and November general elections. In 2018, Michigan voters overwhelmingly approved a constitutional amendment granting voters the right to vote absentee for any reason. Benson said the decision to mail absentee ballot applications would help voters take advantage of their new constitutional right, especially during a pandemic.
The move was met with legal challenges arguing Benson lacked the legal authority to mail unsolicited absentee ballot applications. A lawsuit filed by Robert Davis, a Democrat and serial litigant who lives in Highland Park, argued that if Benson acted illegally, it would open the door to allow candidates to challenge the legality of the election results.
Rick Hasen, a law professor at the University of California, Irvine and a national expert in election law, told the Detroit Free Press at the time that it was improbable any court’s decision on Benson's authority to mail absentee ballots would open the door to legal challenges to election results.
“I can’t foresee a situation where a court would throw out the results of an election simply because someone who didn’t have the authority reached out and gave people the ability to vote by mail,” Hasen said.
Since Davis filed his complaint in late May, Michigan's courts have determined Benson acted legally when she mailed out unsolicited absentee ballot applications.
Michigan Court of Claims Judge Cynthia Diane Stephens ruled that Benson had the authority to mail voters absentee ballot applications in an opinion issued Aug. 25. Davis appealed the ruling to the Michigan Court of Appeals which upheld Stephens' opinion in a 2-1 decision Sep. 16.
"Certainly, the Secretary could have declined to provide such applications and relied on voters’ ability to learn of the right to vote absentee, and how to exercise it, on their own. But undoubtedly there were voters who would have been unaware of their new constitutional right,” wrote Judges James Robert Redford and Jonathan Tukel in their majority opinion.
The day after the Court of Appeals issued its order, Davis asked the Supreme Court to take up the case.
Michigan voters cast a record 3.3 million absentee ballots in the November general election, the first presidential election in which voters had the right to vote absentee for any reason.
