Michigan's high court won't hear appeal on challenge to late ballot policy

The Michigan Supreme Court won't hear an appeal from a group challenging Michigan's law that disqualifies absentee ballots received after the time polls close on Election Day. 

The Supreme Court on Friday ruled 4-3 to deny hearing the appeal, with Democratic-nominated Chief Justice Bridget McCormack and Justice Megan Cavanagh joining Justice Richard Bernstein in a dissent. 

Republican-nominated justices Stephen Markman, David Viviano, Brian Zahra and Beth Clement declined to hear the appeal and left in place a Michigan Court of Appeals ruling rejecting the lawsuit's contentions.

The League of Women Voters had argued ballots should be counted if postmarked before Election Day since variations in mail delivery schedules could be to blame for a ballot arriving late. 

The deadline, the league argued, was especially burdensome to late-deciding voters. About 1.75% of ballots were not counted in the recent May local elections because they came in too late.

The Michigan Court of Appeals denied the arguments in a 2-1 decision, deferring to the Legislature to make the decision regarding which ballots could be counted. 

"We follow the view that courts should typically defer to the Legislature in making policy decisions,” Judge David Sawyer wrote for the majority, adding that organizers of the ballot drive did not include a deadline in the initiative.

In his dissent in the Supreme Court's 4-3 decision, Bernstein noted that the number of people voting absentee has increased significantly ahead of the August primary and is expected increase even more ahead of the November general election."

Given the expected increase and about a two-tenths of a percentage point difference between the two presidential candidates in 2016, "I am baffled and troubled by the majority's vote to deny leave to appeal here," Berstein said,

"Even if I were convinced that the Court of Appeals majority had correctly decided this case, it seems abundantly clear to me that this case is at least significant enough to demand full consideration by this court via briefing and oral argument," he said.

The League of Women Voters of Michigan said Friday it was disappointed in the high court's decision.

“The League is extremely disappointed in the Supreme Court’s decision not to hear our case, which would have allowed absentee votes to count if they were postmarked by Election Day,” league President Christina Schlitt said in a statement. "Our fight is not over. The League will continue to push to remove barriers to voting, to help ensure voting is accessible and convenient and every registered voter in Michigan can participate fully in our democracy."

eleblanc@detroitnews.com

Associated Press contributed