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Davis v. Benson

Three individual plaintiffs sued Michigan’s Secretary of State in connection with Secretary Benson’s mailing of absentee ballot applications to all Michigan voters for the August primary election and November general election. The Brennan Center for Justice filed amicus briefs in support of the Secretary of State. On August 25, 2020, the Michigan Court of Claims ruled that Secretary Benson had authority to send ballot applications to all Michigan voters; the Michigan Court of Appeals affirmed on September 16, 2020. On December 28, 2020, the Michigan Supreme Court denied plaintiffs’ application for leave to appeal.

Last Updated: December 28, 2020
Published: June 16, 2020

On May 19, 2020, Michigan Secret­ary of State Jocelyn Benson announced that she would begin mail­ing absentee ballot applic­a­tions for the upcom­ing August and Novem­ber elec­tions to all registered voters in the State in order to promote the usage of absentee voting for those elec­tions in light of the present COVID-19 pandemic and the risks that poses to in-person voting for many voters.

In late May, three indi­vidual plaintiffs initi­ated separ­ate lawsuits against Secret­ary Benson to stop this, and the Michigan Court of Claims consol­id­ated the three cases. Plaintiffs argue that under Michigan stat­ute and prior cases address­ing the powers of local clerks, Secret­ary Benson does not have author­ity to affirm­at­ively send out absentee ballot applic­a­tions.

On June 16, 2020, the Bren­nan Center for Justice filed an Amicus Brief in support of the Secret­ary. We argue that Secret­ary Benson has broad author­ity under Michigan law to mail out absentee ballot applic­a­tions. This power was only further strengthened by a 2018 consti­tu­tional amend­ment—en­acted over­whelm­ingly by Michigan’s voter­s—that guar­an­tees all Michig­anders the right to vote absentee. On June 18, 2020, the court denied plaintiffs’ motions for a prelim­in­ary injunc­tion.

On August 25, 2020, the Court of Claims ruled that Secret­ary Benson had author­ity to send the absent voter ballot applic­a­tions, and dismissed plaintiffs’ consol­id­ated cases. On August 28, 2020, one plaintiff appealed this decision to the Michigan Court of Appeals. On Septem­ber 4, 2020, the Bren­nan Center for Justice filed an Amicus Brief in support of the Secret­ary in the Court of Appeals. On Septem­ber 16, 2020, the Michigan Court of Appeals affirmed the ruling of the Court of Claims, hold­ing that Secret­ary Benson had the author­ity to send the absent voter ballot applic­a­tions to all Michigan voters. On Decem­ber 28, 2020, the Michigan Supreme Court denied plaintiffs’ applic­a­tion for leave to appeal, leav­ing in place the ruling of the Court of Claims.

Expan­ded access to vote by mail is a crucial tool for States to admin­is­ter free, fair, access­ible, secure, and safe elec­tions during this pandemic. The effort to under­mine access to mail ballots risks disen­fran­chising voters who rely on mail voting to parti­cip­ate in elec­tions, partic­u­larly during the pandemic.

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