Absent-voter ballot stubs

Absent-voter ballots; Missing or mismatched ballot stubs; MCL 168.768; In-person ballots; MCL 168.797a(2); Statutory interpretation; O’Connell v Director of Elections; Negative-implication canon; Daher v Prime Healthcare Servs-Garden City, LLC; Secretary of State guidance; Challenged ballots; MCL 168.21; MCL 168.31; Permanent injunction; Irreparable injury; Youmans v Bloomfield Twp; Hopkins Twp v State Boundary Comm’

The court held that MCL 168.768 does not prohibit tabulating absent-voter ballots returned with missing or mismatched ballot stubs, and that the Court of Claims abused its discretion by imposing a mandatory statewide cure procedure. Plaintiffs challenged defendants’ statewide guidance allowing those ballots to be processed as challenged ballots. The Court of Claims declared the guidance unlawful and ordered defendants to implement plaintiffs’ 10-step cure procedure. On appeal, the court first held that MCL 168.768 was ambiguous as applied to missing or mismatched stubs because it says what to do “[i]f the ballot numbers match,” but “does not state what must happen when the numbers do not match.” Reading the statute with MCL 168.797a(2), the court reasoned that when the Legislature intended a stub mismatch to require rejection of an in-person ballot, “it said so expressly,” but it did not include comparable rejection language for absent-voter ballots. The court rejected plaintiffs’ negative-implication argument because that canon is “not a license to add a prohibition” omitted from one provision while included in a related one. The court also held that the Secretary’s challenged-ballot guidance did not conflict with the statute because MCL 168.768 requires a comparison but “did not prescribe rejection or any other consequence for a discrepancy,” and the Secretary may issue instructions consistent with election law. Finally, the court held that the permanent injunction had to be vacated because plaintiffs had not requested permanent injunctive relief until their proposed order, defendants lacked a meaningful opportunity to address the equitable standards, and the Court of Claims did not find a “real and imminent danger of irreparable injury.” The court emphasized that “the mere apprehension of future injury” is insufficient and that the order was not adequately tailored to the record. The court reversed the Court of Claims order and judgment, vacated the permanent injunction, and remanded for entry of judgment in defendants’ favor.