By Jan Worth-Nelson and Tom Travis
Concerns about processing of absentee ballots have led to a complaint by The American Civil Liberties Union (ACLU) of Michigan against the Flint City Clerk’s office seeking to account for absentee ballot requests submitted to the clerk and getting the ballots out to voters in time for the upcoming Aug. 4 and Nov. 3 elections.
In a press release issued this morning, the ACLU said, “Flint residents sued the Flint City Clerk for violating their absentee voting rights, as guaranteed in the state Constitution, because its local office is closed to the public, which denies registered voters their right to vote by absentee ballot in person.”
The complaint, filed in Genesee County Circuit Court Thursday, demands that the Clerk’s office, closed by the pandemic since March 17, be reopened to the public and that information about the status of absentee ballot applications and ballot mailings be made public. The complaint requests “expedited consideration” because of the tight timeline leading up to the elections.
The full complaint is attached below.
It also demands that absentee ballots be mailed out within 24 hours of receipt of the ballot application. The complaint states that the City Clerk has failed to comply with “basic legal duties” and aims to protect the plaintiffs from “being denied their constitutional absentee voting rights and from potential disenfranchisement.”
Plaintiffs on the case, Barkey et al. v. Brown et. al., are Flint residents Brian and Doris Barkey, Nayyirah Shariff, Quincy Murphy, and Maryum Rasool. The ACLU’s cooperating attorneys are Gibbs and Mona Jondy. All of the plaintiffs had submitted ballot applications but had not received confirmations of receipts or the ballots themselves, ACLU cooperating attorney Alec Gibbs said.
While City Clerk Inez Brown and City Attorney Angela Wheeler declined to answer any questions from East Village Magazine, the ACLU announced in their press release this morning that “Within hours of the lawsuit being filed Thursday evening, Flint City Clerk Inez Brown indicated that her office would open on Monday. The lawsuit will continue in order to ensure Clerk Brown complies with all state laws.”
The city issued a press release Thursday evening confirming that “Friday, July 31, 2020 at 5 p.m. is the deadline for the City Clerk’s office to receive absentee ballot requests from registered voters in the City of Flint for the State Primary Election to be held on Aug. 4, 2020.”
That press release continued, “Although City Hall has been closed since March due to the COVID-19 pandemic, and will remain closed for an indefinite future, the Clerk’s office will be open daily from 8 a.m. to 5 p.m. starting July 20. In addition, the office will be open on Saturday, Aug. 1, from 9 a.m. to 5 p.m. to receive absentee ballots over the counter,” although the deadline ostensibly is the preceding day, according to the city.
“Despite the closure of City Hall, the Clerk’s office has continued to process absentee ballot requests received in the office,” the press release states.
According to vote.org, Michigan absentee ballot deadlines applicable to the Clerk’s office are as follows:
- In Person: are to be received 1 day before Election Day.
- By Mail: are to be received 4 days before Election Day.
- Online: N/A
- Voted ballots are due: Received Election Day.
As of Friday noon, a judge had not yet been assigned to the case.
Contacted by phone this morning, City Clerk Inez Brown declined to answer any and all questions and referred East Village Magazine (EVM) to City Attorney Angela Wheeler. EVM then attempted to contact Wheeler; her office staff stated they are referring all questions on the complaint to the Mayor’s office and Marjory Raymer, director of communications for the City of Flint.
EVM is awaiting a response from Raymer and/or the mayor.
The action was triggered by ACLU cooperating attorney Alec Gibbs, who said he learned from a source on about July 3 that while about 10,000 requests for absentee ballots had been received, only about 53 had been processed. Flint City
“We knew then that litigation was possible,” Gibbs said. He said the ACLU intends to take the Flint situation “national” as part of a larger response to what faces voters as the Nov. 3 election approaches.
Clerk Inez Brown asserted last week that those 53 ballots “were all military ballots.” She later told EVM that about 700 ballots were sent out on Tuesday, July 7.
The City Clerk’s office has been closed to the public because of the pandemic. The ACLU’s action includes a temporary restraining order (TRO) calling for the clerk’s office to be opened to the public immediately.
The action is called a “complaint for writ of mandamus and other relief;” “mandamus” referring to a public official alleged to have not fulfilled their legal duty, and the second part, also referred to as injunctive relief, sets out actions the plaintiffs seek, Gibbs explained.
The ACLU had sent a letter to the City Clerk Brown in July 7 requesting that the office open and that the facts of how many ballots have been received and how many processed be made public.
But Gibbs said the ACLU was not satisfied with Brown’s response, which he said “didn’t address the core issues” of the ACLU’s concerns.
Since then, Brown has shown “a change of heart,” Gibbs said, pledging to open the office on Monday. The office was closed Friday.
Gibbs said he spoke to City Attorney Angela Wheeler July 4 to tell her the letter was coming, and again before the complaint was filed Thursday. He said he told her the ACLU’s goal to get the city to comply; he said she did not indicate one way or another how the city might respond.
“We can’t verify until Monday that the Clerk’s office will be open on Monday, and even opening the office at this point will not cure all the damage that has been done,” Gibbs said.
As summarized in the ACLU press release,
“Michigan voters overwhelmingly passed Proposal 3 in 2018, which affords the right to absentee voting to all registered voters statewide. Voters in Michigan can vote absentee during the 40 days before an election, either at home by mail or in person at the voter’s local clerk’s office.
Today marks 18 days before the Aug. 4 Primary Election in Michigan, yet all registered voters in Flint have been unable to vote in person at their local clerk’s office because its office is closed.”
The ACLU statement continued, “Eliminating or reducing in-person voting options, including absentee voting in person, would inadvertently disenfranchise many Black voters, voters with disabilities, and Native American voters. People with disabilities must be able to vote in person with ADA-accessible voting machines, which must be available at their clerk’s office, polling place, or other specified location.
“Native American voters who live in more remote areas, including rural reservations, are less likely to have mail delivered to their homes or nearby polling places. And Black voters, including in the majority-Black city of Flint, have been historically disenfranchised as well through voter suppression tactics – they, along with all voters, must be given full access to the ballot.” the statement continued.
About 75,000 absentee ballot applications have been sent out to Flint’s registered voters, part of a statewide action by the Secretary of State.
According to the press release, “The lawsuit also claims that the Flint City Clerk is violating the Michigan law that requires a clerk to immediately mail an absentee ballot to a voter when the clerk receives a voter’s absentee ballot application. Voters throughout Flint who requested their absentee ballots weeks ago have yet to receive them.”
“Voters in Flint want, need, and deserve full access to their ballots, period,” said ACLU of Michigan cooperating attorney Muna Jondy, who with Gibbs is representing the plaintiffs in the case.
“While we are suing in Flint, this is not the only community in Michigan where this problem has occurred. Michigan election officials have a responsibility and an obligation to respect the rights of the voters they serve.”
“Less than 40 days out from an election, it is inexcusable for any clerk in this state to deny voters their absentee ballots in a timely manner, and to fail to provide every single option to all voters so they can cast their ballot in accordance with state law,” Gibbs stated.
Several of the plaintiffs, all Flint voters, issued statements accompanying the ACLU’s press release, as follows:
“I vote to ensure my voice is heard, and I prefer to vote early and in person by absentee ballot so I know my clerk immediately has my ballot after I fill it out and sign it,” said Quincy Murphy, a plaintiff in the lawsuit, registered voter, and Flint resident. “How can candidates for Flint city offices, the Genesee County prosecutor, and members of Congress be selected in the primary when voters are denied access to the ballot? As Flint residents, we’ve endured enough through the years. Being pushed out of the voting process on top of that is wrong.”
“No one should have to choose between their health and their right to vote, and that includes me,” said Nayyirah Shariff, a plaintiff in the lawsuit, and registered voter living in Flint. “I am considered to be high risk and medically vulnerable if I contract COVID-19 because of my health history and prefer to vote from home. So I mailed my absentee ballot application in May, but still have not received my absentee ballot for the August 4 Primary. This is unacceptable.”
“My vote matters just as much as the vote of somebody who lives outside of Flint. But today my neighbors and I are being denied our full right to vote, and in our hometown, because our city clerk is not mailing our absentee ballots in a timely manner and has closed its doors to the public,” said Brian Barkey, a plaintiff in the lawsuit who is also a registered voter living in Flint.
“In addition to Gibbs and Jondy, the Flint residents are represented by ACLU of Michigan legal director Dan Korobkin, along with Shankar Duraiswamy, Sarah Suwanda, and Corey Walker of Covington & Burling LLP,” the press release clarified.
“The ongoing pandemic makes it especially important that city officials honor the broad absentee voting rights that are enshrined in the Michigan constitution,” said Shankar Duraiswamy, Covington & Burling LLP attorney.
“Nobody wanted to conduct an election in the midst of a pandemic,” Gibbs said, “but for a lot of voters, this is a matter of life and death, because unless they can vote by absentee ballot, they are going to be forced to expose themselves to COVID-19 on Aug. 4 and possibly in November, and this is unacceptable.”
According to the city’s July 16 press release, “Individuals who enter City Hall are required to wear a mask, per Gov. Gretchen Whitmer’s Executive Order 2020-147.
Voters requiring additional information about the Aug. 4 election should contact the Flint City Clerk’s Office at (810) 766-7414.”
In full disclosure, Gibbs is a member of the board of East Village Magazine.
EVM editor Jan Worth-Nelson can be reached at email@example.com. Assistant Editor and City Hall reporter Tom Travis can be reached at firstname.lastname@example.org.
Here is the full complaint:Complaint for Mandamus and Injunctive and Declaratory Relief