91.7 Ann Arbor/Detroit 104.1 Grand Rapids 91.3 Port Huron 89.7 Lansing 91.1 Flint
Play Live Radio
Next Up:
0:00 0:00
Available On Air Stations

How Michigan’s first absentee ballot controversy helped solidify judicial independence

Judge's gavel
Flickr user Joe Gratz
The Michigan Supreme Court will choose a new Supreme Court Chief Justice today



It was an election year in a divided America. Tens of thousands of absentee ballots were sent out by the state. Eventually, the Michigan Supreme Court weighed in. 


No, we’re not talking about the 2020 election, but rather the presidential election of 1864. It was a contest between Abraham Lincoln of the Republican Party and former General George B. McClellan of the Democratic Party.


Carl Herstein is President of the Michigan Supreme Court Historical Society. Controversy ensued in the 1864 presidential election, Herstein said, due to debates on how soldiers would vote. The election took place during the American Civil War, and Michigan, alone, provided 90,000 troops over the course of the war. Because there was a very limited history of voting outside of your place of residence, absentee ballots were new and highly contested. 


“The idea of voting other than where you lived was a pretty foreign concept, and one that was of great concern to both the citizens and the court because of concerns about fraud and preserving the purity of the ballot, as they used to say,” Herstein said.


Michigan, like many other northern states, originally decided to allow soldiers to vote by bringing the polling place to the camp in which they were residing. Other states allowed for ballots to be filled out and sent back to each soldier’s polling place. Many politicians were worried about voter fraud and intimidation. 


“And both things turned out to have some merit to them. There were numerous examples of officers and others exerting influence on the troops to try and get them to vote for continuation of the war effort. As you might imagine, tempers ran very high with the Civil War raging and soldiers dying for the Union cause,” Herstein said.


Nine state supreme courts weighed in on the issue with Michigan being the last one to share an opinion. The main question was whether or not the state constitution limits the place or manner of voting. They also scrutinized the Soldier Voting Act, which failed to indicate which jurisdiction votes should be returned to if a soldier voted absentee. Because of this flaw in the statute, the Supreme Court had to make a ruling. 


At the time, Herstein explained, there were only four Justices on the Michigan Supreme court, and all four were in the Republican Party. Many politicians in the Republican Party were in full support of counting soldiers’ votes. The Supreme Court ultimately ruled to invalidate the act and not count the soldiers’ absentee votes. 


“One of the reasons that the three justices who voted to invalidate the act wrote separately, is because each wanted to establish their sincerity and their honest judicial feelings as to why they needed to vote against something that probably each of them personally favored and that their party strongly favored,” Herstein said. 


This was the beginning of an effort in multiple states to implement legislation that allowed absentee ballots in a much wider variety of circumstances. Herstein remarked on how important this decision was in upholding the integrity of the judicial system in America. 


“It was their belief that no matter how difficult the decision might be politically or personally, it was their obligation to follow the Constitution because it was intended to be the anchor of our liberty, as Justice Cooley indicated,” Herstein said. “I’m deeply impressed by the effort of the court to deal with this difficult issue. And the thoughtfulness and wisdom of the Justices dealing with difficult circumstances and attempting to do their duty, as they saw it, free from political requirements at a time when the country was engaged in a Civil War. Passions were at their height. It was easy to be emotional rather than wise in making a decision.”


This post was written by Stateside production assistant Catherine Nouhan


Stateside is produced daily by a dedicated group of producers and production assistants. Listen daily, on-air, at 3 and 8 p.m., or subscribe to the daily podcast wherever you like to listen.
Related Content