*1
re
FOR ADVISORY OPINION
REGARDING
FOR ADVISORY OPINION
In REQUEST
re
Docket No. 18, July 2007. 1963, 8, pursuant § art 3 Representatives, to
The
of
Const
House
Supreme
regarding
requested
opinion
the consti-
the
Court
the
that,
71,
168.523,
requires
tutionality
which
of 2005 PA MCL
sign
voting,
present photo
identification
voters either
before
photo
averring
identification. The
the voter lacks
affidavit
request
request-
granting
Supreme
the
and
Court entered an order
separate
arguing
ing
Attorney
briefs
the
General
submit
are,
requirements of
PA 71
and are
photo
the
identification
not,
and Justices Corrigan, Weaver, Markman, held: requirement in the statute photo contained The identification scrutiny facially under both the and withstands
is constitutional The and the United States Constitution. Constitution reasonable, nondiscriminatory requirement restriction de- is a signed prevent preserve purity the abuses of the elections 4, 1963, 2, thereby franchise, by § as art demanded Const electoral by not diluted helping to that votes cast lawful voters are ensure obligation by The fraudulent voters. votes cast 168.523(1) properly be characterized as imposed MCL cannot Const, poll Am because no tax under US XXTV an unconstitutional obtaining photo required identifi- voter is incur costs voting. card a condition of cation as advisory opinion request in this matter was for an 1. 3, 1963,
timely § after 2005 under art 8 because it was made Const effective date. PA 71 was enacted but before its voting identification faces An without 2. elector 168.727, challenge challenge but
possibility
under MCL
compulsory.
procedure is not
fundamental,
right
Although
vote
a citizen’s
3.
competes
vote
with
state’s
without limits. The
[July-
l
479 Mich
integrity
compelling
preserving
interest in
of its elections and
Legislature’s
explicit obligation
§
under Const
art
4 to
preserve
purity
guard against
of elections and to
abuses
elective franchise.
balancing
Takushi,
4. Under
test articulated
Burdick v
*2
(1992),
step
determining
important regulatory by inquiry interest identified the state. Each is circumstance-specific. fact- and photo requirement The 5. identification in the statute does not impose right a severe burden on an elector’s to vote. The statute compels registered only a voter to take one two actions in order to in-person present photo cast an sign ballot—either identification or Requiring sign an affidavit. an elector to an affidavit as an alternative presenting photo to impose identification does not a severe burden on right photo to provision vote. The in identification MCL 168.523 imposes only reasonable, nondiscriminatory a right restriction on the by precise to vote that is warranted interest identified prevention state —the of voter fraud and enforcement of the consti- preserve purify tutional guard directive to of elections and against by ensuring abuses of the elective franchise that lawful voters requirement not have applies their votes evenhandedly diluted. The every registered
to making regard voter without distinctions with to any class or characteristic. required provide any proof in-person 6. The state is not to may permissibly steps prevent voter fraud before it take to it. The equal guarantee protection constitutional require does not
Legislature every point to address at once at which voter fraud might occur. Michigan require every 7. The Constitution does not that subject scrutiny election law be to strict review. The flexible test applicable articulated resolving equal in Burdick protec- to an challenge
tion an to election law under the Constitution. 168.523(1) provide 8. MCL does not for an unconstitutional poll tax right because the statute does not condition the to vote
upon payment any requirement fee. The statute’s that a person sign presence inspector, affidavit in the of an election as presenting photo identification, an alternative to is not an onerous re FOR ADVISORY OPINION handicaps of the fran- requirement the exercise
procedural that voting. No voter need obstacle to does not erect a real chise and secondary any the affidavit alternative because of incur costs ever therefore, any 168.523; in- incidental costs contained MCL optional identification to obtain the a who elects curred voter poll a to tax. card be held constitute cannot provisions PA MCL photo of 2005 identification The
168.523, are constitutional. legislation dissenting, stated Justice Cavanagh, impairs significantly the fundamen-
issue is unconstitutional Michigan citizens. While the state vote thousands of tal 2, 4, regulate § authority, pursuant art to Const has the Equal elections, a cannot enact law violates state by unduly burdening the The vote. Protection Clause compelling applied case because must be in this state interest test constitutional voting the assertion of fundamental involves holding obligated right. majority not that the state is The errs support provide its asserted interest. The state evidence in-person prevention voter in this case is the interest claimed actually in-person fraud is no evidencethat fraud when there requirement nar- at issue exists. rowly compelling there is state interest because tailored to meet *3 and, therefore, no in-person need to no voter fraud evidence require- impose requirement. photo the identification the Because voting rights significantly of thousands of ment affect the will effects, discriminatory applying Michigan citizens and have truly heightened scrutiny helps ensure that such limitations are to merely
justified are not a the state’s asserted interests that anticompetitive exclusionary An pretext or restrictions. exami- light photo requirement a the identification in realistic nation of every that, evenhandedly applying clearly than to indicates rather Michigan voter, uniquely registered populations will be distinct in requirement substantially requirement. the The burdened equally. penalty imposed on A cannot be does not affect all citizens merely right to because a to exercise vote citizen who chooses practical, photo The not identification. the citizen does have substantially requirement can be used to effect of the real-world photo Given the penalize those identification. and harass without fraud and the state’s statutes that criminalize voter numerous statutory management as- comprehensive of all scheme for the mandating photo voting, in identifica- pects the state’s actions photo narrowly reasonable. The tailored even tion are nothing actually prevent requirement do to will identification imposing photo in in-person interest voter fraud. The state’s 479Mich i sufficiently requirement weighty justify
identification
bemust
to
Here,
weight
restriction.
has
the state’s interest
no
because there is
absolutely
problem
in-person
no evidence that a
with
voter fraud
even exists. The statute should be held to be 'unconstitutional.
dissenting,
infringes
Justice
stated that
decision to follow what it is the believes federal provisions nugatory. standard renders our state’s constitutional majority determining pursuant The errs in to Burdick v Takushi, past Supreme numerous decisions of the United States longer good signal change Court are no law. Burdick did not past Supreme the law or overrule decisions of the United States infringements Court that hold that on an individual’s scrutiny cast a ballot that cannot withstand strict are uncon- placed stitutional. The conditions act a voter’s access polling place scrutiny to the fail the strict test because no compelling state interest in them been has demonstrated. Significant in-person voter fraud has not been shown to exist in But, Michigan. shown, if even it had been less burdensome may methods exist to combat voter whatever fraud threaten to erupt. And, require even if the Fourteenth Amendment did not it, pass Constitution demands that the act scrutiny pronounced strict test in order to be constitutional. greater protection against The state constitution affords in- fringement on the to vote then does federal constitu-
tion.
1. Constitutional Law Elections Identification. photographic requirement identification contained in PA 168.523, voters, requires voting, present MCL which before photo sign averring identification or an affidavit voter photo identification, constitutional; lacks the identification obligation imposed by poll the statute is not an unconstitutional Const, tax under Am required US XXIV because no obtaining incur the costs of as a card voting. condition
2. Constitutional — — Equal Law Elections Protection. applicable resolving equal
A protection flexible text is *4 chal- lenge Michigan Constitution; to an election law under the the first step to magnitude is determine the nature and the of the claimed by vote, restriction inflicted the law election on the FOR ADVISORY OPINION state; precise if the weighed against interest identified severe, regulation must he to vote
burden on interest; compelling if the narrowly state to further drawn nondiscriminatory, imposed then restriction reasonable important regulatory interest upheld as warranted law is by the state. identified Casey, Cox, General, Thomas L. Attorney
Michael A. Heather S. General, and Susan
Solicitor Leffler General, for Attor- Attorneys
Meingast, Assistant constitutionality of 2005 support
ney General
PA 71. Cox, General, Casey, Thomas L. Attorney
Michael A. Solicitor General, Boynton, Assistant Henry
Solicitor D, Robinson, Attorney
General, Assistant and Ron the consti-
General, Attorney opposing General for PA
tutionality of 2005 71.
Amici Curiae: for C. Liedel Governor Keenan and Steven
Kelly G. Granholm.
Jennifer M. Ellsworth, Peter H. (by PLLC Wright
Dickinson Jef- Lanstra) Michigan for the and Allen L. Stuckey, V.
fery of Representatives.
House Pro- Michigan and Veena Rao
Mark McWilliams Service, Inc. Advocacy &
tection Cox, General, Casey, Thomas L. Attorney A.
Michael and Genevieve General, and D. Robinson Ron
Solicitor General, for the Tusa, Attorneys Assistant
Dwaihy Michigan and the Commission
Michigan Rights Civil Rights. of Civil
Department Demo- House for the Cummings
Sheila C. Caucus.
cratic *5 l 479 Mich Waldman, (by Nickelhoff),
Sachs EC. Andrew John Mulcrone,
Wm. and Cummings Sheila C. for the Michi- Michigan Democratic
gan Party, the House Democratic
Caucus, the Michigan Caucus, Senate Democratic and Michigan Legislative Black Caucus. (Thor) &
Lathrop Gage Hearne, (by II, L.C. Mark F. Dexter)
and K. for the Stephen American Center for
Voting Rights Legislative Fund and Kevin Fobbs.
Foster, Smith, Swift, Collins & (by EC. Eric E.
Doster), for Michigan Republican Party. Cawthorne,
Kelley (by ELLC Kelley), Frank J. for Kelley, Attorney
Frank J. General Emeritus. Hollowell, Jr.,
Melvin B. Turner, Jr., Reginald M. Kary Moss, Elhasan,
L. Elzein, Zenna Johnson, Rima John
Corporation Counsel, and Ruben Acosta for the National
Association for the Advancement of Colored People- Branch,
Detroit Michigan State Conference National
Association for the Advancement of Colored People, the Bar Association,
National the American Civil Liberties
Union of Michigan, League Detroit, of Women Voters
the American-Arab Committee, Anti-Discrimination Vote,
Project Association Communities Now,
for Reform Latin for Americans Social and Economic
Development, Inc., city Detroit, the Detroit Urban
League, and the National Community Coalition for and
Justice-Michigan. Weiss, Raitt Heuer & (by EC. D. Harold Eope,
Jaffe Shannon,
Brian G. and Erika Butler-Akinyemi), Blustein,
Ben Goldman, Greenbaum, Jonah Jon Mar- Johnson-Bianco,
cia and Daniel B. Kohrman for the
Lawyers’ Rights Committee for Civil Under Law and
the American Association for Retired Persons. FOR ADVISORY OPINION Opinion of the Court Gurewitz), Waldman, Ellen (by Mary EC.
Sachs clerks, clerks, city and town- Michigan county
various
ship clerks. Cox, General, L. Attorney Casey, Thomas A.
Michael O’Brien, Attor- General, Patrick Assistant
Solicitor State, General, Michigan Department
ney for the Elections.
Bureau of Michigan Constitution 3, § 8 of the J. Article YOUNG, *6 Legislature either house of the
allows the Governor important of this Court “on request opinion
to the as to the law solemn occasions upon of
questions ..” the
constitutionality legislation granted of .. We to on the Representatives’ request opine
House of 71, PA MCL Of con-
constitutionality of 2005 168.523. constitutionality require- the House is the
cern to the identification or present photo
ment that voters either averring photo the voter lacks
sign an affidavit voting.
identification before requirement identification photo
We hold that the constitutional under facially in the statute is
contained by the United States balancing
the test articulated The identifica-
Supreme Court in Burdick Takushi.1 reasonable, nondiscriminatory a
tion requirement designed preserve purity the of elections
restriction franchise, electoral as abuses the prevent Constitution, Michigan § 4 of by 2,
demanded art having from their lawful voters
thereby preventing More- cast fraudulent voters.
votes diluted those to incur the costs of
over, required no voter is as card as a condition of identification
obtaining photo by MCL
voting, obligation imposed the identification
168.523(1) an characterized as un- cannot properly 2059; 112 S 119 L Ed 2d 504 US Ct 479 Mich op Opinion the Court poll tax Twenty-fourth
constitutional under
Amendment of the United States Constitution.
I. UNDERLYINGBACKGROUNDFACTS our Legislature amended Law,
Election MCL et § 168.1 seq., include which
required a voter to identification present photo before
voting. The 1996 amendment was nearly identical statutory provision However, issue this case.2
before effective, the amendment became opinion issued,
the Attorney General concluding the photo
identification requirement § 523 violated the Equal
Protection Clause of the Fourteenth Amendment
United States Attorney Constitution.3 Specifically,
General opinion indicated that the
requirement was “not necessary further compelling
state interest” in the absence of evidence “substan-
tial voter fraud in Michigan” and that requirement
imposed logistical “economic and burdens” on those
without photo identification.4 Therefore, although
law was passed by signed both houses and by the
Governor, Secretary of State has never complied
with or validly enforced this enacted law.5
2 See
Attorney General, 390, 2; (1971), 384 Mich 407 n 185 NW2d 9 both supporting Attorney opposing and the opinions General maintain that by Attorney issued “binding upon agencies.” General are state Attorney opinion beyond Because the effect of an scope General advisory opinion, statutory we decline to address the or constitutional 9 In re FOR ADVISORY OPINION op Opinion the Court in elec- renewed interest brought
Subsequent events election revealed The presidential reform. 2000
tion in the electoral deficiencies alleged
highly publicized effort address these in In an several states.6
system America Vote
deficiencies, Congress Help passed (HAVA) admin- 2002, imposed in minimum which
Act requires elections.7 HAVA standards on state
istration proof register present mail
that first-time voters who or other in the form of identity photo addition, specifi- HAVA documentation.8 alternative minimum, provisions indicates its establish
cally authorizing states to institute explicitly
requirements, more requirements that are “administration
consistent requirements.9 than the federal
strict” HAVA, the
After the enactment of Commission HAVA’s Election formed to “assess
Federal Reform was and to “offer recommendations
implementation” findings The and recommen- improvement.”10
further September of the were released in
dations commission proposed pro- that voters
2005. One recommendation Attorney binding opinions are in for the claim that of the General basis Rapids Co Tax Grand School Dist v Kent opinion. East present Cf. Bd,
Allocation
415 Mich
10 1 479 Mich Opinion the Court photo
vide identification in order to deter and fraud 11 integrity. enhance ballot The commission noted system inspire public
“[t]he electoral cannot confidence safeguards
if deter no exist to or detect fraud or to identity currently
confirm the IDs voters. Photo are plane, buildings,
needed to board a enter and federal Voting equally important.”12
cash a check. require- photo 168.523,
MCL with its identification by
ment, was amended PA 2005 71. Concerned Attorney opinion regarding previ-
adverse General § Michigan Repre- 523,
ous enactment of House of adopted requesting
sentatives a resolution that this advisory opinion regarding
Court issue an whether requirements contained in PA 2005
71 violate either the Constitution or the granted request,
United States Constitution.13We asking Attorney argue General submit briefs and opponent proponent
as both of the issue.14
II. APPLICABLESTANDARDSAND JURISDICTIONAL ISSUES question presented original proceeding, in this facially
whether MCL 168.523is violative of either Jimmy Secretary former President Carter and former United States Baker, (accessed <http://www.american.edu/ia/cfer/> State James A. III. 2006). 19, December 11 Commission, supra Carter-Baker at 21. The Carter-Baker Commis require sion recommended that states voters to use the “REAL card” ID 109-13, 1268, to vote. The Real ID Act of PL 2005 HR was enacted May requires agencies only act accept 2005. The that federal stringent state-issued driver’s licenses and identification cards that meet requirements. information 12 Commission, supra Carter-Baker at 18. (Resolution 2006). 199, February 21, See House Journal 17 No. prevent confusion, Mich “supporting To the terms
Attorney
Attorney
“opposing
General” and
General” will be used
throughout
opinion
identify
argument
the briefs and
submitted
Attorney
proponent
opponent, respectively,
General as the
of the
constitutionality of
Michigan Constitution or the United States Constitu-
tion, question degree of law. To the purely *9 congruous, previously are this Court has
provisions Michigan’s to be equal protection provision15
construed Clause of the Equal
coextensive with Protection
federal constitution.16
A on a basis is challenged statute constitutional presumption constitutionality,”17
“clothed of
the burden of that a statute is unconstitutional proving it.18A party challenging party challenging
rests with the constitutionality of a statute “faces an ex-
the facial standard,”19
tremely rigorous
and must show that
“ ‘
the [a]ct
“no set of circumstances exists under which
’ ”20
would
valid.”
15
1963,
1, §
Const
art
2.
16
Const,
Coleman,
248, 258;
Crego
US
Am XIV
v
463 Mich
615 NW2d
Nehls,
(2000),
171, 183;
citing
218
Frame v
452 Mich
NW2d 166
in Lind v Battle
470 Mich
(2004)
J.,
(YOUNG, concurring),
lenge. applied” challenge application An “as considers the of a Crego Coleman, facially valid law to individual facts. 463 Mich 479 Mich Opinion op the Court preliminary matter,
As a opposing Attorney Gen-
eral claims that this Court lacks the constitutional
authority to issue an advisory opinion in this case
because the request advisory for the opinion was un-
timely. 1963, 3, § Const art provides either house Legislature or the may Governor request an
advisory opinion regarding the constitutionality leg-
islation “after legislation] [the has been enacted into
law but before its effective date.” opposing Attorney that, General maintains be-
cause
MCL 8.3u dictates that the effective date of
was March the effective date PA of 1996 583.21
Essentially, the opposing Attorney General claims that
Const 3, § art 8 cannot be satisfied because the
effective date of the public act occurred eight years
before
8.3u, merely which requires reenacted, that once a
amended, or revised law becomes operational, it is
treated as a continuation of prior law. It is axiomatic
that a statute becomes operational only upon its effec- Moreover,
tive date.22 MCL 8.3 indicates that MCL 8.3u
is to be observed “unless such construction would be (2000); Connecticut, 371; NW2d 218 Boddie v 401 US 91 S Ct 28 L applied” Ed challenge possible 2d 113 An “as is not at this
juncture, yet as the statute has to he enforced. provides: MCL 8.3u provisions any re-enacted, The law or statute which is revised, they amended or prior so far as are the same as those of laws, shall be a construed as continuation of such laws and not as any provision new repealed enactments. If of a law is and in re-enacted, substance a repealed reference in other law to the
provision shall provision. be deemed a reference to the re-enacted (“No 4, § expiration Const art act shall take effect until the days
of 90 passed, from the end of the session at which it was but the re FORADVISORYOPINION Opinion Court legisla- manifest intent of the
inconsistent with the indicates Legislature
ture.” The manifest intent of January PA 71 was the effective date of 2005 Representatives requested Because the House of
2007. date, before that this Court advisory opinion
an well 3, § under art 8 to render
indisputably jurisdiction has
an in this matter. advisory opinion
III. RELEVANTSTATUTORYPROVISIONS issue, 168.523, provides
The statute at MCL rel- part:
evant
(1) election, ballot, being given At each before each
registered offering identify elector to vote shall himself or by presenting
herself an official state identification ..., ..., operator’s
card an or chauffeur’s license or other
generally recognized picture card and identification
executing application showing signature his or her or presence
mark and address of residence in the of an
election official. ... If the elector does not have an official card, operator’s
state identification or chauffeur’s license subsection, required generally recog-
as or other card, picture sign
nized identification the individual shall inspector
an affidavit to that effect before an election provided
be allowed to vote as otherwise in this act. However, being an elector allowed to vote without the required subject under this subsection is
challenge provided as in section 727. that a statutory provision requires registered elec
tor two distinct acts perform being given before ballot.
First, present photo the elector must identification in the license, card,
form of a driver’s state identification generally recognized
“other identification card.”23 picture
legislature may give immediate effect to acts a two-thirds vote of the house.”). serving members elected to and in each 23 Because, Secretary in reliance on OAG No of State has promulgated regulations, never enforced the or rules and there is statute 1Mich Opinion op the Court execute,
Second, must in the of an presence the elector official, an application bearing
election elector’s
signature specifically provides and address. The statute that an the event elector does not have identification,
necessary photo only an elector need an to that effect” before
“sign affidavit the elector shall indicates, however,
“be allowed to vote.” The statute voting
that an elector “subject without identification is
to challenge” challenge procedures under the outlined
in MCL 168.727.24 Attorney
The General maintains that opposing vot-
ers without are photo impermissibly bur- speculate regarding type no basis for this Court to what of identification might eventually “generally recognized picture constitute identifica- duty promulgate regulations concerning . ...” tion rules and acceptable exclusively alternate identification lies with the Secre- 168.31(1). tary of State under MCL 24Any voter, including identification, presenting photo those voters may challenged pursuant imposes to MCL 168.727. The statute differing requirements challengers. inspector on different An election required challenge applicant inspector a ballot “if the knows or has good suspect applicant qualified registered reason that the is not a precinct, challenge appears elector of the or if a in connection with the applicant’s registration registered may name book.” A elector challenge applicant good suspect “if the elector knows or has reason to registered precinct.” individual is not a elector in that MCL 168.727(1). challenge may “challenge Those who voters indiscrimi nately” cause,” good qualified or “without and face criminal sanctions if challenged purpose annoyance delay. are
voters for the MCL 168.727(3). challenged, required truthfully Once a voter is to swear to answer questions “concerning qualifications answer his as an elector ... .” MCL challenged qualification questions 168.729.If the voter answers satisfac- torily, challenged voter “shall be entitled to receive a ballot and vote.” (and by challenged The ballot cast voter is marked the mark subse- concealed) quently corresponding poll awith number to the voter’s list number, 168.745; regular and is counted as a ballot. MCL MCL 168.746. only litigation The marked ballot becomes relevant in the event of surrounding election, challenged qualifica- a contested where the voter’s 168.747; disputed.
tions to vote are MCL MCL 168.748. *12 FOR ADVISORY OPINION Opinion of the Court phrase “subject
dened because the to” indicates that the
challenge procedure is not discretionary, but is compul-
sory whenever a voter seeks to vote without photo However,
identification. this claim supported by is not
the language of the statute. The plain meaning of the
phrase “subject to” connotes possibility, and in this
context is appropriately defined as meaning “open Moreover,
exposed to.”25 another provision 523(1), §of
mere three sentences provision issue, from the de-
scribes a situation in application which the of the
challenge procedure clearly mandatory, as indicated phrase use of the “shall challenged.”26 Here, be
Legislature chose to use the particular phrase “subject challenge” rather than mandatory phrase “shall challenged.”
be The fact Legislature that the used both mandatory permissive language concerning
challenges electors within the same statutory provi-
sion suggests that there is no basis for concluding
it intended “subject to” to be the equivalent to “shall.”
We that the presume Legislature meaning intended the statute,
of the words used in the may and we
substitute language alternative for that used by the
Legislature.27 Therefore, interpret we the last sentence 523(1)
§of to indicate that an elector voting without
photo identification faces the possibility challenge §
under but challenge procedure is not
compulsory. Rather, utilizing
plain
language
Dictionary, Unabridged
(1996), p
Webster’s New Universal
Edition
1893.
signature
registra
“If the
[from
or an item of information
the voter
correspond,
person
list]
challenged,
tion
does not
the vote of the
shall be
procedure
provided
and the same
shall be followed as
in this act for the
168.523(1)
added).
challenging
(emphasis
of an elector.” MCL
27People
America,
563;
v Crucible Steel Co
150 Mich
DaimlerChrysler Corp,
Mich
§ identi- including those without
fication, but if the may challenged, only person the voter has reason to
challenging good “knows or that the is not
suspect” registered elector of that
precinct.28
IV CONSTITUTIONALCHALLENGE
A. NATURE OF THE COMPETING INTERESTS
The to vote” “right expressly is not enumerated in
either our state constitution or the federal constitu- Rather, right
tion.29 it has been held that the to vote is “ ” implicit an ‘fundamental political right’ “ ”30 of all ‘preservative rights.’ As the United States noted,
Supreme Court “a citizen has a constitutionally
protected right to in participate equal elections on
basis with other citizens in jurisdiction.”31 However, “ ‘equal right [t]his to vote’ is not absolute . . . .”32
Balanced against “right a citizen’s to vote” are the
constitutional given by commands of Michi- people
gan Legislature 2, 4, § to the in Const art which in part:
states
relevant
merely
There is
basis
no
to conclude that a voter who
executes an
affidavit,
more, presents
challenger
“good
without
with
reason to
suspect”
registered
precinct.
that the voter is not a
of a
elector
Independent
Rodriguez,
See San Antonio
School Dist v
n
per
93 S Ct
Bd
360 US
79 S Ct
place elections, of all except manner nominations and provided
as otherwise in this constitution or the consti-
tution legislature and laws of the United States. The shall elections, preserve purity preserve enact laws to of ballot, secrecy guard of against abuses the elective
franchise, provide system registration and to for a of voter voting. [Emphasis added.] absentee 2, 4,§
Under art addition to the legislative respon-
sibility “time, regulating place and manner” of
elections, the Legislature has been com- specifically
manded by people Michigan to “preserve the
purity of guard elections” and “to against abuses of the
elective franchise.” provisions These have been a part of
our constitution for almost long Michigan as as has
been a state.33
As this Court noted in the nineteenth century, the
purpose of a pursuant law enacted to these constitu-
tional directives “is not prevent any qualified elector
from voting, or unnecessarily to hinder or impair his
privilege. It is the purpose preventing fraudulent voting.” Under the Legislature’s authority “pre-
serve the
purity
elections” and
guard against
“to
*14
33
authority
prevent
voting
The constitutional
to
fraudulent
was first
given
Legislature
Michigan
to the
in the 1850
Constitution. See Const
(“Laws
1850,
may
passed
§
art
preserve
purity
6
to
the
of elections
franchise.”).
guard against
and
abuses of the elective
The 1908 Consti
language
provision
tution
duty
altered the
of the
to make clear that the
obligatory, explicitly providing
was
passed
“[Raws
that
shall be
to
preserve
purity
guard against
the
of elections and
abuses of the elective
3, §
franchise ....” Const 1908 art
8. When the 1963 Constitution was
people,
responsibility
pass
ratified
preventing
to
laws
fraudu
voting
explicitly
Legislature,
lent
was
vested in the
and the Address to
People pointedly
legislature
specifically
stated
“[t]he
that
directed
corrupt practices legislation.”
Record,
to enact
2 Official
Constitutional
added).
1961, p
(emphasis
Convention
3366
34Attorney
Conely
Council,
General ex rel
v Detroit Common
78 Mich
(1889)
added).
545, 559;
(emphasis
18 Opinion of the Court franchise,” Legislature may the elective
abuses of enjoyment of destroy, but cannot
“regulate,
elective franchise.”35 mandate to specific legislative
In addition to the in voting contained fraudulent
prevent
Constitution, long recognized has jurisprudence federal authority regulate elections
that a state has the as as a “compelling
under the federal constitution well I, § 4 fraud.”36 Article preventing
interest states provides may prescribe
federal constitution Times, holding Places and Manner of Elections
“[t]he Smiley . . . v Kepresentatives
for Senators and .”37
Holm,38 Supreme the United States Court discussed the elections
scope authority regulate of state federal 1, §
under art 4: comprehensive
It cannot be that these words doubted authority provide complete
embrace code for con- elections,
gressional only places, as to times and but notices, registration, supervision voting,
in relation to voters,
protection prevention corrupt of fraud and votes,
practices, counting inspectors and duties of
canvassers, making publication of election re- and
turns; short, requirements as to enact the numerous
procedure safeguards experience are which shows
necessary in order to in- enforce fundamental volved. jurisprudence recognized
Federal has likewise retain the state and local power regulate
states 35 Comm’rs, 477, 479; Brown v Kent Co Bd Election 174 Mich 140 (1913) added). (emphasis 642 NW Gonzalez, 5, 7; US_,_; Purcell 127 S Ct 166 L Ed 2d (2006). Freeman, 191, 199; 1846; See also Burson v 504 US 112 S Ct (1992); Rockefeller, 752; 1245;
L Ed 2d 5
Rosario v
410 US
93 S Ct
36 L
Ed 2d 1
Const,
I, 4,§
US
art
cl 1.
(1932)
added).
355, 366;
(emphasis
285 US
52 S Ct
elections, to federal subject
limitations.39 authority to the constitutional possessing
In addition has elections, States Court Supreme the United
regulate in have a interest compelling that states
also recognized includ- processes, election integrity of their the
preserving right that an individual’s “ensuring in
ing interest process.”40 in fraud the election by undermined
vote not Court observed Purcell:41
As the Supreme processes is integrity of our electoral
Confidence democracy. functioning participatory of our
essential to citizens out of the democratic drives honest
Voter fraud government. of our Voters who
process breeds distrust and by fraudulent legitimate outweighed will be their votes
fear suffrage “The can be will feel disenfranchised.
ones weight dilution of the of a
denied a debasement or effectively by wholly prohibiting just as as vote
citizen’s
free of the franchise.” exercise
Thus, effectively dilutes votes voting fraudulent instituting requirements guard By
lawful voters. franchise, protects a state
against abuse of elective exercise their full share lawful voters to
this franchise. interest, a state compelling protect order re- and evenhanded
may “generally applicable enact 39 Connecticut, 433; Party Tashjian Republican Burdick, supra v at (1986); Sugarman 544; 208, 217; 2d v Ct 93 L Ed 514 US 107 S 479 (1973); 634; 2842; Boyd v
Dougall,
S
strictions that ofthe *16 process,”42
electoral because sense, law, compels
[c]ommon as well as constitutional government play
conclusion that must role in active elections;
structuring practical matter, “as a there must be regulation they
a substantial of elections if are be fair to order, chaos, if
and honest and some sort of rather than is accompany processes.”[43] the democratic sum, while a fundamental, citizen’s is vote competes It not unfettered. with the state’s
compelling preserving integrity interest of its Legislature’s obligation
elections and the constitutional preserve purity guard against of elections and to including ensuring franchise,
abuses the elective that
lawful voters not have their votes diluted.
B. STANDARDOF SCRUTINY
i. FEDERAL JURISPRUDENCE
Generally, by suspect where a law classifies a cat-
egory, way a “where law classifies such a as to
infringe constitutionally protected rights, fundamental
heightened scrutiny Equal under the Protection Clause required.”44 assessing However, in the context of a
challenge constitutionality to the law, of an election Supreme rejected
United States Court has the notion Celebrezze, 9; 1564; Anderson v 460 US 788 n 103 S Ct 75 L Ed (1983). 2d 547 (citation omitted). Burdick, supra at 433 See also Timmons Twin Party, 351, 358; 1364; Area Cities New 520 US 117 S Ed Ct 137 L 2d 589 (1997) (holding may, must, inevitably that “States enact reasonable regulations parties, elections, and ballots to reduce election and disorder”). campaign-related 44Attorney Soto-Lopez, 6; General New Yorkv 476 US 906 n
S
Suspect categories
race,
Ct
scrutiny scrutiny to strict voting
ject every regulation tailored to narrowly regulation
require tie the interest. . . would compelling a state
advance are to assure that elections seeking of States
hands Rather, the Court efficiently.”46 equitably and
operated is applicable: a standard” held that “flexible
has challenge law considering to state election
A court magnitude weigh of the asserted “the character and
must by rights protected the First and Fourteenth
injury to the against plaintiff seeks vindicate” that the
Amendments justifica- as precise put interests forward State
“the rule,” taking into imposed its the burden
tions for make it those interests “the extent to which
consideration plaintiffs rights.”
necessary to burden the *17 inquiry standard, rigorousness the of our
Under this depends upon the propriety election law
into the of a state regulation challenged burdens First and to which a
extent Thus, recog rights. as we have Fourteenth Amendment subjected to restric rights those “severe”
nized when are “narrowly
tions, advance regulation be drawn to the must importance.” a compelling But when state interest
a “reasonable, imposes only provision election law state
nondiscriminatory upon Four the First and restrictions” voters, important rights “the State’s
teenth Amendment
regulatory restrictions. interests [47] are generally sufficient to justify” the determining an elec-
Thus, first whether step the constitution is to determine law contravenes the
tion 45 review, scrutiny “[t]he State of constitutional Under a strict standard ‘regulation necessary compelling to a state is serve
must show that ” Burson, narrowly drawn to achieve that end.’ and that is interest Perry Ed Ass’n Ass’n, Perry 460 (quoting Local Educators’ supra at [1983]). 948; 37, 45; L 2d 794 103 S Ct 74 Ed US 46Burdick, supra at 433. omitted). (internal at 434 citation Id. 479 Mich Opinion of the Court nature magnitude and of the claimed restriction by vote,
inflicted law on election
weighed against the precise by interest identified If severe,
state. the burden on the is to vote then regulation must “narrowly drawn” to further a
compelling However, if state interest. the restriction
imposed is reasonable nondiscriminatory, and then the upheld by
law is as warranted the important regulatory
interest identified the state. The United States
Supreme Court has stressed that inquiry each is fact
and circumstance specific, because bright “[n]o line
separates permissible regulation election-related from ,”48
unconstitutional infringements . . . 168.523(1) every
Like election regulation, MCL im-
poses degree to some a However, burden on an elector.49 requirement contained in the
statute does not
a
impose
severe burden
upon
48 Timmons, supra
Brown,
724, 730;
at 359. See also Storer v
415 US
(1974)
(noting
S Ct
interest in that its election are efficient. Opinion of the Court FOR ADVISORY OPINION of overwhelming majority the to vote. For right
elector’s merely re- Michigan, the statute
registered voters that the identification photo of presentation
quires Attorney Gen- opposing already possesses.50
voter identify an elector to requiring claim that
eral does not vote, burden on the a severe imposes
himself purse into one’s reaching act of
nor claims that the being identification before photo and presenting
wallet imposes a severe burden on
issued a ballot
vote.51 maintains
Rather, Attorney General opposing an facially unconstitutional because statute registered burden falls on those
impermissibly severe reason, who, possess do not
voters for whatever argu- to this According identification.
necessary photo identification,
ment, particularly photo those without minorities, elderly, and the “poor, racial and ethnic free and unfettered
disabled,” “gain are unable However, explic- box.”52 the statute
access to the ballot identifica- photo elector without
itly provides an in the an only sign presence an affidavit of
tion need “allowed to vote.” The inspector being
election before Attorney explain why the act General fails
opposing presenting photo affidavit in lieu of signing an the Bureau of According an the Director of affidavit submitted State, Michigan Department of Driver Vehicle Records for registered approximately percent voters the state already possess card. Of either driver’s license or a state identification voters, many percent registered it is remaining unknown how five pre generally recognized picture . ...” As possess identification “other indicated, Secretary promulgated viously n of State has not see regarding identification will what kind of “alternative” rules satisfy requirement. 51 Historically, has been some mechanism Harris, part in the integral voting process. Election of the Administration Press, 1934), 6, pp (Brookings 221-222. Institution ch States United brief, Attorney p Opposing 12. General
24 Mich 1 479
Opinion of the Court imposes right identification a severe burden on the to signature a such Surely, affixing
vote.53 to an affidavit is
no a a greater signature burden than to affixing the
required application election under MCL 168.523.
Moreover, the affidavit the photo alternative to identi- requirement
fication a than imposes less of burden
imposed required on those voters who are to a execute casting
sworn statement before a provisional ballot.54
While both are required voters to execute sworn state-
ments, a provisional ballot “is not tabulated on election
day”;55 instead, the ballot not tabulated until the
provisional eligibility voter’s is verified within six days the
after election.56There is no simply basis to conclude requiring elector to sign an affidavit as an
alternative presenting photo imposes identification a on Furthermore,
severe burden the right vote. the a
application of “strict standard be especially would in a
inappropriate this, case such as which
to vote is on both ledger.”57 sides This is so
because fraudulent vote voting dilutes the of legitimate
voters.58 53 already rejected opposing Attorney We have considered argument challenge procedure General’s in MCL delineated required applied every 168.727 is to be voter who utilizes the affidavit voters, regard they alternative. All possess photo without to whether identification, possibility challenge pursuant face the to the statute. opinion. n See 24 54 provisional A ballot is cast “an when individual who is not listed on 168.523a(2). registration the voter list” seeks cast a ballot. MCL HAVA requires sign that a casting voter a sworn a statement as condition of provisional 15482(a)(2); 15483(b)(2)(B). ballot. 42 USC 42 USC 168.523a(5). MCL 168.813(1). By contrast, pursuant MCL a vote cast to the affidavit
provision
day
of MCL 168.523 is
on
tabulated
the election like
every other vote.
(CA 2007).
Bd,
7,
Co
Marion
Election
472 F3d
Crawford
58Purcell, supra
at_;
549 US
168.523 that is warranted
restriction” to vote Michigan’s interest identified
precise state — preventing interest regulatory
compelling well of the constitutional
fraud as as enforcement purity § in art “preserve contained
directive *20 guard against “to abuses of the elec-
of elections” and applies requirement
tive franchise.” identification in
evenhandedly every the state of registered to voter regard distinctions with to making without circumstance, every In a
any class or characteristic. need take of two actions in
registered only voter one present photo in-person to cast an ballot-either
order alterna- sign or affidavit. The affidavit
identification a voter who chooses to equally
tive is available to identification, precludes a faith him voter whose
obtain identification, a voter cannot
from who obtaining photo identification, lost simply or a voter who his
obtain
identification.
Moreover, pre- a reasonable means to the statute is As our in-person
vent the occurrence of voter fraud. indicated, has a
Secretary personal of State “without it is to nearly requirement impossible is, fraud voter fraud.”59 voter in-person In-person
detect in- very nature, order
by prevent its covert.60 fraud, require voter is reasonable
person provide a reliable seeking to cast ballot
person fact, regis- is, he in the individual
identification that Lynn Attorney Secretary Land to General from of State Terri Letter Crawford, supra Cox, April 20, 2006. See also
Michael A. dated difficulty apprehending a describing voter in the “extreme detail impersonator.” Burson, supra fraud are at 208. “Voter intimidation election See they precisely difficult to detect.” are successful because l Mich Opinion of the Court prevention
tered to vote.61 The first fraud critical,
instance is because it is impossible remedy
the harm inflicted the fraudulently cast ballot count,
correcting vote as our constitution requires
that ballots remain Conducting secret.62 the election only remedy
anew is the purge available to the taint of fraudulently ballot, cast a solution described “im- as
perfect” having “negative impact voter turn-
out.”63
The opposing Attorney argues General that MCL
168.523(1) fails even under a lower scrutiny standard of in-person rare”;
because voter fraud “is very thus, the
state’s interest fraud preventing “illusory” because
there is no significant in-person evidence of voter Moreover,
fraud.64 opposing Attorney General ar-
gues that the statute does nothing to address prevent
fraudulent voting, absentee “where fraud is known However,
exist.” there is no requirement
Legislature “prove” that in-person significant
fraud may permissibly exists before it prevent act to it.
The United Supreme States Court has explicitly stated “elaborate, empirical verification weighti- *21 61 In-person impersonation registered fraud could include of a
voter, casting voter, casting a vote in the name aof deceased or a vote in registered the name of a fictional voter. 62 1963, fact, See required § Const art 4. In a voter’s is to ballot be rejected any part exposed if any person. of the ballot is to MCL 168.738(2). rejected exposure, If the voter’s ballot is the shall “elector be to allowed vote at the election.” Id. 63Burson, supra at 209. 64 Opposing Attorney brief, pp Overton, General 21. See also Voter (2007) identification, (urging policy grounds 105 Mich L R 631 that empirical imposing lawmakers await better potentially studies before judiciary antidemocratic measures and that the should demand statisti data.). criminal, cal that Given voter fraud is both covert and it is hard to
imagine “empirical study” oppo how an of the kind demanded the requirements designed nents of voter identification could be or executed. 27 ADVISORYOPINION FOR Opinion of the Court is not justifications” of the State’s asserted
ness Rather, prophy- to take permitted state is
required,65 problems: electoral respond potential
lactic action to to predi as a require prove [harm] actual
To States imposition . . . restrictions to the of reasonable
cate the invariably lead to endless court battles over
would
sufficiency a State to “evidence” marshaled requirement necessi
prove predicate. Such a would political system some level of that a State’s sustain
tate legislature
damage corrective ac before the could take think, permitted Legislatures, we should
tion. potential process
respond to deficiencies the electoral foresight reactively, provided rather than
with significantly im
response is and does not reasonable constitutionally protected rights.[66]
pinge on provide any
Therefore, required state is not “significant proof,” in-person much less
proof, steps take may permissibly
voter fraud before
prevent it. obligated under
Furthermore, Legislature is not every Clause to address once Equal Protection
point might at which fraud occur.67Even the context to take voting regulations, Legislature “allowed ” time,’ at a and is not “to step required
reform ‘one conceivably have been every might
cover evil Rather, given the discre- Legislature
attacked.”68 harm determine ame- weigh perceived
tion to
65 Timmons, supra,
US
at 364.
533;
Party,
189, 195-196;
v
479 US
107 S Ct
Munro
Socialist Workers
(1986).
prohibit evils, all like none.” States v Carolene Products 144, 151; 82 L US 58 S Ct Ed Comm’rs, 802, 809; Chicago 394 US 89 S Bd Election McDonald (1969) (citation omitted). 1404; 22 L Ct Ed 2d 739 *22 479 Mich Opinion of Court priorities running equal
liorative without afoul of pro- guarantees:69
tection may in the
Evils same field of different dimensions proportions, requiring different Or so remedies.
legislature may may step think. Or reform take one time, addressing phase problem
a itself to the of which legislature most legislative
seems acute mind. The
may phase apply remedy there, select one of one field and a
neglecting prohibition of Equal others. The Protec goes
tion Clause no than the invidious discriminat further ion.[70] we obligation
Because conclude that the imposed by
the statute of presenting either photo identification or is a
signing affidavit not severe burden on the right
to vote, and that reasonable, the statute imposes only a
nondiscriminatory on process restriction the election in
furtherance of Michigan’s compelling regulatory inter-
est in preventing voter fraud and § art 4 to enforcing
“preserve the purity elections” and guard against “to
abuses elective franchise” by ensuring that lawful
voters diluted, not have their votes we conclude that the
statute facially is constitutional under the flexible stan-
dard Burdick, articulated in supra. Attorney 168.523(1) opposing argues General also that MCL justified not deterring because “an detecting effective framework for already place Michigan.” voter Opposing Attorney fraud in General brief, p support argument, 21. In of this cites counsel MCL 168.932a.This statute, 583, imposes penalties which was enacted PA criminal impersonate those who assume a name or fictitious another for the purposes voting. However, Michigan in-person criminalizes Michigan’s fraud undisputed preventing does address interest instance, provide fraud in the first nor do criminal sanctions means
detecting
Moreover,
imposition
fraud.
it is unclear how the
of criminal
penalties
remedy
system
could
harm inflicted
our
electoral
fraudulently cast ballot.
Oklahoma, Inc,
Optical
483, 489;
Williamson v Lee
348 US
75 S Ct
(1955)
added;
omitted).
(emphasis
ii. MICHIGAN CONSTITUTION that the Attorney argues General
The opposing protec of higher level grants Constitution
Michigan in Burdick articulated the “flexible test”
tion and that First, 1, 1963, § art 2. Const not with consistent that, its in contrast to Attorney General notes
opposing Michigan equal protection pro counterpart,
federal “political of express recognition contains
vision any regulation that Thus, counsel maintains
rights.” scrutiny rights” necessitates strict
affecting “political Second, City v Arbor citing Wilkins Ann
analysis. Community Action State Michigan UAW
Clerk71 and State,72 opposing Secretary
Program Council of Consti that the General maintains
Attorney de every that even a applies that law requires
tution analyzed be on the to vote must
minimis burden scrutiny.
under strict 1963, 1, § 2 does contain the term art
While Const term does not isola- rights,” that stand
“political authority, no counsel has
tion.73We have discovered rights” none, holding “political term
revealed an unfettered interpreted providing as
has ever been time, or place, of any type divorced from
right to vote Rather, reading the constitutional
manner restriction. no shall context, it be provides person
provision 71 (1971). 423 385 Mich 189 NW2d 506; 198 387 Mich NW2d rights” clause “political is found in the nondiscrimination The term 1963, 1, Equal art Clause. Const § 2 rather than the Protection
of art § 2 full: states in laws; equal protection of the nor person shall be denied No political enjoyment of his civil or person be shall denied against because
rights in the exercise thereof discriminated or be race, legislature origin. shall religion, national color or appropriate legislation. implement this section Mich l Opinion Court
denied his or enjoyment political “the civil rights against
be discriminated in the exercise thereof because race, religion, origin.” color or national (Emphasis added.) However, Attorney as opposing General
acknowledges brief, in its the distinction made in MCL
168.523(1) is possess photo between “those who identi-
fication and who Nothing those do not.”74 in the statute vote,
denies an elector the right to and certainly does race, do so religion, color, because or national
origin. 1, § art Accordingly, provides Const no
support for the claim scrutiny that strict must
applied every regulation. election
Likewise, the cases opposing Attorney cited
General do support not the claim that Michigan the
Constitution requires every that election be subject law scrutiny Wilkins, strict In review. supra, Court
considered the constitutionality 168.11(b), of MCL
statute that precluded students establishing from resi-
dency for the purposes registration. of voter Previous construing
caselaw the statute held that a student could
register to vote by overcoming presump- rebuttable
tion that the student not was a resident in the locale of
the institution learning.75 Relying exclusively authority,
federal held Wilkins that the statute violated
both process federal and state protection due and equal
provisions. The Court held that the statute violated due
process because there no consistently were applied
standards which a student could the overcome
presumption nonresidency.
In equal its protection analysis, Wilkins held that scrutiny
strict
applicable
was the
standard,
review
74
brief,
Opposing Attorney
p
General
8.
75
361;
Holcomb,
837(1893); People
97 Mich
Osborn,
56 NW
Wolcott v
143;
(1912); Attorney
170 Mich
noting “compelling recent [federal] to all of the exception with one
applied that an argument Rejecting cases . . .”76
voting . required to vote was denial of the
absolute that strict the Wilkins Court held scrutiny,
invoke strict it was sufficient was because
scrutiny appropriate “a on their could burden”
the students show standard, Wilkins heightened Applying
vote.77 statutory unconstitutional provision declared the
Court necessary to advance state’s was
because and interested elec- a concerned “promoting
interest will not vote “insuring that students
torate” and in
twice.”78 UAW, this Court considered State Michigan supra,
In re- MCL The statute constitutionality of 168.509. other had not voted or taken that electors who quired years have within the two previous action
specified the elector suspended, unless registration
their voter continuation,” bearing “application for an
completed maiden address, and mother’s signature,
the elector’s only case, dealt resolving the Court “with
name.79 art Const statute violated
one issue”-whether 1963, qualification.80 additional voter by1 imposing § utilized Court State UAW
Inexplicably,
76 Wilkins, supra at 681. at 684. Id. 685. Id. *25 79 UAW, J., dissenting). A notice (Brennan, Michigan supra at 522 State continuation, mailed to along application for was suspension, with the registration was days the elector’s 30 before
the address elector’s suspended. 2, UAW, 1963, 1, provides: § Michigan supra art at 513. Const State age of Every attained the the States who has citizen of United months, meets and who years, in this state six who had resided law, provided shall be requirements residence of local the l Mich Opinion of the Court scrutiny applicable strict standard in the equal context, 1,
protection 2, 2, § art analyzing § the art
question.81 UAW,
In Michigan Attorney State General ar-
gued provision that the statutory was permissible under
art 42, § of Michigan Constitution, supra. discussed
However, in analyzing constitutional provision, the
Court only Legislature’s addressed authority to
provide for registration, and did not address the
explicit preserve directive to the purity of elections and
guard against abuses of the elective franchise. The
Attorney argued General also returning the act of for application continuation was a price “small
pay.” In response, the Court cited Wilkins and two
United Supreme States Court cases in support small,
conclusion “[a]ny burden, however will not permitted unless there is demonstrated a compelling
state that, interest.”82 The Court concluded holding
because the had Legislature other statutes place that to prevent
served fraudulent voting, the state “failed to compelling
demonstrate a state interest” and the stat-
ute was 1963, 2, “unconstitutional under 1,”§ Const art
as adding an qualification.83 additional elector read,
Properly neither Wilkins Michigan nor State
UAWstands the proposition for that Michigan’s Equal Clause,
Protection in contrast to the federal Equal Clause, requires
Protection application strict qualified except elector to vote in election as otherwise
provided legislature in this constitution. The shall define residence voting purposes. support application scrutiny § strict to art
provision setting qualifications, forth voter State UAW exclusively equal cases, Wilkins, Court protection including cited supra. 82Michigan UAW,supra State at 516. 83Id. at 520. *26 FOR ADVISORY OPINION Opinion the Court law. Wilkins relied every election
scrutiny review jurispru-
exclusively on United State Supreme Court equal protection construing Michigan in
dence strict scru- requiring application as
provision on the placed “a burden” was
tiny whenever standard in the Wilkins decision Notably, nothing to vote. and federal between the state to differentiate
purported rather, provisions were
equal protection provisions; of the Wilkins purposes coterminous for
read as clarified, as Burdick However, subsequently
analysis. scrutiny every review to strict application
blanket constitutionally required under the
election was not law rather, Clause; scrutiny Protection strict Equal
federal constitutionally required only where an was
review on the imposed
election a severe burden law
vote. Because Wilkins relied a construction of the Equal subsequently Protection Clause that was
federal Burdick, analytical underpinning has
repudiated by its in construing and is of no destroyed utility
been
Michigan Constitution. UAW does not Michigan State
Similarly, support Michigan Attorney General’s claim
opposing requires scrutiny review of all elec-
Constitution strict State UAW opinion did regulations.
tion rely Michigan Equal on the purport examine at all. At analysis issue Clause its
Protection UAW was the constitutionality of a
Michigan State why It regulation. is unclear registration as an registration regulation the voter analyzed
Court 2, 1,§ under art because qualification issue
elector constitu- unquestionably explicit
Legislature possesses pursuant to art authority registration
tional over voter the strict § the Court borrowed Regardless, 4.84 2, § characteristics that art 1 sets forth the minimum Const “except they qualified to vote as possess before become
electors must i Mich Opinion op the Court standard,
scrutiny protection rooted in equal doctrine
principles, applied it to the issue of whether a voter
registration provision imposed additional elector
qualification 2, § under art l.85 significance,
Of neither nor Michigan Wilkins State
UAW or considered examined the of effect the constitu- 2,
tional 4,§ directive found in art the requiring Legis-
lature preserve to “enact laws purity to the of elections” “guard against to abuses the elective franchise.”
This is of oversight importance, critical “every because provision
[constitutional] must be in the interpreted ,”86
light of the document as a
.
whole . .
Because our
provided” citizenship, age,
residency.
1963,
2,
otherwise
Const
art
—
Legislature
authority
§ 4
regulate
time,
vests in the
the exclusive
to
place,
elections,
authority
provide
and manner of
as well as the
for a
system
Thus,
registration.
contrary
assertions,
of voter
to Justice
Kelly’s
provisions play
necessary
both constitutional
a vital and
role
a citizen’s
right
day.
to cast a ballot on election
Justice
Party
also relies on
Secretary
Socialist Workers
Kelly
v
State,
571;
(1982),
argue
1963,
412 Mich
1,
NW2d 1
that Const
art
requires
scrutiny. However,
§ 2
strict
Party
Socialist Workers
never
Michigan
concludes that
independently requires
Constitution
strict
scrutiny. Instead,
scrutiny
this Court
apply
determined
strict
would
under
constitution,
the First and Fourteenth amendments of the federal
citing
concluding
federal caselaw.See id. at 587-590.After
that the law at
amendments,
issue violated the First and Fourteenth
this Court sum
marily
1,
well,
§
relying
held that art
2 had been violated as
on the
“ ‘frequent past expressions
Michigan
of this Court that the
Constitution
right
protection”
equal
“secures the same
Equal
as is secured
”
21,
Protection Clause
Fourteenth Amendment.’
Id. at 600 n
quoting
Treasurer,
389, 395;
Governor v State
390 Mich
Attorney,
644;
(1946);
City Lansing
Mich
Ingham
NW2d 906
Clerk,
Co
308 Mich
constitutional “ ‘neither can simultaneously, having adopted been ”88Therefore, effort every trump other.’ logically provisions constitutional be made construe
should “should be construed
harmoniously, provision and no
nullify impair or another.”89 above, Constitution
Thus, Michigan as noted re- every regulation not election compel
does appropriate scrutiny. Given that
viewed under strict laws must be evaluate election
standard which to constitution, and must our entire with
compatible we provision, other constitutional
nullify impair in Burdick when the “flexible test” articulated
adopt an challenge to election
resolving equal protection test The Burdick Constitution. under the
law protecting balance between
strikes the appropriate §1, protecting 2 and to vote under art
citizen’s Therefore, 2, § art 4.90 voting under
against fraudulent to vote subjects
where an election law scrutiny appli- review is restrictions,” strict
“severe *28 narrowly drawn
cable, regulation must be and the However, when interest.91 compelling state
advance “reasonable, nondiscrimi- imposes only
an law election vote, the law is right on the
natory restrictions” 87 (1981) 210, Probert, 773 232-233 n 308 NW2d 411 Mich
(citation omitted). 88 (citation (1999) 526, 533; Governor, 592 53 459 Mich NW2d Straus
omitted). Clerk, supra Lapeer 156. Co at “simply following] assertions, Contrary arewe Kelly’s to Justice analysis preceding lockstep.” As precedent Post 109. in
federal 1, § demonstrates, carefully requirements art considered the of have we 4, test in Burdick light § art and that the enunciated determined 2, provisions. gives meaning Justice proper to hoth constitutional effect hand, impact of art adequately address the fails to other Kelly, §4. 91Burdick, supra at 434. 479 Mich
Opinion Court upheld advancing important regulatory as interest by
identified the state. As we have previously con- 168.523(1)
cluded, MCL does not impose a severe bur- vote;
den on rather, imposes only
reasonable, nondiscriminatory restriction that furthers
Michigan’s compelling regulatory interest in preventing
voter fraud as well as enforcing constitutional §
directive contained art “preserve the purity
of elections” “to guard against abuses the elec-
tive by franchise” ensuring lawful voters not have Therefore,
their votes diluted. the statute is valid under Constitution. 168.523(1)
V MCL NOT IS AN POLL UNCONSTITUTIONAL TAX
The opposing Attorney argues General
requiring voters to purchase a state-issued identifi- 168.523(1) card,
cation MCL is “tantamount to a poll
tax,” and Twenty-fourth violates the Amendment of
the United Const, States Constitution. US Am XXIV
provides: of citizens of the United any States to vote in
primary or other election... shall not be denied or abridged by the United States State reason of pay any poll
failure to tax or other tax.
The opposing Attorney argues General that the fee
charged by the Secretary State to obtain a state ($10) ($25) card or a driver’s license an
constitutes impermissible poll Moreover, tax. counsel
argues that the “real costs” in obtaining incurred
identification are higher,” “much and are properly
considered when determining whether the statute im-
poses poll unconstitutional tax. Such “real costs”
include the cost of transportation to reach the local
Secretary office, of State the cost taking time off work *29 go Secretary office, to the of State and the cost of 37 OPINION FOR ADVISORY op Opinion the Court necessary ob- documentation
procuring supporting identification, as a of copy such state-issued
tain
a certificate. birth v concerning poll Harper taxes case
The seminal There, United States the Bd
Virginia Elections.92 of im- Virginia a law that struck down Court
Supreme over every resident tax of poll an annual
posed $1.5.0 voting.”93 Virginia “a for precondition of 21 as age
the fee for equal “demand from all an that if it could
argued from license,” it “demand all then could
a driver’s The Court held that voting.”94 poll tax
equal made because law
Virginia law was unconstitutional any fee an payment of voter or of
“the affluence form of Regarding any “familiar standard.”95
electoral did
taxation,” opinion Court stated the Harper of payment so as”
nothing “impair validity long its exercise of is not “made a condition
fees
franchise.”96 Forssenius,97 Court considered the v Harman as a
constitutionality Virginia required, law that a poll tax or voting, pay an elector to either
condition six no later than
file an annual certificate residence Twenty- Holding the election.
months before “ procedural ‘onerous prohibited fourth Amendment of the effectively handicap exercise which
requirements
92 (1966). 1079; 663; L S Ct 16 Ed 2d 169 383 US 86 93 at 665 n 1. Id. 94 at 668. Id. 95Id. at 666. added). Harper opinion (emphasis overruled Breed Id. at 669 (1937), 205; Suttles, 277; Ed S Ct 82 L where US
love constitutionally permissible previously held that was Court had voting poll prerequisite . payment . . .” Id. taxes “[t]o make
283.
1177;
franchise,’ the Court struck down the certificate requirement imposed
residence because “a real ob- voting”
stacle to for those “who assert their constitu- exemption poll
tional from the tax.”99 Court noted every
that the certificate of residence had to be filed year, election,
election at least six months before the poll
and had to or be witnessed notarized. Unlike tax directly
bills, which were sent residence, a voter’s
certificate of residence had to be obtained from local prepared by person, voter,
officials or the and filed “in city county
or with otherwise” treasurer. The imposed noted
Court that the statute “a cumbersome
procedure,” preferable and that it seemed “far to mail poll payment upon receipt
in the tax of the bill.”100 168.523(1) case,
In this MCL not an is unconstitu- poll Harper
tional tax under because statute does payment any
not condition the vote on the possess adequate
Afee. voter does who not otherwise
photo required identification is not to incur the costs of
obtaining photo voting. identification as a condition of may simply sign
Instead, a voter affidavit
presence inspector. Nothing of an election in the statute
contemplates required that a is to incur costs
in the execution of an affidavit.
Moreover, the statute unconstitutional under signing presence
Harman because an affidavit in the inspector, presenting
an election as an alternative to simply proce- identification, is not an onerous requirement handicaps
dural exercise procedure
franchise. The in MCL 168.523 bears no procedure” depicted
resemblance to the “cumbersome Fulfilling requirement
in Harman. of MCL (citation omitted). Id. at
99 Id. Id. 542. FOR ADVISORY OPINION Opinion op the Court
168.523(1) as is requires only penmanship as much affidavit, readily which
necessary execute Harman, the fact precinct. at the election
available be “filed required certificate residency
that the was because significant, the election” was
six months before disenfran- one requirement “perpetuales]
such Twenty- of the tax which the
chising poll characteristics Here, designed to eliminate.”101 Amendment was
fourth that an affidavit executed requirement
there is no executed election; rather, an affidavit is
advance of 168.523(1) does Because MCL day
on the of the election. is no voting,”102 there a real obstacle to
not “erectD *31 under Harman. infirmity
constitutional procure photo no is ever
Although compelled voter exercising his as a condition for
identification statute, pro- that our law we observe
vote under a state for some voters receive
vides a mechanism that the requires no cost. Our law
identification card at customary fee for a state
Secretary of State waive meets of the any if an applicant
identification card 28.292(14).103 Thus, any listed in MCL
conditions
101Harman, supra at 542.
102 at 541. Id. 103 (14) provides: 28.292 MCL secretary section if shall waive the fee under this of state applicant following:
(a) age person years A or older. (b) operator’s or person has had his her chauffeur’s A who or revoked, Michigan vehicle suspended, or under the denied
license 257.923, code, 300, of mental or PA 257.1 to because a MCL disability. infirmity physical or (c) statutory as person presents blindness A evidence of who
provided in MCL 393.351 to 393.368. 1978 PA
(d) presents good for a waiver. person cause fee A who other MICH Opinion of the Court
who elects to obtain photo use at the is entitled to fee if
polls have waived he entirely $10 elderly, disabled, presents good cause to have the Therefore, many
fee waived. of the categories of voters
that the Attorney General claims opposing dispro- are
portionately affected of procuring cost the en-
tirely optional identification can in fact obtain
for free.104
Regarding secondary costs cited the opposing
Attorney time, transportation, and the ex- General —
pense of procuring supporting documentation —we
agree reasoning with the of the United States District
Court for the Southern District in rejecting Indiana a poll
similar tax claim:105 argument represents
This a dramatic overstatement fairly “poll
what constitutes It is tax.” axiomatic that “(ejection invariably impose laws will upon some burden Thus,
individual imposition tangential voters.” bur- dens regulation does not transform a poll into a tax.
Moreover, transportation the cost of time and cannot
plausibly qualify prohibited poll as a tax because these (e) Beginning January 2007, person who wishes to add or (l)(f). insignia
remove a heart described in subsection elderly Additionally, the and the disabled are entitled to cast pursuant 168.758(1),alleviating absentee ballots to MCL vote need to precinct present photo at an election and either identification or execute *32 an affidavit. 105 Party (SD Rokita, 775, Indiana Supp Ind, Democratic v F458 2d 827 2006) (internal omitted), citation aff d sub nom v Marion Co Crawford (CA 2007). Bd, 7,
Election F3d Rokita, required present the Indiana statute at issue a voter to photo valid by government identification issued either the federal state of possess Indiana. In the a requisite event voter did not identification, required the voter challenged, only was be to and could provisional a executing cast ballot after an affidavit. In order to have the
provisional counted, required provide ballot proof the voter was of identity by Monday following on the noon second the election. ADVISORYOPINION FOR Opinion of the Court registration and in- from voter “costs” also result
same requirements, one reason voting which would not
person provide principled poll no
ably as a tax. Plaintiffs construe theory.[106] support poll tax
argument might incidental cost which “only that
Noting assessed a tax the fee approach being poll
plausibly ultimately certificate,” the Rokita court a birth
obtain fees were the birth certificate the claim because
rejected as to “sufficiently requirements voting tied ”107 Here, even less of a burden ‘poll a tax.’ constitute any voters, no voter need incur since ever
imposed of the affidavit alternative
secondary costs because Therefore, incidental in MCL
contained 168.523. who elects to obtain
costs incurred a voter cannot be to constitute identification card held
optional tax.” “poll THE
VI. RESPONSETO DISSENTS the consti- strength are content to rest on
We made, briefly analysis pause we have but here
tutional emo- inflammatory some of more
to address acknowledge Cause/Georgia Billups, F that in v We Common (ND 2005), 1326, Ga, the court that a statute Supp held 2d photo poll
requiring constituted a tax because voter identification line, sign “arrange transportation,” a fee wait in had to “may require to facts the voter swear or affirm waiver affidavit photo at no simply are not true” in to obtain order later, adopted However, year judge than the same less one federal cost. holding analysis Rokita, thereby undercutting prior poll tax Billups, Cause/Georgia Supp 2d 439 F See Common sub silentio. (ND 2006). Ga, 1354-1355 107Rokita, plaintiff supra court that the 828. The Rokita noted anyone actually incur the “provided would have to no evidence” that had obtaining identification. a birth certificate order obtain costs Moreover, that could used to obtain other forms of documentation government, the federal whose identification were issued state. outside the control of the requirements and incidental fees were *33 MICH 1 Opinion op the Court arguments
tional made in Justice CAVANAGH’s dissent.108
It is clear that he passionately dislikes the enacted voter
photo requirement identification it believes to be
“ill-advised” and on empirical founded no data showing problem.
that has a voter fraud Whether the
statute is an policy “ill-advised” choice is not a judg- open judiciary, Court,
ment to the or any member of stated,
it. For reasons we have its policy whatever
merits, this legislative enacted is not policy choice one
that facially unconstitutional as dissenters main- turn
tain. We to some the specific now emotional
arguments advanced the dissent.
A. HAS NO MICHIGAN VOTER FRAUD PROBLEM accurately
The interest in this case is presented more as
preventing in-person voter fraud when there is no evidence in-person actually
that fraud exists.109 sting of the dissent’s contention that here is
photo identification statute serves no purpose and surely
therefore cannot constitutionally serve a signifi-
cant that justify one could slightest even the burden might impose a Michigan voter. even Not
opposing Attorney General argues that “no evidence” of exists;
such voter fraud the opposing Attorney General
suggests only in-person fraud voter is “rare.”110
post person voter ments have not come forward with statute have condition of no need to address her overlap “voted” 110Interestingly, Post Because the 94. with at (“[T]hose being fraud.”). presented November 2004 (emphasis arguments arguments dead at the time. All amicus arguing arguments separately certified death certificates of 46 curiae in made in Justice in favor of the made in Justice original). election, supporting these despite See documented instances of in- also persons Cavanagh’s unless otherwise indicated. Kelly’s Justice constitutionality ordinarily indisposing died well dissenting opinion opinion, Kelly’s persons advance require dissent, there is of the who OPINION FORADVISORY Opinion the Court in-person incidence of
However, whether of the frequent, the fact to be rare
fraud is believed required identification was that no voter
matter MCL 168.523 and no one enactment of
before the *34 with frequency know—the possibly
knows —or could at the More polls. fraud occurs in-person voter which fact that a inquiry is the
relevant to our constitutional given one a constitutional
legislature particularly — not of elections” —is purity to “preserve
mandate may calamity an electoral before to wait for
required to And while obligation preserve.112 fulfill its
act to vote, it does so right focus on the purports
dissent without one side of that
by considering only 2, § 4—that the object of art with the obvious
reckoning that one’s vote will includes the assurance
right to vote voters. The the votes of fraudulent
not be diluted this state clearly designed promote issue is
statute at those who desire by requiring value
constitutional identification estab in-person present
cast ballots registered they voters who they that are
lishing be.
claim to BURDEN THE STATUTE IMPOSES A SEVERE
B. a life in reality not of our citizens live is that all obtaining photo they photo identification and
which have solely causes a severe burden.113 to vote to issue state statutory regime compels
In a disabled, identification to its its Michigan photo
free election, ranging 16 months to more than dates of death from of the with surprising A number of years prior 2004 election. to the November apparently precinct. voted at their “voters”
these deceased opinion. n See 59 of Comm’rs, supra n Chicago 68. Bd Election McDonald 113Post at 63. Opinion op the Court 479 Mich i impecunious
seniors, citizens,114 and most its the dis- argument photo
sent’s that the identification statute
imposes anyone simply burden a severe facetious. argument wrongheaded
But the is even more on an- ground: statute,
other Under this no one need have or
present photo poll; identification at the a voter need only sign an to vote and have that vote affidavit every appearing
counted like those other voter at the
polls.115 ability
Justice CAVANAGH contends of voters sign
without identification to affidavit order imposed by
to vote does lessen the burden MCL “likely challenge
168.523because scenario is that the
process will be used some situations to harass and sign Although
intimidate citizens” who an affidavit.116 conjures up images being
he of voters denied their ignores officials,
to vote at the whim of election he statutory prohibition against
clear such harassment in *35 168.727(3), provides “[a] challenger
MCL which that challenge indiscriminately
shall not make a and with- good person challenges Moreover,
out cause.” a who a purpose annoyance delay guilty
voter for the of or contrary
a Thus, misdemeanor. assertions of challenge process
Justice the use of the CAVANAGH, opinion. See n 103 of this option While Justice KELLYmaintains that “affidavit itself” vote, post explain “interferes” with the she does not how signing signature any “minor obstacle” of one’s different that affixing signature required application a to the election under MCL Kelly suggests “signature 168.523. matching” Justice also that would be showing photo “less restrictive alternative” than either identification signing However, Post at affidavit. 95. it should be noted that signature necessarily matching requires signature, and does not obviate necessity confirming person poll Kelly person that the at the is the he Thus, appear objects claims to be. it would that Justice to the legislative determining identity potential choice in aof voter. 116Post at 73. re FOR ADVISORYOPINION Opinion op the Court by subjecting challenger
harass voters is deterred reasons, these the dissent errs penalties.
criminal For 168.523 a severe
by concluding imposes that MCL on the to vote.
burden A IMPACT ON MINORITIES
C. THE STATUTE WILL HAVE DISPARATE requirement dispar- will have a populations, poor impact on and ethnic as well as
ate racial
voters, elderly voters, stat- [T]he and disabled voters .... opportunity for thousands of
ute at issue will diminish the participate political process.117 in the
citizens unavailing, resorting all are arguments
When other racial discrimination is a substi- frequent
to a claim of Justice CAVANAGH has chosen this Unfortunately,
tute.
tack.118 act one’s name to an affidavit is signing
Since the Justice weight
too trivial an act to sustain the burden he has been overwrought argument,
CAVANAGH’s ignore
forced to the fact that this case involves a facial statute, argues to the statute and that the as
challenge in the will to abuses future, subject
it will be applied discriminatorily upon will be visited some Michi-
that that, may note whatever
gan simply citizens.119 We enforced, in this once the statute is our task
happen only capable
case is to determine whether the statute is that it passes valid We conclude application.120 challenge a facial because
constitutional muster under
[117] Id. at 64.
the desire to suppress minority suggesting at 63-66. Post [119] Indeed, Justice Legislature Cavanagh appears was motivated in at 57-59. Post voters. to have come enacting perilously statute close to
time. statute ality See of its is discriminatorily *36 Steffel enforcement will then be at issue and can cited in n 20 of this applied when it is opinion. enforced, Should challenged the constitution occur at that l 479 Mich Dissenting Opinion Cavanagh, J.
the voter photo identification statute imposes sig- no
nificant, “severe,” much less burden Michigan’s
voters.
VIL CONCLUSION advisoiy opinion, we have carefully considered the arguments advanced by Attorney General both
challenging defending the constitutionality of 2005
PA 71. For the reasons previously articulated, photo 168.523(1)
identification requirement in MCL is facially
constitutional and scrutiny withstands under both the
Michigan Constitution and the United States Constitu-
tion. Under the balancing Burdick, test articulated by
supra, identification requirement is a reason-
able, nondiscriminatory restriction designed to preserve purity of elections and to prevent abuses of the franchise,
electoral as 2, § demanded art of the
Michigan Constitution, thereby ensuring that lawful vot-
ers not have their votes diluted. Moreover, because no
voter is required to incur the costs of obtaining a photo
identification card as a condition of voting, the statute impose
does not the payment of a fee as “a condition to the
exercise of the franchise”121 and therefore is not an
unconstitutional poll tax under Twenty-fourth
Amendment of the United States Constitution.
Taylor, C.J., Weaver, Corrigan, and Markman,
JJ., concurred YOUNG, with
CAVANAGH, J. (dissenting). This case is not about
preventing fraud, it is not about thwarting abuses franchise,
of the electoral and it is certainly not about
preserving the purity of elections. This case is simply
about protecting to vote for all Michigan
[121] Harper, supra at 669. *37 47 FOR ADVISORY OPINION Dissenting Opinion Cavanagh, J. “All Michigan provides: As our Constitution
citizens. Government is people. is inherent power
political benefit, security protec- equal their
instituted for 1, ignores Today’s § art 1. decision
tion.” Const misguided and endorses principle
this constitutional impairs the fundamental significantly that
legislation citizens to vote. statute of thousands of our
right ignore of this statute majority’s approval and the
issue right bestow the that the does not government
the fact inherent, right citizens. The to vote is
to vote on our simply protect role is government’s
and the failed its citizens. government our has
right. Today, is unconsti- legislation I this ill-advised
Because believe
tutional, I dissent. respectfully FUNDAMENTAL
I. THE RIGHT TO VOTE IS country in a free than that right precious
“No is more make the a voice in the election of those who having which, citizens, live. good as we must Other
laws under basic, illusory right if the to vote even the most are
rights, 1, 17; Sanders, US 84 S Wesberry undermined.” v 376 (1964). right freely 11 L Ed 2d “The to vote
Ct 481 choice is of the essence of a
the candidate of one’s right restrictions on that society,
democratic representative government.” Rey at the heart of
strike 533, 555; 1362; 12 L Ed 2d Sims, 377 US 84 S Ct
nolds (1964); Kramer v Union Free School Dist No see also (1969). 1886; L Ed 2d 621, 626; 89 S Ct 395 US right right encompasses
The fundamental to vote at 554.
actually Reynolds, supra have those votes counted. to vote is Michigan, protected our citizens’ Protection Constitution, Equal as well as the
Michigan
Clause of the United States Constitution.1 Our Michigan Constitution provides: 479 Mich Dissenting Opinion by Cavanagh,
This Court has long recognized “right
vote has always received a preferred place our system.
constitutional The importance of this right
cannot be overemphasized. It is the protection basic
that we have in insuring government our truly will representative of all of its citizens.” State Community
UAW
Action Program Council v Secretary
State,
506, 514;
387 Mich
“[T]he to vote is accorded extraordinary treat- because, is,
ment terms, in equal protection
extraordinary right: a citizen cannot hope achieve
any meaningful degree of political individual if equality
granted an inferior participation of political the
process.” Doe, Plyler 202, 233; v 457 US 102 S Ct (1982)
L72 Ed 2d (Marshall, J. concurring). While
the state has the authority to regulate elections pursu- Every citizen of the age United States who has attained the of years, months, who has resided in this state six and who meets requirements provided law, the by of local residence shall be an qualified any except elector and to vote in election as otherwise
provided in legislature this constitution. The shall define residence voting purposes. 1963, 2, [Const § 1.] art Constitution, Under the United voting age requirement States changed years. Const,
has been to 18 US Am XXVI. Equal The provides, Protection Clause of the Constitution part, following:
in relevant person equal protection laws; No shall be denied the of the nor any person enjoyment shall political be denied the of his civil or
rights against or be discriminated in the exercise thereof because religion, race, origin. 1963, 1, [Const § color or national 2.] art Equal Protection Clause of the United States Constitution
provides: any No state shall make or abridge enforce law which shall privileges States; or immunities of citizens of the United nor shall deprive any person life, liberty, property, state or without process law; deny any person jurisdiction due nor within its equal protection Const, Xiy [US § of the 1.] laws. Am REQUEST ADVISORYOPINION FOR Opinion by Dissenting Cavanagh, 1963, 2, 4, cannot pass § art the state law
ant to Const Protection Clause. See Williams Equal
that violates the
23, 29;
5;
This Court 3, 8,§ addressing to Const art
opinion pursuant PA constitutionality §of 523 of 2005 which voters to an official state identification
requires provide
card, license, generally recognized or other a driver’s identification card to vote. The statute also
picture that a voter who does not have one of these
provides must an affidavit to that sign
forms to vote. The statute being pro-
effect before allowed
vides, following: part, relevant
(1) election, ballot, being given a each At each before identify
registered offering to vote shall himself or elector by presenting
herself an official state identification card , operator’s or
issued to that individual... an chauffeur’s , generally other
license issued to that individual... or
recognized picture executing identification card
application showing signature her his or mark presence in the of an election official.
address residence signature qualified in the voter file
If an elector’s contained polling place, in the the election official shall available upon application digi-
compare signature with the signature provided qualified voter file. If an
tized *39 signature qualified in the
elector’s is not contained voter
file, application process the in the the election official shall processed applications
same manner as are when a voter place.
registration polling in the If voter list is used
registration precinct, the lists are used in the election application
inspector determine if the name on the shall registration appears list. If the name
vote on the voter list, registration
appears on the voter the elector shall by giving or her date of
provide further identification his registra- upon the
birth or other information stated voter lists, precincts using registration
tion list. In
voter
date
required
placed
application to
may
birth
to be
on the
vote. If the or an item of information does not
correspond, person challenged, the vote of the shall be procedure provided
the same be followedas in shall this act challenging person offering
for the If the of an elector. signed registration application
vote has card or mark,
making person identify shall himself or herself birth,
by giving compared his or her date of which shall be upon registration
with date birth stated card or registration list, give or shall other identification as
may upon registration be referred to card or voter
registration list. If the elector does not have an officialstate card, operator’s
identification or chauffeur’s license as subsection,
required generally recognized in this or other card,
picture sign identification the individual shall inspector
affidavit to that effect before an election and be However, provided
allowed to vote as otherwise in this act. being
an elector allowed to vote without the identification
required subject challenge under this subsection is as
provided in [MCL 168.523.] section 727.
A photo requirement identification previously was
passed by 1996, in Legislature but Attorney
General issued an opinion that the photo identification
requirement PA Equal 583 violated the Protec-
tion Clause of the OAG, Fourteenth Amendment. 1997- 1997).
1998, 1p (January No legislation The
passed 1996 was in every identical relevant respect to
the legislation case, at issue in this and the photo requirement
identification has not been enforced since
that time. Attorney General stated: “For the poor, those drive,
who do not especially elderly, the handicapped who, reason, those for whatever do not possess a card,
picture this requirement imposes
economic and logistical burdens.” Id. at 3. The Attorney
General acknowledged that the prevention of voter is, course,
fraud governmental interest, valid but
the prevention of nonexistent voter fraud did not sur- *40 OPINION FOR ADVISORY Dissenting Opinion Cavanagh, J. scrutiny. The strict constitutional required
vive chief law enforce- that “as the General stated
Attorney I am not aware of of Michigan, of the State
ment official I elections. Michigan’s fraud in voter
any substantial fraud.” regarding complaints not received
have relied on confirmation General also
Id. Attorney The official, then-Secretary chief elections the state’s
from Miller, of the fact for further evidence
of State Candice Id. fraud problem. have a voter does not Michigan the state that because General concluded Attorney fraud, the an with voter not have issue Michigan does not neces- simply “is requirement identification
photo interest.” governmental compelling a
sary promote requirement identification
Id. Thus, because governmen- necessary promote compelling
was state’s to vote to our right it denied the
tal interest and identi- required photo
citizens, earlier statute implemented. was never
fication to vote IMPOSES IDENTIFICATION REQUIREMENT THE PHOTO
II. CITIZENS A BURDEN ON MICHIGAN’S SEVERE violates requirement
The photo burdens our unduly Clause because Protection
Equal stated, any law As this Court has right to vote.
citizens’ right on the a burden places
that affects elections UAW, 516. The United supra State at Michigan
vote. a statute held that when Court has also Supreme
States vote, right of the on the exercise a condition
places Blumstein, 405 US Dunn required.
exacting test (1972). If a 995; L Ed 2d 274
330, 337; Ct 92 S to some to vote grants
challenged statute citizens, to other to vote and denies
citizens are the exclusions determine whether must
the court Id. state interest. compelling
necessary to promote small, permitted not be burden, will however
“Any state inter- compelling demonstrated a there is
unless Mich 1 Dissenting Opinion by Cavanagh, UAW, Lane v supra citing State
est.” 268, 275-277;
Wilson,
race the restriction is and v exacting judicial
demands McDonald Bd scrutiny. of Chicago, 807; Comm’rs 394 89 S Ct
Election US (1969). 1404; 22 Notably, Equal L Ed 2d 739 the “guards against
Protection Clause subtle restraints on vote, right to as well denial.” v outright
the as Wilkins Clerk, 670, 684;
Ann Arbor 385 Mich NW2d City 189 (1971).
423 a
To determine whether compels restriction indeed
strict the a scrutiny, requirement extent to which rights
burdens a citizen’s must be examined. Burdick v
Takushi, 428, 434; 2059; Ed US S Ct 119 L 2d (1992). a When restriction is reasonable and non
discriminatory, the state’s inter important regulatory generally
ests are sufficient the Id. justify restriction. severe, when regulation
But a restriction is must be
narrowly only tailored to advance a compelling govern Id.;
mental interest. Bd see also Illinois Elections Party, 173, 184;
Socialist Workers 440 US 99 S Ct L Ed 2d deny will When a statute some right vote,
citizens the the general presumption
constitutionality is applicable. Kramer, supra at presumption
628. “The of constitutionality in
approval given ‘rational’ types classifications other
enactments are based on an assumption that the insti government
tutions of state are structured so as to all
represent fairly the people.” Id. But “when the
challenge to the challenge statute is effect a of assumption, assumption
basic no longer can serve
as the basis presuming constitutionality.” for Id. legislation
While Kramer dealt with that explicitly
denied certain citizens the to vote in school FOR ADVISORY OPINION Dissenting Opinion Cavanagh, elections, premise equally this fundamental
district challenge to the case us. The in the before
as sound dispro- it will is that requirement vote racial and ethnic deny
portionately elderly, poor, well as to the as
populations, The government are disabled.
citizens who —which protection in providing be the voice fairness
should has enacted the very entity
all citizens —is discriminatory. The allegedly govern-
legislation that scrutiny strict now shield itself from
ment cannot rational basis only purported
because provides failing to requirement simultaneously provide while rationale. Our support purported evidence to its
any fairly one has been elected—
Legislature —even of voters from voice minority
“can exclude as if just effectively
decisions as the decisions were minority no voice in select- by legislators
made had Id.
ing.” *42 political party is itself
“[T]he State controlled in which have an incen- parties power, presumably the rules of the to their own shape game
tive electoral 603; Beaver, 581, v 544 S Ct
benefit.” US 125 Clingman (2005) (O’Connor, J.,
2029;
ring);
Republican Party
see also
v
Connecti-
225;
cut,
208,
544;
Ct
(1986) (The Court that the interests of the recognized extent, represented, to some the views the one
state party enjoying majority power.). Recognizing
political always wholly not government
the basic fact that mean that
independent and unbiased does not reason- genuinely necessary requirements and
able and neutral that an intellec- be But it does mean imposed.
cannot requirement begin of a must
tually honest examination examining and this basic fact recognizing political
with in role has the enactment of played
what this See, v Marion Co e.g., at issue.
requirement
Crawford
Election F3d
(Evans, J., dissenting). As “become more requirements
severe, however, particularly they and where have dis-
criminatory effects, increasing there is for con- cause may using
cern that those in power be electoral rules to
erect barriers to competition.” Clingman, electoral su- (O’Connor, J.,
pra concurring).2 at 603 rights fundamental and liberties are as-
“[W]here Equal Clause,
serted under the Protection classifica- might
tions which invade or restrain must them
closely carefully scrutinized confined.” Harper v Elections, Bd
Virginia 1079; Ct US 86 S
16 L Ed 2d Thus, to determine if a law Clause, the Equal
violates Protection the court must
weigh the and magnitude character of the burden against justify
caused the interests that the burden. See
Timmons Twin Cities Area New US Party, 520 majority perilously I suggesting The claims that “come close to that Legislature enacting in was motivated this statute the desire to suppress minority Ante at voters.” 45 n 118. Yet I no advocate such position. majority my The distorts view because it that this believes will response have most shock value because it has no for realistic position espouse. political party any political party I do When that — —is power legislation and enacts that will affect our citizens’ fundamental vote, job realistically it is the of the courts examine the legislation, challenged, if it is the effect have determine it will on our likely negatively those citizens. If who are to be affected are viewed as voting party power, certainly often that is factor one shocking principle; must not a be considered. This is it is a rational one. majority pretend concept chooses that it is scandalous political may actually legislative politi motivations affect the votes concept people, cians. Yet is a basic that I think few reasonable officials, including try our elected would even to counter. This does not Legislature mean that the acted with untoward motivations when statute, enacting this person but does mean that a reasonable should *43 considering possibility politics played may not be blind to have only inquiries being
role. need One look at continued made on the disingenuous position being national to level see the of the nature taken by majority. FOR ADVISORY OPINION Dissenting Opinion by Cavañagh, (1997).
358; 1364; Specifically, L Ed 2d 589 S Ct of the at areas: character “[T]he
the court looks three interests af- the individual question;
classification classification; in- governmental and the
fected Dunn, the classification.” support
terests asserted the classi- examining In the character of at 335.
supra circum-
fication, must consider the facts and the court Williams, 30. While supra law. at
stances behind the separate permissible test bright-line
there no to in- from unconstitutional regulations
election-related vote, to the court right on our citizens’
fringements concerns to which the state’s
must consider the extent Timmons, at necessary. supra 358.
make the burden time, place, power regulate
But “[t]he more, the without justify,
manner of elections does fundamental such as the rights,
abridgement voting in- Tashjian, . at 217. Because supra
vote . . .” a fundamental constitutional assertion of
volves the vote, with the actual this case deals
right and time, regulation regarding merely a minor
and not elections, state compelling manner of
place, Wilkins, at 681. applied. supra must See
interest test
Thus, a compelling if the state unable demonstrate it seeks to significant impairment for the
interest must be deemed unconsti-
implement, then the statute at
tutional. Id. 682. required that “the state is not majority purports ‘significant proof,’ much less any proof,
to provide may permissibly take voter fraud before
in-person ignores majority Ante at But the
steps it.” 27. prevent A it cites. state can aspect of the caselaw
a critical response is deficiency only “the potential to a
respond if significantly con impinge and does not
reasonable Work rights.” Munro Socialist
stitutionally protected 2d L Ed 189, 196; US 107 S Ct
ers
Party,
346, the United States
Dunn,
supra
*44
[July-
56 Dissenting Opinion by Cavanagh, J.
Supreme specifically Court noted that the record was
“totally of any support devoid evidence” to a durational
residency restriction, requirement. in this case a
photo identification must requirement, be reasonable the the
given interest restriction serves. See allegedly
Burdick, supra Timmons, supra at 358-359. 434; at
Deciding if a restriction depends is constitutional very
much on facts law, “the and behind circumstances the
the interests which State claims to be protecting,
and who disadvantaged by interests those are Williams, supra 30; see also Storer v
classification.” at
Brown, 724, 731; 1274; 415 94 US S Ct 39 L 2dEd 714
(1974). Thus, disagree I the majority with that the state
is not obligated provide any evidence to its support
asserted interest.
I also disagree majority’s with the characterization
the asserted interest. The majority alleges that
interest to be fraud, served is voter preventing but I
disagree that interest this case can be presented broadly. certainly
so “States have an interest protect-
ing fairness, and integrity, efficiency of their ballots
and election processes as means electing public Timmons,
officials.” supra at 364. But that does not by merely
mean that making the broad claim ad-
dressing fraud, voter a state has no limits on its actions. Dunn, supra
See at It is the circumstances of 345-346. case that determine weight be af- must forded stated interest. Party Democratic v California
Jones, 567, 584; 530 2402; US 120 S Ct L147 Ed 2d 502
(2000). A must court determine the legitimacy and
strength “precise of the interest” asserted the state justification
as its for the enacted restriction. Anderson Celebrezze,
v 780, 789; US 1564; Ed S Ct 75 L 2d (1983). And the restriction precisely must
specifically address the state’s Kusper Pon- interest.
tikes, 59; 303; US 94 S Ct L Ed 2d 260 re OPINION FOR ADVISORY Dissenting Opinion by Cavanagh, way to it a less drastic open
“If has the State interests, may choose a legitimate its
satisfying stifles the exercise of broadly scheme that
legislative liberties.” Id. personal
fundamental important fraud is an preventing
Of voter course abstract, inquiry is in the but the relevant
interest degree,
whether, in-person what fraud require- addressed
would be Party, supra Democratic
ment. See California *45 Union New Mexico American Civil Liberties see also of (D Santillanes, Dist LEXIS 17087 *98-*99
v 2007 US 2007).
NM, such February 12, Using a broad interest as any restric- voter fraud would allow almost
preventing constitutional, and effec-
tion to be deemed this would
tively nullify any constitutionality, true test thus for government any to enact almost constraint
allowing chooses, that it all in the name of voting preventing
“voter fraud.” See Commission on Federal Election
Reform, in US. Elections Building (Sep- Confidence 2005) (Comments Daschle, Spencer Tom tember (“The,
Overton, Yzaguirre) mere fear of voter Raul justify denying eligible
fraud should be used to never vote.”).3 But
citizens their fundamental simplistically in this cannot be so deemed.
interest case in accurately
The interest case is as presented more voter fraud when there no
preventing in-person actually that voter fraud exists.
evidence in-person only history no evidence or
Not there in in-person Michigan, with voter fraud but
problem
Kelly Chesney, Secretary of State spokesperson “ Land, a number of Lynn Terri has stated: ‘We have process prevent and balances inherent
checks do believe the safe- voting from .... We people”
“fake
14, 2007). <http://wvmamerican.edu/ia/cfer/report/report.htm> (accessed May Mich 1 Dissenting Opinion Cavanagh, ”
guards place protect will of the integrity election.’ Selweski,
Chad Flood registrations voter raises specter Daily, 30,20044; election fraud, September Macomb see Land, Bay Party also Co 347 F Democratic 2d Supp (ED 2004). Mich, Former Attorney General Kelley
Frank J. has also stated that Director of Michi-
gan Christopher Elections Thomas recently informed
him had “that he never heard single observed or of a of a using
case fake identification at the time of
voting.” Amicus brief at 3. The is that reality the issue
of access can voting to the polls unfortunately be turned political
into a reported issue. As earlier this year, a panel
federal Election Assistance Commission— —the downplayed the findings experts who conducted
election research and found there was little voter fraud Urbina,
around the nation. Ian Panel U.S. is Said to Fraud, Times,
Alter on Voter Finding N.Y. April Instead, panel
2007.5 “issued a that report said
pervasiveness fraud open was to debate.” Id. also
panel changed original report’s that findings
evidence of outright continued sup- intimidation and
pression registration existed and that forms had not
been used in polling place fraud. earlier, Id. Just weeks panel had also refused to report release another had commissioned found that voter identi- *46 turnout,
fication particularly laws reduce minor- among
ity group Thus, members. Id. I believe is clear that prevalence lack thereof —of fraud voter is criti- —or photo
cal to whether necessary. identification laws are
Moreover, objectively, when viewed the claim of
“voter fraud” has repeatedly been exposed as a tactic
4 <http://macombdaily.com/stories/093004/loc_fraud001.shtml>(acces 2007). 30, May sed through purchase Available <http://select.nytimes.com/gst/abstract.html?res=FB0713FF395BOC728DDDAD0894DF404482> at
(access e 2007). 30, May d In re FOR OPINION ADVISORY Opinion by Dissenting Cavanagh, and poor. of minorities suppress the votes
used to Times, N.Y. March Charges, Fraud Editorial, Phony
See circles, “the political pursuit
16, partisan 2007.6 the votes of minori- suppressing fraud for is code investigating is also Congress Id. poor people.”
ties and in the Depart- over a dozen officials
allegations that positions partisan pur- their for
ment of Justice used actively supporting leg- by enacting policies
poses impose
islation would suppressing the votes
requirement purpose for Gordon, al-
minority Greg Congress eyes See voters. votes, minority Lansing State Jour- suppression
leged
nal, 21, 2007, mounting 3A. evidence May p There positions used their Justice officials Department laws to disenfranchise way designed
clear “the This Mat- Editorial, Why . . .” Scandal
minority voters . 21,
ters, Times, May N.Y. 2007.7 “There is no reported,
But as New York Times in this Id. country.” voter fraud rampant
evidence used as excuse
Instead, have been allegations these that will votes of legislation suppress pass “The Id. claims of vote elderly, minorities.
poor, usually apart fall
fraud used to these measures promote allegations that example, Id. For
on close inspection.” listed St. Louis addresses
African-American voters determined to lots have been
that were vacant into newspaper a local looked
unfounded. Id. When people “it found that thousands of allegations,
these erroneously had city lots that the buildings
lived added). Id. (emphasis as
classified vacant.” through purchase <http://select.nytimes.com/gst/abstract.html?res=F10C15FE34550C758DDDAA0894DF404482> at Available (access e 2007). May
d <http://select.nytimes.com/gst/abstract.html?res=F7081FF635550C728EDDAC0894DF404482> through purchase Available (access e 2007). May d *47 Mich 1 Dissenting by Opinion Cavanagh, J. majority position by seeks to buttress its arguing
that requirement is constitutional because there that in
evidence 46 “dead” voted people November ante n election. See at 42 110. This a snappy makes bite,
sound thoughtful but a more examination of this
allegation results finding administrative
problems and likely clerical errors are at the root people voting. example,
these “dead” For one newspa-
per article stated that it appeared that approximately
40 people who are dead cast votes in the primary 134,629
election in August 2006 out votes cast in
Detroit. Many City’s Names on may Voter Lists Press, Free
Belong, Detroit November IB. But 40 people, these 25 died within six weeks before the
election, so may those votes validly by have been cast
absentee ballot before citizen died.
But, even more importantly, article another indicated city of Detroit’s election “plagued records are Mich.,
with mistakes and inconsistencies.” Even Vote, News,
Dead February 26, Detroit Many 2006.8
voting “errors” were the result of clerical errors—
incorrect birthdates and recorded, being addresses as
well as election recording workers a votes under similar
name or voters confusing with relative. Id. The article
further stated that there no fraud, was evidence of voter
although allegations made, fraud had particu- been
larly related to absentee ballots. Id. And in articles cited Attorney General who filed brief support the requirement, problem voting with is again errors being
identified as because of problems administrative
with See, the voter rolls. e.g., Gray, Kathleen John
Bebow, Schmitt, and Ben Detroit’s Flawed Registry: through purchase Available <http://www.detnews.com/apps/ (accessed > pbcs.dll/article?AID=/20060226/METRO/602260301&templ 2007).
July 5, ADVISORY OPINION FOR Opinion Dissenting Cavanagh, Rolls, City’s Names Found on Voter Erroneous
Many Mich., 3, 2005; In Even Press, Free November
Detroit *48 Detroit voting by An The Vote, analysis supra.9
Dead it so found, errors pervasive “Clerical
News actually who many instances to determine
difficult ex- addresses, and wrong birthdates
voted. Incorrect in names and residencies; errors typographical
pired recorded
addresses; regularly are garbled spellings and Mich., In Even voter list.” city’s
and on the active kept Vote, the most common mistakes supra. “Among
Dead a vote under a workers record
occur when election their or name, parents voters with
similar or confuse Overton, Id.-, Spencer see also Article:
other relatives.” (2007). R 105 Mich L 645-647 identification,
Voter already deal with these statutory provisions
Current 168.510, issues, including MCL which
administrative a list of county monthly that the clerk forward
requires city township clerk of each or have died the
those who shall county. city township the “The clerk
within registration this with the records list
compare Id. If registration the of all deceased electors.”
cancel voting, “dead” truly people is about concern an administrative one—do what the solution is
simple voting rolls. properly purge
law requires at is not requirement issue photo identification interest
narrowly compelling to meet a state tailored in-person no voter fraud.
because there is evidence need documented
Thus, there is no evidence But an
impose photo requirement. identification re-
examination of whether Protection Clause does
quirement Equal violates interest —in stop identifying the state’s just with
9 Available at<http://72.14.203.104/search?q=cache:WoHvRHJJ6i0:www. 2007). (accessed July 5,
freep.com/newsAocway/voters>
this nonexistent in-person voter fraud. The Court
must also consider character and magnitude
burden, as well as interests affected by the burden.
Dunn, at supra 335. This Court has declared: “It can be exaggeration
stated right without that the vote is one precious, the most if precious, not the most of all our Wilkins,
constitutional rights.” at “The supra right 680.
to vote has been considered be the most vital of our rights.”
constitutional Id. at 694. Voting is a fundamen-
tal preservative because of all other rights. 370;
Yick Wo L Hopkins, US 6 S Ct
Ed 220 And this basic fundamental cannot
be infringed merely because the government seeks power
assert its over supervising elections. Kusper, at, 414
supra US 57. case, requirement deals with actual access
to the ballot box. dealing cases with direct ballot
access, such as cases that deal residency with a require-
ment aor property ownership requirement, the most level
exacting scrutiny Dunn, is required. supra at
335; Kramer, at supra Likewise, 626-627. the require-
ment goes at issue in this case to the a very heart of ability
citizen’s to vote at all. As the United States
Supreme Court has recognized, not all dealing cases
with election regulations are reviewed the same and
cases that deal with actual voting rights are quite than
different those deal that other regulations. with
See Party, Democratic at 573. supra Because California
the photo identification requirement significantly will
affect rights the voting of thousands of Michigan citi-
zens and discriminatory effects, have “applying height-
ened scrutiny to helps ensure that such limitations are
truly justified and that the State’s asserted interests are merely a pretext for exclusionary anticompetitive Clingman,
restrictions.” J., supra (O’Connor,
concurring). OPINION FOE ADVISOEY Dissenting Opinion Cavanagh, the photo assertion that majority’s
Contrary to evenhandedly “applies requirement
identification voter,” does legislation ante at this registered
every and it equally, citizens all
not affect As the that it does. claim best —to
disingenuous —at Anderson, in supra stated Supreme Court
United States (citation examine a omitted), important it at 786 ” “ to determine light’ ‘in realistic a
restriction on voters. impact of the restriction’s
extent and nature L 144; 92 S Ct Carter, 405 US
In Bullock v Court (1972), United States Supreme 2d 92
Ed primary filing requirement that a fee
determined of “the obvious unconstitutional because
elections was heavily would fall more [the] limitation
likelihood ..” segment community.. of the
on affluent the less we reality were ignore Court that “we would
The stated system unequal falls with recognize
not to candidates, according voters, as well as
weight The difficulties” “practical
their economic status.” Id. must be on those will be affected
of a restriction who See, e.g, analysis. in constitutional
considered
Lane, at 277. supra “in requirement identification
Examining photo clearly popula- indicates that distinct light” realistic substantially uniquely Michigan will be
tions requirement. photo
burdened they in which not all our citizens live life
reality is that obtaining identifi- identification, photo
have To many, causes a severe burden. solely
cation vote a person live a life which unimaginable seem
may *50 of Michi- identification, but to thousands photo no
has citizens, it is indeed a reality.
gan requirement photo identification
Proponents in practice is a standard that identification
argue photo to is needed photo identification world that
today’s i 479 Mich Dissenting Opinion by Cavanagh, room,
board an airplane, rent a hotel an open account
at a bank. But these arguments ignore that there are
segments of our population that do not have means board or rent a airplane hotel room. There are
numerous Michigan citizens who do not live a life
which is photo necessity, identification a yet this does they that subjected mean should be to obstacles
when exercising their See, fundamental vote.
e.g., I, supra at 955-956. The failure to Crawford
recognize many that Michigan citizens live life
which photo identification not needed reason recognize fail to proponents that the photo identi-
fication requirement create will a substantial obstacle voting thousands citizens. This truly
classification does not apply “evenhandedly” to
every citizen because photo those without identification
will likely the poor more and the disenfranchised.
The photo requirement will have
disparate on impact racial and ethnic as populations, voters,
well as poor voters, elderly voters; and disabled
thus, identification requirement does not
affect all citizens Just as equally. registration Lane,
scheme in supra operated inherently
discriminatorily, the statute at issue will diminish the
opportunity for thousands citizens to participate in political process. The fact that the photo identifica-
tion requirement no contains overt statement of dis-
crimination does mean requirement will not
succeed in disproportionately keeping away members of
Michigan’s See, most groups. disenfranchised e.g., Car-
rington Rash, 89, 92-93; 380 US S85 Ct 13 L Ed
2d 675 The discrimination that exists in the
photo identification requirement is dangerous because
of its fagade as a “reasonable” requirement combat fraud, but “Equal Protection Clause likewise
guards against subtle restraints *51 re FOR ADVISORY OPINION by Dissenting Opinion Cavanagh, J. Wilkins, supra at 684. denial.” outright
vote, as well as to vote cannot fundamental
Our citizens’ restriction seeks whether the abridged,
denied v Harman right. this indirectly infringe on
directly or 1177; 14 L Ed
Forssenius, 528, 540-542; 85 S Ct US
2d 50 ef- trivialize the attempt dismissive majority’s
The is citizens Michigan’s have on legislation
fect this will that ignore majority’s choice because of
unconvincing re- identification photo associated with realities that this any argument belittles majority
quirement. popula- racial and ethnic negatively will affect
legislation are arguments all other by claiming “[w]hen that
tions is claim racial discrimination resorting to a
unavailing, Ante at 45. majority Notably, substitute.” frequent voters will elderly, and disabled
ignores poor, that the by legislation. Members affected this negatively
also be organizations, nonprofit as numerous as well
Congress, in this dis- expressed the same concerns expressed
have (2002). Even the Commis- Cong Rec S10488
sent. See 148 that concerns recognizes Reform
sion on Federal Election including that requirement, photo
about the and have could disenfranchise voters requirement minorities, and legitimate.” are “serious
adverse effect on itAnd Elections, supra. in U.S.
Building Confidence identi- the effect that
certainly relevant consider en- in that have requirements have had states
fication See, e.g., requirements.
acted identification Crawford Bd, Co Election App LEXIS 7804 *7
Marion US (“The 2007)
(CA New York Times (Wood, J., dissenting) in these states that overall voter turnout
recently reported two to three percent, by about three
decreases minorities.”) (citing Christopher
times that much That Require Turnout is Seen States
Drew, Low Voter 2007).
ID, Times, February NY l 479 Mich Dissenting Opinion Cavanagh, majority
Yet the chooses to ignore information because it could
simply flippantly respond then not is raising
the dissent a hollow claim of But racism. no
matter much the majority engages figurative how
eye-rolling, majority cannot histoiy revise and it change
cannot society realities in which we five.
Unfortunately, the historical and reality current regulations
racism exists and voting have been used for
discriminatory Rights reasons. The Act 1965 Voting of Rights
the Voting Act amendments of 1982 were enacted protect against racial discrimination in voting. See 42 1971
USC and 42 USC 1973 et seq. The United States
Supreme Court has that recognized groups certain
people historically relegated have been a position
political powerlessness. 218; Plyler, at South supra Caro Katzenbach,
lina v 308-313; 383 US 803; 86 S Ct
L 2dEd experience “The of our Nation has may
shown that prejudice manifest itself in the treatment Id.;
of some groups.” Hazeltine, see also Bone Shirt v (D
F 2d Supp 1018-1023, 1026-1027, SD, 1028-1034
2004) (“[Tjhere is substantial evidence that South Dakota
officially excluded from voting Indians holding of
fice.”); Hazeltine, Bone Shirt F 1150, 1152 2d Supp
(D 2002). SD, The majority’s steadfast recognize refusal to
this fact and consider even the it possibility may that
affect real-world implications of the photo identifica requirement
tion a results in condescending response to by concerns raised numerous amici that constitu rights
tional of hundreds of thousands Michigan citi may negatively
zens be by affected this legislation. photo requirement identification may not be as
obviously tax, discriminatory poll as but its effect will photo the same.10 The requirement identification
merely a sophisticated more device that will disenfran- provides: The United States Constitution FOR OPINION ADVISORY Opinion by Dissenting Cavanagh, J. abridging their fun denying and
chise citizens our places vote, and restriction
damental his exercising a citizen’s price minimal
even a See Bul invidious discrimination.
to vote constitutes see, U.S.
lock, e.g., Building at supra Confidence (Comments Daschle, Spencer
Elections, by Tom supra (The
Overton, photo identification Yzaguirre) and Raul Commission on Federal
requirement suggested day poll “nothing short of a modern
Election Reform is
tax.”). Protection Clause of Equal state “[A] violates makes the whenever
the Fourteenth Amendment fee electoral payment
affluence of A proper at examination Harper, supra
standard.” 666. requirement demands photo
of the identification of the look the true and cumulative effect
this Court regula and the state’s overall requirement
statute’s See, e.g., Cling
tions identification. governing photo J.,
man, (O’Connor, concurring). This at 599 supra allegation simply cursory
Court must accept every requirement
that the affects photo Secretary According
one It does not. equally. 370,000
State, registered Michigan vot approximately Bell, Court
ers have identification. Dawson do not *53 Checks, ID Detroit Free Dispute into over Voter
Jumps 11 27, this Press, argue 2006. While some April the fact that hundreds higher, much actually
number by of citizens will be affected Michigan
of thousands any primary States to vote in The of citizens of the United President, electors for
or election President Vice for other for or President, Representative or in or Vice or for Senator President abridged by Congress, the United States or shall not be denied any poll [US by pay tax or other tax. reason of failure state Const, § Am U XXIV <http://nl.newsbank.com/ml through purchase at Available (ac
_search/we/Archives?s_site=freep&f_sitename=Detroit+Free+P 2007). 30, May cessed 479 MICH Dissenting Opinion Cavanagh, legislation requirement indicates that the the impediment
serious on fundamental to vote See, e.g., UAW, Michigan these citizens. State supra
at 516-517.12 attested,
As numerous amici curiae have impact the this law will have on numerous citizens will be
substantial. Jennifer M. Granholm; Governor Frank J.
Kelley, Attorney Emeritus; Detroit; city General the of
the National Association for the Advancement of Col- (NAACP)-Detroit People Branch;
ored the Michigan NAACP;
State Conference the National Bar Associa-
tion; the American Civil Liberties Union Michigan; of League Detroit; of Women Voters the American-
Arab Committee; Project Vote; Anti-Discrimination
Association of Now; Communities for Reform the Latin
Americans for Social Inc.; and Economic Development,
the Detroit League; Urban the National Conference
Community Justice-Michigan; Civil 12 study by University A of Wisconsin-Milwaukee of the driver’s voting age “[m]any license status of of those in Wisconsinfound adults do photo Pawasarat, not have either a drivers license or ID.” John Voting Population Wisconsin, Age
Driver License Employ Status of Institute, Training University Wisconsin-Milwaukee, ment and of June <http://eti.uwm.edu/Dept/ETI/barriers/ available at (accessed 2007). DriversLicense.pdf> May 30, Twenty-three percent of people aged 65 or older did not have a driver’s license or state poor populations Id. card. “Minorities and are the most likely problems.” county,only percent to have drivers license Id. one percent Hispanic African-American adults and 43 had a adults valid license, compared percent driver’s to 85 of Caucasian adults in the rest of examining young Id. at aged state. 1-2. When adults 18-24 county, only percent same young African-American adults and 34 percent Hispanic young license, compared had adults a valid driver’s percent young of Caucasian adults in the rest state. Id. at 2. Further, report by Commission Federal Election Reform percent voting age that 12 population
indicates of the lack a driver’s (Comments Building Elections, supra license. in U.S. Tom Confidence Daschle, Spencer Overton, Yzaguirre). and Raul *54 re ADVISORY OPINION FOR Dissenting Opinion Cavanagh, J. Commission; of Civil Michigan Department the
Rights Service, Inc.; Advocacy & Michigan Protection
Rights; Party; Michigan House Democratic Michigan Caucus; Democratic Senate
Democratic Caucus; Black
Caucus; Michigan Legislative Law; and Rights Civil Under
Lawyers’ Committee for (AARP) Retired all American Association of Persons about and information compelling arguments
provided requirement truly will photo
how identification citizens, be our and this information should not
affect by Michigan the amici brief submitted
ignored. Notably, clerks, are for election admin-
county responsible who state, “Voters throughout recognizes,
istration who of photo
do not have these common forms identification license, card, or photo driver’s state identification
[a likely those do are most to be who
possibly passport] older, these, turn, likely are
not drive and most be voters, brief immigrants.” lower income or Amici
and/or Appeals United Court of for the
at 7. Even the States has doubt most recognized “[n]o
Seventh Circuit ID don’t have are low on the economic
people photo who I, .. at 951.13 supra
ladder . .” Crawford present a photo requirement
The identification will
monetary logistical burden for thousands of our obtaining is a associated with
citizens. There cost card. While the
driver’s license or state identification fee can for some identification card be waived
state required who many people there are will
people, supported by the amid are further various studies concerns of statistically requirement signifi has a indicate that a identification Anderson, Timothy Protecting voting. on and David cant effect Vercelotti requirements
franchise, restricting it? The effects of 2006, chttp:// turnout, University, Rutgers available at (accessed www.eagIeton.rutgers.edu/News-ResearchAbterID_Turnout.pdf> 2007). July 1Mich Dissenting Opinion by Cavanagh,
pay only the fee. But this is not the cost associated with photo e.g., requirement. See, identification Wein- 2006) (Mo, State,
schenk 203 SW3d 213-214
(After examining obtaining the costs associated with
photo required voting, identification for the Missouri
Supreme impose Court that stated “all fees that finan- eligible vote,
cial burdens on citizens’ to
merely poll impermissible taxes, are under federal
law.”). Procuring required obtain documents a acceptable
driver’s license or other identi- state-issued money.Multiple
fication also costs documents must be monetary logistical
obtained, cost, at a cost, as well as a acquire acceptable photo
to then identification. For
example, to use a birth certificate as one three necessary
documents card, a obtain state identification
only a birth certified certificate with a raised seal copy acceptable;
or a true of the birth certificate are
hospital acceptable.14 birth This, certificates are not money just required
course, costs even more than that
outright for a driver’s license or state identification interesting important
card. anBut and fact to note is photo required request copy that a person
one’s birth So a who needs a birth certificate. present certificate to obtain identification must
photo identification to receive birth certificate. country
Further, documents issued another English
are not written in must translated before
they only acceptable can be used. Translations are from organizations, college,
a limited number of such aas may experience particular Older African-American citizens difficul many they ties as were never birth issued certificates because were born Leighton Ku, Survey Ross, Broaddus, home. Donna C. and Matt Jeopardizes Coverage Indicates Act Reduction Medicaid 3 to 5 Deficit Citizens,
Million Budget Policy Priorities, Center on and revised Febru 17, 2006, ary <http://www.cbpp.org/l-26-06health.htm> available at (accessed 2007). study June One found that of African-Americans Vs adults in 1939 Id. born and 1940 lacked birth certificates. re ADVISORY FOR OPINION Dissenting Opinion Cavanagh, J. business, or translation-related agency,
government detailed information provide the translation must spend must only person Not a the translator.
about travel to necessary documents to then
money get get necessary photo Secretary of State office
identification, govern- must navigate but a person doing time so.15 spend system
ment again very govern- Michigan county clerks — administer “It recognize, who
ment officials elections — these for obtain- examining requirements clear from very be a identification card it will
ing personal Amici brief at 8-9. As the consuming matter.”
time note, be rec- county further “It must clerks these voters do not drive very that the fact that
ognized *56 to the it more for them to travel make difficult
may are obtained.” where the identification cards
locations photo or state And to obtain a driver’s license
Id. at 7. an office of card must travel to person
identification a See, many MCL For e.g., 28.291. Secretary State. so, may which also mean
citizens, taking the time to do will create a substan- pay, off work without
taking time right citizens’ to vote. exercising to
tial burden proponents photo appears lost on the
What encouraging citizens requirement
identification govern- objective, and our is an essential state
to vote passing not trying promote voting, to
ment should may required Secretary Traveling a of State office distance to citizens, many including rural those in
indeed be too burdensome for only Secretary County example, Chippewa has one of State areas. For locations, Secretary at available State office office. <http://services.sos.state.mi.us/servicelocator/branchofficelocator.aspx> 2007). 1,561.06 (accessed 2, County square July Chippewa occupies Yet significant may miles, person have travel a means that a to which get United States merely needed to vote. the identification distance Bureau, <http://quickfacts.census.gov/ at available Census 2007). (accessed July qfd/states/26/26033.html> 479 Mich Dissenting Opinion Cavanagh, actually
legislation participation by that will discourage
throwing up unnecessary “[T]he roadblocks. constitu- preserved by strong, participa-
tional order must be process.” democratic
tory Party, Democratic California (Kennedy, J., see Build-
supra concurring); also (Comments Elections,
ing U.S. supra Confidence Daschle, Overton, Spencer
Tom and Raul Yzaguirre)
(“Election empowerment, reform must be about Raising impediments
disenfranchisement. needless
voting creating requirements artificial to have one’s backward.”).
vote counted are steps photo But requirement yet
identification another obstacle that a proceeds
citizen must overcome as he along path right
exercise his fundamental to vote. Now that citizen likely
is less to exercise his fundamental right to vote photo
because of the requirement. identification And exception affidavit citizen even knows its —if helpful
existence —is not of the because harassment and may
intimidation that a through face the chal- process.
lenge
Merely being allowed into a polling place does not
mean that a citizen’s vote has been protected.
See, e.g., Saylor, United States v 322 US 387-388;
64 Ct L Ed S A citizen’s protected
vote must also be throughout the challenge
process. The burden of the require-
ment must be realistically light viewed in what
means to the citizen who does not have photo identifi- but still
cation wants to vote. The burden for a citizen *57 photo
without is “simply” identification a matter
signing affidavit and then voting. Contrary to the belief,
majority’s county clerks, will who
actually election, admit, administer yet “It is not
clear whether an is a affidavit sufficient for a means
voter without photo identification to attest that he is
who he purports be but lacks the requisite identifi- OPINION FOR ADVISORY Dissenting Opinion Cavanagh, J. majority presents at 10. While Amici brief
cation.” inconvenience, insignificant as an process
the affidavit the actual burdensome to much more actually
it is
voters. makes it much more identification photo
The lack of statute because the challenged a will be
likely that voter in relation to challenge process references the
explicitly During the MCL 168.523. the affidavit. signing
those that a possibility the distinct there is
challenge process, if an election to vote be denied may
citizen indicate the citizen’s answers believes
inspector chooses or if the citizen a elector qualified
that he is not citizens with disabili- For some the affidavit. sign
not to sign difficult to or under- be too
ties, may the affidavit likely scenario Howéver, unfortunately, another
stand. in some be used will challenge process
is citizens who seek and intimidate to harass
situations in- explicitly The statute to vote.
exercise their without voting is to a citizen who challenge
vites “being that a citizen by stating identification
photo required to vote without
allowed Id. challenge ....” subject this subsection
under voting are subjects those who challenge process
The intimidation, and delay, identification to photo
without have than those who greater degree to a
harassment chal- being a citizen Notably, identification.16 unchallenged side until after to one
lenged must “stand challenge process harass majority argues that the use of the ante at to do so. See because it is a misdemeanor be deterred
voters will vote, yet impersonate person to felony another 44. But it is give fact that this criminal majority apparently credence to the does not Notably, again in-person I already fraud. to deter voter penalty serves fraud, in-person there while no evidence of point that there is out polls. amici brief of having at the See been harassed evidence of voters al, People et the Advancement of Colored the National Association 16-17, 24-25; 3-6. exhibits *58 l Mich Dissenting Opinion Cavanagh, J. vote, had an his opportunity
voters have when case
shall he taken MCL up disposed and of.” 168.728. [then]
Waiting long periods polls uncommon, for at is not
and voters challenged they now who are because do not indefinitely
have identification must wait photo longer the challenge. practical,
to resolve This real-world effect substantially
can penalize be used to and harass those photo
without identification.17 penalty imposed
But a cannot be on a citizen who
chooses to exercise his to vote because right merely he photo Dunn,
does not have identification. See supra at
341, Harman, at 540. citing “To the extent that a supra right debased,
citizen’s to vote is he is that much less a Reynolds,
citizen.” at 567. As Court supra this has
recognized, the fundamental to vote cannot be left
to the whim or impulse Wilkins, election official. It
supra beyond at 677. certainly dispute that certain
voters in our country even our state —have been —and
intimidated and to keep harassed those citizens from See,
voting. e.g., Note: Eradicating racial discrimina-
tion in voter registration: Rights under remedies
voting 1982, act rights amendments 52 Fordham L R The on Federal Commission Election Reform
reports that during elections, the 2004 there were
“improper requests ID” for voter and there were re- voter
ports “of intimidation and suppression tactics.” Building Elections,
See in U.S. supra. Of Confidence 55,000 calls made to a MYVOTE1 hotline on election 2004,
day in 4.9 percent of calls were about coercion
and intimidation percent and 43.9 of the calls were
about registration poll Notably, issues and access. elec- 17 See, Berry, e.g., money Comment: Take the and run: Lame-ducks pass “quack” identification, Mercy 74 U Det L R (1997) Gerritt, (citing Long System Dated, Jeff Waits Prove Vote Detroit 1996) (The Press, long polls
Free November wait was so some out.). in, around, some voters walked turned and walked ADVISORY OPINION FOR Dissenting Opinion Cavanagh, by politi- can be appointed challengers
tion an added incentive may provide which parties,
cal and a challenge If a is successful made.
challenges to be no from appeal there is unqualified, deemed
citizen is his fundamental decision, denial of so a citizen’s identifi- See MCL 168.729. is absolute. *59 now challenge process and the requirement
cation do not have leave those who
again challenged our officials as the whim of election
at time length indefinite to wait an required
citizens are right to vote. exercise their fundamental
merely to numerous statutes already there are
Notably, few, felony a name a just fraud. To
criminalize voter to vote or at- person another falsely impersonate
to try to induce a vote, felony it is also a to and
tempt to vote or at- person another impersonate
person 168.932a(a). felony It is a assume MCL
tempt to vote. 168.932a(b). It is name to vote. MCL false or fictitious
a material to make a for an elector
a misdemeanor by asked answering question that is false
statement affidavit. in a registration clerk or
a clerk or assistant 168.499(1). an untrue give And it is perjury
MCL challenged. a material matter when concerning
answer 168.729.
MCL fraud, voter as that criminalize
Given these statutes scheme that statutory comprehensive as the state’s
well the state’s actions voting,
manages aspects all certainly not nar- identification are
mandating photo Dunn, at supra éven reasonable. See
rowly tailored or Any Party, supra 437.
345-346; Bay Democratic Co must examine voter fraud preventing
concerns about completeness. determine its current system Dunn, residency durational
Wilkins, at 687. supra necessary, it had once been assuming even
requirement, compre- the state’s because of required no longer
was 479 Mich Dissenting Opinion Cavanagh,
hensive statutory scheme. Similarly, Michigan’s statu-
tory scheme is comprehensive when dealing with voter
regulations. For when example, a citizen appears at the vote,
polls to the citizen must complete application includes signature his and address. MCL
168.523(1). If registration used, lists are then the
citizen must provide his date of birth or other informa-
tion that appears on the voter registration Also, list. Id.
if the qualified voter file is available at the polling place,
the election official must compare the signature on the application
voter’s that was completed at the polling
place with the signature in the qualified voter file. Id.
There are also numerous laws that address the
qualifications voters, MCL 168.492; the contents of
registration affidavits, 168.495; MCL ascertaining
whether a voter already registered, 168.505; MCL
changes of a residence, voter’s 168.506, MCL MCL
168.507, 168.507a, MCL 168.507b; MCL verifying
the correctness of registration records conducting a canvas,
house-to-house 168.515; MCL regis- even
tering voters jail, confined in 168.492a, MCL to name
just Thus, a few. there are “a variety of criminal laws
that are more than adequate to detect and deter what-
ever fraud may Dunn, be feared.” supra at 353. When
there is such a comprehensive statutory design to
prevent, address, and punish in-person fraud, voter
imposing photo a requirement identification that will
restrict our citizens’ fundamental right to vote is un-
necessary and certainly not the least restrictive means prevent
to voter fraud. See id. at 353-354.
Further, the photo identification requirement will do
nothing actually prevent in-person fraud, voter even
if an incident were to occur in the future. The majority
makes much of the exception to photo identification
requirement that allows a citizen sign an affidavit re ADVISORY OPINION FOR Dissenting Opinion by Cavanagh, says he he is. This affidavit that he is who
attesting identifi- showing photo to vote without person
allows a the law and willing to break person But if a
cation. fraud, this affida- signing then voter in-person
commit A occurring. the fraud from nothing to deter
vit will do felony being a committing to risk willing
person fraud is not in-person commit prison
sent to sign piece paper. a by having to be-affected
going intent on no to one swearing is obstacle
“[F]alse States Dunn, at 346. As the United supra
fraud . . ..” striking down dura- recognized Court when
Supreme “The nonresident intent residency requirement:
tional fraud will as and effec- committing quickly election requisite a resident for the that he has been
tively swear simply that he was of time as he would swear
period swearing an effective
resident.” Id. The oath “becomes tell the truth and only obstacle to residents who
voting Likewise, Id. at 346-347. purposes.”
have no fraudulent affected will be who will be only citizens because stay away polls from the
legitimate voters who photo there is an to the
they exception do not know fear or those voters who requirement
identification through and intimidation
they will suffer harassment challenge process.
the affidavit IS NOT EVEN
III. THE PHOTO IDENTIFICATION REQUIREMENT JUSTIFIED BY A REASONABLE RATIONALE exam- requirement if the identification photo
Even standard, identification photo
ined under a lesser nonetheless, is an unconstitutional burden
requirement nondiscriminatory a reasonable and
because it is not See important state interest. justified
restriction
Burdick, government’s 434. The interest supra must requirement
mandating See the restriction. sufficiently weighty justify
Timmons, government’s But here the at 365. supra *61 1 MICH Dissenting Opinion Cavanagh, weight
interest has no because there is absolutely no
evidence that a with problem in-person voter fraud even
exists. join my
I in colleagues prevent their desire to voter
fraud, I am unwilling but to do so at cost. No matter many
how times the majority argues that the photo
identification requirement necessary prevent vote
dilution, change does not the fact that there is no
evidence of in-person Merely voter fraud. making the
claim does not make it so. When there is no evidence of
in-person voter fraud that will be corrected
identification requirement and no credible evidence of
this problem existing nationwide, I cannot join the in
majority finding that this requirement is constitu- (October
tional. Cong See 148 Rec S 16, 2002);
see also Common Cause/League Women Voters (ND Inc v Georgia, Billups, 439 F 2d Supp 2006).
Ga, “There is nothing the Constitution which
permits the Legislature, under purify desire to
elections, to impose any conditions destroy which will
seriously impede
enjoyment
of the elective fran-
chise.” Attorney General v Bd
City
ofCouncilmen of
Detroit,
213, 216;
58 Mich
even when pursuing legitimate interest, a may State
not choose means that unnecessarily restrict constitu-
tionally protected liberty. regulation Precision of must
be the touchstone an area closely so touching our (in-
most precious Anderson, freedoms.” supra omitted).
ternal quotation marks and citations
It is not reasonable to impose photo identification
requirement when the alleged interest is nonexistent fraud,
in-person voter especially when the requirement
will significantly impinge rights on the of thousands of
Michigan’s citizens. The majority cannot dismiss the
argument that there is no evidence in-person In re ADVISORY OPINION FOR *62 Dissenting Opinion Cavanagh, J. certainly just by stating matter. It does not that it
fraud fundamental have their citizens will when our
matters voting
rights the re- ascertain whether To restricted. to factor warranted, it is indeed essential is
striction in-person analysis voter fraud that no the fact
into A bald assertion to exist. shown
has been in a restriction interest asserted state’s
insufficient—a relationship plausible some sort of
must bear place its citizens. See on will the restriction
burden (Stevens, dissenting). supra J.,
Timmons, at 374-375 way open “[i]f drastic to it a less State has
And may
satisfying legitimate interest, not choose a its broadly
legislative the exercise of that stifles scheme supra personal Anderson, liberties.”
fundamental omitted). (internal quotation and citation marks being requirement photo identification problem is indeed to a nonexistent as a solution
touted imaginary an because it addresses
unconstitutional undermining significantly
problem and burden- while rights.
ing citizens’ constitutional our IV CONCLUSION vig- government that the The constitution demands right
orously protect to vote. citizens’ fundamental our right to vote to exercise their must be able
Our citizens that are unconstitutional encumbrances
without Today’s limiting right. practical this effect
have reality ignores alarming because it
decisionis Leg- requirement and validates rights shortsighted attempt to restrict the
islature’s ill-advised the effect that this citizens. It trivializes
our many poorest
legislation cases, and, in our will have on appears from a It to stem citizens.
most disenfranchised gives rights government its citizens
belief that the away rights and with on whim can take these Mich 1 Dissenting Opinion by Kelly,
flimsiest of excuses. But a significant of our impairment
citizens’ fundamental to vote requires justifica-
tion. While this Court has abdicated responsibility its
require justification, I believe that our citizens Thus,
must demand more. I respectfully dissent.
KELLY,J. This (dissenting). case involves the constitu-
tionality of mandating registered voters show photo-
graphic identification before being allowed access to the
voting booth. PA Under 2005 if a voter is unable to required identification,
show the he or she sign must swearing
affidavit that fact order to vote.
This new law impinges fundamental
vote. today, Before this Court consistently applied a scrutiny
strict analysis regulation law or that
impinged right. But, on that in upholding the constitu-
tionality PA the majority announces that scrutiny
strict is now the wrong test. on the Relying
United Supreme States Court’s decision in Burdick
Takushi,1 it concludes that a number of this Court’s
past rights voters’ longer decisions no are good law.
Because I I disagree, respectfully dissent.
First, Burdick did signal change in the law. It
was simply clear articulation of the rule that emerges
from synthesizing earlier United States Supreme Court in this area. Burdick also did not overrule past
decisions
decisions of either the United States Supreme Court or
this Court. A proper application of the law declared in
these decisions convinces me that
stitutional. It is a serious error Michigan for the Su-
preme ignore Court to this long-revered caselaw.
Second, majority of this Court has uncritically
adopted what
it believes
a rule mandated by the
428;
504 US
112 S Ct
federal constitution. Court the functional States Supreme
on the United majority’s The our state constitution.
ability to amend mistakenly believes adopt lockstep what
decision constitutional standard renders our state
is the federal And it a failure of nugatory. represents
provisions duty. its constitutional
Court to fulfill and the Michigan
In reliance on the Constitution it, infringements I hold that interpreting
caselaw would to vote that cannot withstand the most
on the scrutiny are unconstitutional. Because 2005
exacting narrowly infringes
PA 71 on the to vote and is not interest, compelling governmental
tailored to achieve a the federal and the
it is unconstitutional under both
state constitutions.
I. THE FACTS considering that we are here has legal question 168.523, § Michigan in MCL 523 of the genesis its Law,2 enacted Legislature
Election which was 523(1) requires
identify himself or herself card issued to
presenting an official state identification Acts pursuant individual to Act No. 222 of the Public Michigan being sections 28.291 to 28.295 of the Laws, Compiled operator’s or license issued chauffeur’s Code, pursuant
to that to the Vehicle individual 1949, being
Act of the Public Acts of sections 257.1 No. 300 *64 Michigan Compiled Laws, other or
to 257.923 of
generally recognized picture card .... identification 523(1) provides:
Section also not have an official state identifica-
If the elector does card, required in operator’s chauffeur’s license as
tion or MCL 168.1 et seq. 479 Mich Dissenting Opinion by J. Kelly, subsection, recognized generally picture
this or other iden- card, sign
tification the individual shall an affidavit to that inspector
effect before an election and be allowed to vote as However, provided being
otherwise in this act. an elector required to vote without
allowed the identification under subject challenge provided subsection in as section
727.
Pursuant to these before requirements, being given a
ballot, registered each voter would have identify (1)
himself or herself presenting an official state (2) card, operator’s
identification an or chauffeur’s (3)
license, generally recognized or another picture
identification card. If the voter did not have the re-
quired identification, sign voter would have to swearing identity. affidavit to his or her If the voter
complied, vote, he or she would be allowed to but would subject 168.727, to challenge under MCL in which
case, the right might to vote be denied. It is not clear
what would if a happen registered voter had photo
identification but in possession was not of it at the
polling place. §
Before requirements effective, of 523 became
then-Attorney Frank Kelley General evaluated it
pursuant to MCL 14.32 and found that the photo requirements violated Equal Protec-
tion Constitution, Clause of the United States US
Const, OAG, 1997-1998, Am XIV No 1p (January 1997). result, § As a implemented 523 was never
enforced. later, years
Nine
the Legislature enacted
ments that were the version of 523 enacted
PA 583. In February year, of the next the Michigan Representatives, by resolution,
House of asked this
Court to issue an opinion constitutionality on the *65 83 re FOR ADVISORY OPINION Dissenting Opinion Kelly, J. (Resolution No. Journal PA 71. See 2006 House 17
2005 2006). 474
199, February granted request. We (2006).
Mich 1230 us is the consequence, question a before
As argument of PA It is
constitutionality beyond 71. 2005 requirements photographic infringe on and fundamental paramount
the act Nonetheless, majority a of this Court has to vote.
right pass these will requirements
decided that constitutional a only if can minimal level they
muster withstand follow, I I do not For the reasons that
scrutiny. agree. hold that the the act violate both requirements
would
the federal state constitutions.
II. THE STATES UNITED CONSTITUTION Supreme
The United States Court has stated fundamental. right occasions that vote is
many Celebrezze, 780; 1564; US Ct Anderson v 460 103 S
E.g., 533; 84 (1983); Sims, v Reynolds L Ed 2d 547 377 US
75 (1964); 12 L v 1362; Hopkins,
S Ed 2d 506 Yick Wo Ct (1886). 356; 1064; right S Ct L Ed 220 “No
118 US 6 30 having country free than that of precious
is more in the election those who make the laws under
voice
which, citizens, rights, live. even good as we must Other basic, illusory if the to vote is right
the most are Sanders, 1, 17; 84 S Ct 376 US Wesberry
undermined.” (1964). is so right L 2d Because this
526; 11 Ed consistently
precious, applied federal have courts scrutiny demanding governmental level of
most voting access to the booth. that interferes with
action 995; Blumstein, 330; 405 US S Ct
See, Dunn v e.g., Dist (1972); v Union Free School
L Ed 2d 274 Kramer L 1886; 23 Ed 2d 583 US S Ct
No acknowledges vote majority
The that, it has be- importance. But decided
fundamental
cause of the United States Court’s decision in applies
Burdick, gov- a more relaxed standard now
ernmental measures that limit the to cast a ballot. majority badly mistaken. A. BURDICK v TAKUSHI *66 prohibition At issue in Burdick was Hawaii’s voting. Burdick,
write-in
election write-in votes were Id. at plaintiff claiming prohibi-
436. The suit, filed that the rights
tion violated his under the First and Fourteenth
amendments. Id. at 430. applied
The Court stated the standard to be
analyzing voting regulation whether a unconstitution-
ally infringes rights: on these
A considering court challenge a to a state election law weigh
must “the magnitude character and of the asserted injury rights protected by to the the First and Fourteenth plaintiff
Amendments that the against seeks to vindicate” precise
“the put interests forward justifica- the State as
tions imposed for the rule,” burden its taking into
consideration “the extent to which those interests make it
necessary plaintiffs to burden rights.” [Id. at 434 (citations omitted).] explained rigorousness
The Court that of the scrutiny depends degree voting
Court’s on the to which
restrictions burden the to vote. If that severely restricted, restrictions, to be constitu- narrowly
tional, must be drawn so as to advance a state compelling importance.
interest of But, Id. when the “ impose only restrictions tory ‘reasonable, nondiscrimina- upon
restrictions’ the First and Fourteenth rights important
Amendment voters, ‘the State’s
regulatory generally justify’ interests are sufficient to (citations omitted).
the restrictions.” Id. The Court FOR ADVISORY OPINION Opinion by Dissenting Kelly, J. did not violate prohibition Hawaii’s
found that it created a rights constitutional because
plaintiffs legitimate the state’s promoting
minor burden while Id. at 430.
interest. concluded that
A of this Court has majority shift in the law. in Burdick worked a dramatic
decision a fact, repudiated previous that Burdick asserts Clause Equal of the federal Protection
construction erroneous.
that was The case broke no has misread Burdick. majority signal rule or Rather than create new ground.
new law, a rule that simply in the Burdick announced
shift the United States Su- decisions of
synthesized past test, articulated, already in one estab- Court
preme legal principles.3
lished claim, the federal consti
Contrary majority’s every regulating law required has never
tution scrutiny. E.g., Jenness must withstand strict
elections L Ed 2d 431, 440-442; 91 S Ct
Fortson, 403 US Anderson, 460 US (1971);4 Storer, 730;5 415 US *67 emerges that the first case to articulate the standard Burdick was not voting Supreme blending decisions in the area of United States Court from originated balancing seems to have in
rights. The
test set forth in Burdick
(1974),
Brown,
724;
1274; L
American
94 S Ct
39 Ed 2d
and
Storer v
415 US
(1974).
1296;
White,
767;
In
Party
at 788.6 the federal constitution has consis
tently interpreted been to require application of a strict
scrutiny analysis if only to right vote has been
subjected to a severe restriction. Cases both predating
and postdating Burdick illustrate that statutes an
impair
individual’s
to
right
ballot,
cast a
as 2005 PA
s.7
does,
are severe restriction
pass
challenges
specific provisions
on constitutional
of election laws
provides
litmus-paper
separating
no
test for
those restrictions that are
valid
Equal
from those that are invidious under the
Protection Clause.
self-executing
The rule is not
judgments
and is no substitute for the hard
context,
that must
others,
very
be made. Decision in this
as in
much a
degree
‘matter of
....’”
to Burdick. challenges specific provisions Constitutional of a State’s election by any laws therefore cannot be “litmuspaper resolved separate test” that will Instead, valid from invalid restrictions. challenge by court must analytical resolve such a process parallels ordinary litigation. its work It must first magnitude consider the character and injury of the asserted rights protected by the First and Fourteenth Amendments plaintiff that the seeks to identify vindicate. It then must precise put evaluate interests forward the State as justifications imposed by for the burden passing its rule. In
judgment,
only
the Court must not
legitimacy
determine the
strength
interests,
of each of those
it also must consider the
extent to
necessary
which those interests make it
to burden the
plaintiff’s rights. Only
weighing
after
all these factors is the
reviewing
position
court in a
challenged
decide whether the
provision
(citation
[460
unconstitutional.
US at 789
omit-
ted).]
7 A
opinion
closer look at the Burdick
majority’s
reveals the error of the
analysis.
right
at issue in
right
the instant case is the
to cast a ballot.
right. Dunn,
It is a fundamental
B. HARPER v VIRGINIA Virginia’s Supreme Harper, found Court requirement
poll state elections violated tax
Equal clear US at 666. It made Clause. 383 Protection requirements greatly to related not disfavors intelligently ability participate in electoral to
one’s right deprive
process to to one of the and that threaten requirements issue, are at 668. When such Id. at
vote. degree vote declared, which the to Court regulation impaired If the is irrelevant. Id. governmental compelling
narrowly a to achieve tailored Equal impairment will a violate
interest, even small Clause. Id.
Protection FREE SCHOOL HIST NO
C. KRAMER UNION living
Similarly, his Kramer, bachelor with in a challenged
parents limited the New York law. It eligible elections to vote schooldistrict
individuals parents property the district and within
owners public Kramer, enrolled in the local schools.
children at 622. The Court considered whether
395 US Id. at Amendment.
limitations violated the Fourteenth challenged “if a state The Court concluded that
626. grants fide to vote some bona
statute requisite age citizenship denies the
residents of others, must whether the Court determine
franchise necessary promote compelling are exclusions Id. 627.
state interest.”
D. DUNN v BLUMSTEIN Supreme Dunn, States Court the United
And residency requirement. 405 down a durational
struck
1079;
S
US at 333. found that citizen in constitutionally protected right participate
tion has equal any
in on an elections basis with other citizen in jurisdiction. right may And
the Id. at 336. before that purpose
restricted, the of the restriction and over-
riding by it interests served must meet constitu- close scrutiny. scrutiny
tional Id. The found that Court strict required ‘placets] “is statute that condition on ” right quoting vote.’ exercise Id. at Carter, 134, 143; 849;
Bullock v 405 US 92 S 31 L Ed Ct (1972).
2d 92 majority ignores pre-Burdick
The each these cases signaled
because it believes that Burdick a shift clearly
law.But Burdick did than no more articulate the
law as it existed at the time it was written. It did
nothing prior to overrule And, decisions.9 the United Supreme post-Burdick
States Court’s in Bush decision
v Gore10confirms that a restriction works a severe subject scrutiny
burden and to strict if it interferes right equal
with an individual’s an cast ballot.
E. BUSH v GORE Bush, the Court considered whether Florida’s manual recount of ballots violated the Fourteenth qualified legal
Amendment. standard for what as a county county.
vote differed from Bush, 531 US at deciding case,
103. In the Court noted that one right
source of the fundamental nature of the to vote equal weight
“lies in the accorded to each vote 9 Yet, majority repudiated the members of the find that Burdick Equal by erroneous of the construction Protection Clause. I am baffled they unlikely highly how at this arrive conclusion. It seems to me that our legal most revered institution announce a would dramatic shift in the law suggesting limiting existing precedent.
without at least it and 98; 531 US S Ct L Ed 2d ADVISORY OPINION FOR Opinion Dissenting Kelly,
equal dignity Because voter.” Id. at 104. owed to each protected
“[t]he initial than the to vote is more protection applies e]qual franchisee, as of the
allocation granted Having once exercise.
well the manner of its may equal terms, not, to vote on State per- arbitrary disparate one treatment, value
later Ultimately, the another.” Id. over that of
son’s vote of votes was unconstitu- held that recount
Court permitted an a clear standard
tional unequal the lack of because Id. at 110.
evaluation of the ballots. factually distinguishable
Though the instant from only post- it is the
case, Bush is relevant because Supreme Court decision involv- United States
Burdick *70 right equal
ing cast an ballot.11The individual’s an peremptorily state interests dismissed the
Bush Court In recount. so asserted and struck down the
that were scrutiny
doing, strict standard.12 it had to have used a
Hence, stands as reassurance that the Bush decision scrutiny applied pre-Burdick that a strict
the decisions
analysis infringements right a to cast a of voter’s good are still law.13
ballot 11 Burdick. The fact that Bush does not Bush does not even mention Burdick is further Burdick is that not the substantiation land discuss majority the have us
mark decision that would believe. 12 Bush, Supreme explicitly level the Court never stated what of constitutionality However, scrutiny reviewing the recount. it used the of summarily after the fact that the Court found the recount unconstitutional dismissing prompting that the Court the interests the recount indicates was Blackwell, 843, v utilizing scrutiny review. See Stewart 444 F3d 862 strict (CA Symposium: presidential elections: Hasen, 6, 2006); The law Issues Florida, equal protection the v Gore and the wake 2000: Bush future of elections, 377, law in 29 Fla St L R 395-396 U 13 post-Burdick finding that federal decisions strict For additional directly right scrutiny regulations to cast applies to that burden the a (CA 1993) Davis, 4, Greidinger 1344, ballot, see, v e.g., 988 F2d 1354 scrutiny applies registration scheme (finding to a voter that that strict public of the voter’s conditions a voter’s to vote on disclosure Co, Party number); Republican Arkansas v Faulkner security 49 social Mich 1 479 by Dissenting Opinion Kelly, J. THE IDENTIFICATION REQUIREMENTS
F. PHOTO time, Secretary
At of State that estimates
370,000 Michigan voters do not have registered photographic
identification.14 The identification re- of 2005 PA mandate that individu-
quirements these photographic
als obtain identification or an affida- sign they
vit can teaching before vote. United Kramer, Supreme
States Court’s decisions in Harper,
Dunn, Bush, and their progeny15 require- that these
ments work severe burden on the vote.16 right to voter,”17 “equal dignity
Because owed to each [is]
most
test
“exacting
required
any
for
statute that
(CA 1995)
8,
(Finding
requirement
F3d
1298-1299
that
that
political parties
primary
subject
pay for
conduct and
was
elections
scrutiny.
forcing many voters,
strict
This is because it had the effect of
primary,
Republican
who wished to vote in the
either in the
vote
all.).
primary
Democratic
or not at
14 Bell,
Checks,
Jumps
Dispute
D.
Court
Over
Into
VoterID
Detroit Free
2006)
(April
Secretary
(quoting
spokeswoman Kelly
Press
of State
Chesney).
(1973)
Kusper Pontikes,
51;
303;
E.g.,
94 S
2d
US
Ct
38 L Ed
(Striking
party
impaired
affiliation
down
statute
to vote
preventing
primary
voting
individuals
in a
who had voted
from
in another
party’s primary
nearly
years.
two
Less drastic
existed
alternatives
involved.);
289, 298;
Stone,
satisfied the state’s interest
Hill v
421 US
95 S
(1975)
(Striking
voting technique
Ct
ballot. The of been has never as fundamen right. Clements, But, demonstrate, tal 457 US at as the 963. cases I cite right impaired, when an individual’s to cast a ballot is the United States Supreme uniformly scrutiny applies. Court has held strict 17Bush, US at 531 104. 91 ADVISORY OPINION FOR Opinion Dissenting Kelly, right of on the exercise the a condition ‘placets] ” Bullock, 405 Dunn, (quoting US at US 405 337
vote.’ added). 143) ballot box to the Where access (emphasis requirements, of qualifications because impeded
is (2) (1) Harper, property- tax in the poll the
such as (3) the Kramer, in durational
ownership requirement (4) Dunn, or iden- photo in
residency requirement case, requirements this
tification affidavit exacting scrutiny applied. of must be
most
level
OPTION
G. THE AFFIDAVIT OF PA concludes that is because majority
The level that a minimal of option
includes affidavit appro- photo requirement
review of However, option the affidavit itself interferes
priate. individuals identifica- lacking
with the attorney general
tion cast a assistant who ballot. constitutionality act
argued support if, asserts, majority Even as the point.
concedes obstacle, it is an an affidavit were a minor
signing a select imposed only group
obstacle qualified
otherwise voters. way in such a as to infringe law classifies
“[W]here rights, height-
constitutionally protected fundamental scrutiny Equal under Protection Clause is
ened
required.” Attorney Soto-Lopez, New York General 2317; 2d S L Ed
US 906 n 106 Ct only a select
And a restriction that burdens the is sufficient of citizens to access ballot
group under the federal consti- scrutiny strict review
trigger 670;18Wesberry, 376 See, 383 US at e.g, Harper,
tution. rights under are asserted “[W]here fundamental liberties Clause, might
Equal or restrain classifications which invade Protection carefully closely he scrutinized and confined.” them must
92 Mich l 479 Opinion by Dissenting Kelly, J. 17-18;19 Keeton,
US & at Nowak Constitutional Law
(5th ed), the Burdick 14.31, § As Court p 866.20 itself
stated, only a lower standard review will apply “ ” Burdick, 504 ‘nondiscriminatory restrictions.’ US at (citation omitted). only Because individuals with-
out be photo subject will affidavit
process, requirements clearly these discriminate be-
tween individuals with identification and indi- Therefore,
viduals such without identification.21 con-
trary position majority, to the option affidavit nothing
does to reduce level of scrutiny applies
to
H. THE RELEVANTCOMPELLING GOVERNMENTALINTEREST scrutiny
When strict “a applies, heavy justi- burden of State,
fication on the and... be closely statute will in light Dunn,
scrutinized its asserted purposes.”
US at
343.
state must demonstrate that
618, 634; 89 S Ct 22 Ed L 2d 600 (emphasis
omitted); Kramer,
interest be can the state must use least means
restrictive to advance that interest.
[T]he State unnecessarily cannot choose means that constitutionally activity.
burden or restrict protected Stat- people “Our Constitution way leaves no room for classification of in a unnecessarily abridges right.” right, “Because vote is a fundamental classification defining ability meet, to exercise the must under a strict scrutiny review, equal protection guarantee the dictates of the before the Court can sustain the measure as constitutional.” 21 “Discriminate” is “to defined as make a distinction favor of or against person group person on the basis of the or class to which
belongs, according rather than to merit.” Random House Webster’s College Dictionary FORADVISORYOPINION Dissenting Opinion Kelly, rights must drawn with affecting constitutional
utes legiti- to serve their
“precision,” and must be “tailored” other, ways if are reasonable objectives.
mate And there constitutionally goals lesser burden those with a
achieve way activity, may not choose the
protected a State *73 all, it choose “less
greater interference. If it acts at must (citations omitted).] {Dunn, US means.” 405 at 343
drastic forth for the
The has been put interest that prevent requirements they is that will
identification is prevention clearly of voter fraud
voter fraud. But, there is no governmental objective.
legitimate significant that voter fraud is a present
evidence at enjoys In an Michigan. “Michigan in fact
problem fraud-free.” Co history relatively Bay
election that (ED Land, 404, F 2d 437 Party Supp
Democratic 6930). 2004)
Mich, (citing Attorney Opinion No General very nationally,
And fraud as appears be low
well.22 Callahan, Analysis Securing An See & the Vote: Election Minnite Action, 2003), (Demos, and at: A Ideas
Fraud Network (accessed <http://www.demos.org/pubs/EDR_-_Securing_ the_Vote.pdf> 2007). 11, legal July and after After a review news databases that, officials, state authors found between interviews with election 2002, problem” “very fraud was rare” and a “minor election 4, “rarely 17. that affects election outcomes.” Id. Urbina, Effort, Lipton Evidence See also E. & I. In 5-Year Scant 2007). 2007) (accessed Fraud, 16, (April July Times In the Voter NY election, Department of presidential Justice aftermath of the investigation
began aggressive probe That of voter fraud. revealed organized “virtually any evidence of effort skew federal elections.” no argued fraud have been advanced have that the accusations of voter Some rights suppress of some vote. There evidence to mask efforts Gordon, supports argument. See G. 2006 Missouri Election was that 2007) GOP, Newspapers (May McClatchy Ground Zero for <http://www.realcities.com/mld/krwashington/news/nation/17168096.htm> (accessed 11,2007). And, opponents July it has been advanced of2005 dissent, Cavanagh persuasive argument makes a 71. his Justice PA In groups requirements’ potential negative certain regarding effects on
voters. 479 Mich Dissenting Opinion by Kelly, J. fundamentally,
More are many types there of voter only
fraud.
place impersonation fraud involves the of a regis Yet,
tered arguing voter. those of the photo favor requirements
identification have come forward
with documented instances of in-person voter
fraud.23
Accordingly, the photo requirements
are a a problem. solution search of This is a particu-
larly matter given they serious affect and hinder exercise the fundamental constitutional right to
vote. order for the restrictions to withstand chal-
lenge, a constitutionally sufficient compelling govern-
mental interest would have But shown. such an
interest is conspicuously absent in this case.
I. THE LEAST RESTRICTIVE MEANS assuming
Even a constitutionally justifica- sufficient
tion shown, could be government *74 the employ must
least restrictive means of furthering that interest. The
photo identification and affidavit requirements are not
the least restrictive goals means. The PA of2005 71 may achieved more limited means that do not discrimi- against
nate and threaten to disenfranchise a large
number of qualified Michigan First, voters. Chapter Law,
XXIII of the Election MCL to 168.524, 168.491
already establishes comprehensive safeguards aimed at
preventing voting. fraudulent The fact that there are no
documented cases of in-person voter fraud suggests diligence prevented And it a lack production is not that has Rather, of such evidence. it single is because there not been has a in-person Michigan. documented instance of voter fraud in the state of fact, appears only allegation In in-person one fraud has ever State, Secretary allegation
been made to the and that was never substantiated. re FOR ADVISORY OPINION Dissenting Opinion by Kelly, nondiscriminatory means have drastic, these less interest. advanced the state’s
adequately signatures. In matching is the safeguard
Another matching, each voter signature that utilize voter
states The is then signature sheet. sign poll required acquired registration. at against signature
matched digital precincts method in where utilizes this
Michigan A MCL 168.523. less restric- are available.
signatures require- identification photo
tive alternative to the digital all precincts to ensure that have
ments would be
signatures available.24 is to the use of safeguard permit
Another voters Seventeen states utilize this identification.
nonphoto nonphoto If allow flexible
method.25 were to eligible
identification, prejudice it would avoid identification. photo
voters who lack state-issued photo identification safeguards,
Unlike the above remedy PA 71 an extreme
requirements pose of 2005 causes problem. remedy a
an unsubstantiated When it cannot survive strict
greater problem, harm than the options represent All less
scrutiny. the aforementioned the state’s interest accomplish
drastic means to Hence, the photo voter fraud.
preventing means to are not the least restrictive
requirements I interest. For the reasons
advance asserted state constitu- detailed, 2005 PA violates the federal
have 71.
tion. signature majority matching a claims that is not less restrictive require signature. majority- option What because it would still signature matching require signature from
overlooks is that would everyone, just It is difference those lack identification. who restrictive, discriminatory signature matching a less that makes less alternative. 25 Study by Legislatures, State available National Conference of *75 (ac <http://www.ncsl.org/programs/legismgt/elect/taskfc/voteridreq.htm> 2007). 11, July cessed Mich 1 479 by Dissenting Opinion Kelly,
III. THE MICHIGAN CONSTITUTION analysis
A 2005 PA must complete of also include of
consideration Constitution. “State they rest
courts cannot when have afforded their citi- protections
zens full the federal Constitution. constitutions, too,
State are a font of liber- individual
ties, their protections extending beyond often those
required by [United States] inter- Supreme Court’s
pretation of federal law.”26
That the state requires constitution an independent
interpretation is not a concept. novel For much of the
nation’s state history, constitutions have been invoked protect rights individual often have found been greater than provide protection the federal constitu-
tion.27 idea that courts not only state are free to
interpret their constitutions independently, but have a
duty so, to do is derived from federalism itself.28 acknowledged
James Madison principle when he
stated, America, “In the compound republic of
power surrendered people is first divided be- two governments,
tween distinct and then the position
allotted to each among subdivided distinct and separate
departments. security Hence a double arises to the of the
rights people. The different governments will other,
control each at the same time that each bewill
controlled itself.”29 No. The Federalist 51. 26 Brennan, protection rights, State constitutions individual (1977). L R 90 Harv indepen Note: Neither Icarus nor ostrich: State constitutions as an rights, source
dent individual NYU L R 28 Id. at 1842. 29 Similarly, recognized Justice Brandéis benefits our federal Liebmann,
system
262, 311;
he stated New
Ice Co v
when
State
285 US
(1932)
(Brandéis, J., dissenting),
52 S Ct
fully explained state constitution. interpreting our
plays in law, it right given to a citizen under federal
Where a is gov- organic state the instrument of
does not follow that conferring identical interpreted the must be as
ernment by right given the right. does it follow that where Nor constitution, given by state the is not federal constitution It the federal constitution. is offends
state constitution government purports
only organic the instrument of where right granted by the federal of a deprive a citizen can be said to violate
constitution that the instrument
constitution. simple logic, texts were because the
... As a matter of by people, protec- at different times different
written greater, [by may constitutions] be two tions afforded [Sitz, lesser, 760-762.] 443 Mich at or the same. therefore, constitution, “[t]he our interpreting
When is guarantee is state’s [the] not whether question as counterpart than federal as or broader its
the same The Court. Supreme States]
interpreted [United means and guarantee the state’s what question though And
how to the case at hand.”31 applies it of the interpretation Court’s Supreme
United States us navi- may help be a polestar
federal constitution constitution, of our interpretation the correct
gate to it is our constitutional Ultimately,
is no than that. more Constitu- interpret
duty independently
tion. choose, laboratory; try novel social and as a
if its citizens serve country.” experiments risk the rest of the without economic (1993). 744; 506 443 Mich NW2d courts, theory 18 Ga L R Linde, pluribus and state E —Constitutional (1984). 165, 179 l 479 Mich Dissenting Opinion Kelly, Michigan Supreme long recognized Court has duty by engaging “searching in a examination to people
discover what ‘law Michigan] [of have ” omitted). (citation Sitz, made.’ 443 Mich As Cooley correctly
Chief Justice years stated well over 100
ago, Supreme state Court’s “duty to enforce the made,
law which the people have and not some other
law which the words of the may possibly constitution
made express.” People 53 Mich Harding,
Hence we must determine what protection level of
the people Michigan have provided in- against
fringements on the-right vote. The way surest this
answer is to question examine the specific pro-
visions of the Michigan Constitution dealing with right.
A. ARTICLE 2, SECTION 1 2, §
Article 1 of the Michigan Constitution states that
“[e]veiy citizen of the United States who has attained age years, 21 who has resided this state six
months, and who meets the requirements of local law,
residence provided by shall an elector and
qualified to in any vote election except as otherwise
provided By terms, this constitution.” its this clause
provides that individuals who require- have met certain are “qualified
ments to vote.” giving
In meaning phrase to the vote,” “qualified to
this Court “discerns the common understanding by
constitutional applying text [the] term’s mean- plain . ...”
ing Wayne Hathcock, Co v 445, 471 Mich 468-469; (2004).
as met conditions law required or
custom for exercising holding office, a right, etc.” (2001).
Random House Webster’s College Dictionary re FOR ADVISORY OPINION Dissenting Opinion by Kelly, J. 1, therefore, right § confers the 2, expressly
Article citizen, older, 21 or any age States who on United
vote months, resident for six and who
has been The residency requirements.32 question
meets local becomes whether
then unconstitutionally on infringe requirements
affidavit right. examined, constitutionality legislation
When [is] of state interest showing degrees of “[different courts, upon the depending type
required Kropf curtailed.” being which
private interest 139, 157-158; 215 Hts, Mich NW2d
Sterling of review scrutiny applies The standard strict right on a fundamental
“legislation impinge[s] [that] by the constitution.” guaranteed or
explicitly implicitly Estate, 560, Kasuba 401 Mich NW2d Because consti
(1977); Mich 157-158. our Kropf, 391 to vote individuals expressly confers
tution 1, 2, § of art requirements
who have satisfied Twenty-sixth United States Amendment of the Constitution out, And, majority points voting age other to 18. as the lowered
has away provisions may specifically take an otherwise constitutional 1963, See, example, art vote. Const qualified individual’s voting permits from because of § the exclusion of citizens which jail penal incompetence or institution. commitment to a mental However, specifically provides provision constitutional unless another *78 2, § otherwise, anyone qualified requirements the of art 1 is who meets Purity majority Elections is one the of Clause The claims to vote. that So, provisions provides the that otherwise. of the constitutional thought asserts, important majority framers of our constitution the the enough qualifications vote but added to set -the then forth Purity majority the framers The believes that of Elections Clause. Legislature later other the could add that clause so that inserted adding. argument withstand qualification it This cannot felt like Purity broadly as as the scrutiny. Clause To read the Elections 2, essentially meaningless. § 1 I majority art wishes render would meaningless adopt accept a constitu framers would that our cannot provision. tional
100
infringement requirements, subject scrutiny to strict review.33
B. WILKINS ANN ARBOR CITY CLERK34 the Court
It is consistent with decisions that 2,
infringements right § on the not in 1 to vote art are Constitution,
invalid under the Michigan they unless the For exacting example,
withstand most review.
Wilkins, this Court considered whether statute that certain
precluded registering students from to vote in the Equal
state violated the Protection Clause of the state Wilkins,
constitution.35 385 Mich at We 675-676. held “guards
that the constitution against subtle restraints right vote,
on outright the as well as denial”36 and right
actual denial the need not be shown in order for Id. at 685. The scrutiny
strict required. review at Wilkins
statute issue in placed burden on the right
students’ to vote. There less ways were restrictive state accomplishing preventing interests of
fraud and for an providing educated electorate. Hence
the Court found that statute violated Equal state constitution.37 Id. at 694.
Protection Clause of 33 2, only provision gives § Article 1 is not the constitutional rise to requirement scrutiny apply regulations impair that strict Michigan begins to vote. The Constitution with the declaration that political power people. “[a]ll is inherent Government is instituted for benefit, equal security protection.” 1, § their Const 1. art Addi
tionally, Michigan Equal prohibits any person Protection Clause from being enjoyment “political rights.” denied of his or her Const art 1, § provisions people Michigan 2. These constitutional indicate that the importance attach the utmost to the fundamental to vote. 385 Mich NW2d Equal 1, § The Protection Clause is art of the Constitution. 36 Id. at 684. majority disregards Wilkins because Wilkins relied federal Sitz,
law. But Wilkins’s reliance on federal law is irrelevant. 443 Mich at *79 101 OPINION FOR ADVISORY Opinion Dissenting Kelly, J. ACTIONPROGRAM COMMUNITY STATE UAW
C.MICHIGAN OE STATE38 v SECRETARY COUNCIL UAW, consid- this Court Michigan State
Similarly, in- automatically disqualifying a statute
ered whether 2, Michigan Consti- § art 1 of the voters violated
active After UAW, Mich at 513. 387 State Michigan
tution. right of the importance the fundamental
emphasizing unconstitutional, the law was vote, that we found state interest. compelling a supported by it was
unless burden, “[a]ny that Indeed, the held Court
Id. at 514. unless there small, permitted not be will
however at interest.”39 Id. 516. state compelling
demonstrated (“ federally-created incorporate required are not n 12 ‘state courts 762 omitted). ”) (citation analysis’
principles constitutional into their state any infringement on the to vote held that The Wilkins Court Michigan Equal scrutiny Protection under the triggers review strict may altered its Supreme Court have States That the United Clause. adequate reason is not interpretation of federal constitution Michigan interpreting Consti- prior decision of this Court abandon a guarantees disregard that our “not This Court should tution. merely United Michigan because the citizens confers on constitution protection.” Supreme not extended such has withdrawn or Court States at Id. 759. 2, § art 4 of the majority did not consider claims that Wilkins The also reading incorrect. In majority’s of Wilkins is
Michigan The Constitution. upheld Appeals had Wilkins, noted that the Court the Court 2, authority legislative under art a valid exercise of because was statute Clerk, City Wilkins, 24 vAnn Arbor See also Wilkins § 385Mich 685. 4. (1970). rejected this 422, 427; The App 395 Court 180 NW2d Mich provi- regulations under this constitutional argument enacted because Wilkins, 385 by compelling interest. supported state must be sion still Mich at 685-687. NW2d 385 Mich read, Michigan that, UAW majority properly State when The claims Michigan proposition Constitution stand for the does not voters-rights scrutiny cases. I am to all requires application of strict UAW, very Michigan the Court was State
baffled
this statement.
only
considering
the statute at
stating
whether
explicit
that it was
Constitution,
§
specifically
1. The Court
art
violated the
issue
small,
vote],
not be
however
will
“[a]ny
[on the
burden
held that
Legislature’s powers § under art 4 of the Michigan
Constitution to disqualify 2, § inactive voters. Article
authorizes the enactment of preserve “laws to
purity elections, to preserve the secrecy ballot, of the guard against franchise, abuses of the elective and to
provide system for a of voter registration and absentee
voting.” Michigan
UAW,
State
Court argument, that finding that “the state
still must demonstrate a compelling state interest
justify a passed law pursuant to this section.” Id. at 516.
And, because comprehensive set of safeguards were
already in place to accomplish the purported govern-
mental interest of preventing fraud, this Court
struck down the statute as unconstitutional.40 Id. at
517-520.
D. SOCIALIST WORKERSPARTYv SECRETARYOF STATE41
In Socialist Workers Party, at issue was a statute
requiring new political parties to meet petition both a
requirement and a minimum-primary-vote require-
ment to appear on the general election ballot. Socialist
Workers Party,
argued Id. at 582. of the state constitution. Clause
Protection requirements determining agreed, Court
This narrowly they because were
unconstitutional interest.42 Id. at state compelling
tailored to achieve 2, § 4 art held, also, the law violated that 594. The Court “ of elec- Constitution, ‘purity ” 412 at 599. Party, Workers clause. Socialist
tions’ Purity of violated the that the statute deciding Clause, recognized the Court
Elections first, concepts: separate embodies “two
clause preserve authority to enact laws
the constitutional Legislature; resides in the of elections
the purity Legislature enacted
second, ‘that law of elections is purity adversely affects
which ” (citation omit- Id. at 596 constitutionally infirm.’
ted). that undermined found that a law The Court of an election would and evenhandedness
fairness *81 at And, the statute at 598-599. because
invalid. Id. advantage an already established gave parties
issue that the statute Court held parties,
over new the clause. Id.
violated Wilkins, State Michigan in
This Court’s decisions Party propo- stand for
UAW, and Socialist Workers vote, right infringement on any
sition that scrutiny under the minor, to strict subject
however Party discarded majority can be finds that Socialist Workers The Michigan precedent interpreting in on federal
because it relied Party, found that strict Workers this Court In Socialist Constitution. on the federal scrutiny Michigan It relied applied under the Constitution. Regardless, is relevant to making the case that decision. constitution constitution, scrutiny applies that, to the strict under the state show earlier, this Court should “not As I stated requirements issue. Michigan guarantees constitution confers disregard that our Supreme has withdrawn merely Court the United States citizens because Sitz, protection.” Mich at 759. extended such or not 479 Mich Dissenting Opinion Kelly, J.
Michigan Constitution.43 These decisions also illustrate proper Purity role of the of Elections Clause. The clause, free to
Legislature is enact new laws under this
but that legislation threatens disenfranchise
voters or that undermines the fairness of an election
will be invalid. requirements
The at issue in in- the instant case
fringe on the to vote an obstacle creating that the right qualified
burdens voters to cast a ballot.
Hence, Wilkins, teaching UAW, Michigan State
and Socialist Workers is that Party requirements these unconstitutional,
are they unless are narrowly tailored
to achieve compelling governmental interest.
E. FACTORSTO BE WEIGHED
We are required by language of our state consti-
tution and the decisions of this Court interpreting to find that
language infringements on to vote subject
are to strict scrutiny. But an additional reason
supports finding. past occasions, On this Court has
cited factors that are
helpful
determining when it is
43 majority
ignored
they
claims that these decisions can be
because
voting regulations
subject
were decided at a time when all
were
to strict
scrutiny.
simply
This
is not true. At the same time this Court decided
Wilkins,
years
State
UAW
and over 10
before this Court
Party,
decided
Supreme
Socialist Workers
the United States
Court
explicitly
every
maintained that “not
limitation or incidental burden on
voting
subject
rights
stringent
the exercise of
ato
standard of review.”
Bullock,
Accordingly,
appropriate When counterpart. its than federal protection
more state that our weighed, apparent are
these factors infringe- against greater protection affords
constitution the federal does right to vote than
ments on the
constitution.44 (1) the state language factors are textual
The (2) between
constitution, textual differences significant (3) constitutions, struc- of the two
parallel provisions and federal consti- between the state
tural differences (4) common-law his-
tutions, constitutional and state (5) of the relevant adoption
tory, preexisting state law (6) of peculiar matters provision,
constitutional
Sitz,
n 14.
state 2, Michigan expressly § 1 of the Constitution
Article satisfy the to vote on individuals who right
confers the differ- section. This is a set forth
requirements and the fed- Michigan Constitution
ence between provisions constitution. The federal constitutional
eral right denial of right prohibit to vote
regarding characteristics. But the protected
on the basis of certain expressly give anyone does not
federal constitution Dist v to vote.45 Antonio School
right Independent San 1278; n L Ed 2d 411 US 93 S Ct 36
Rodriguez, (1973). The fact Constitution electors while the right qualified
confers the to vote on constitution state courts have found that their state Numerous against infringements greater protection to vote than affords State, E.g., Weinschenk v 203 SW3d
the federal constitution. Elections, (Mo, 2006); Party Maryland Maryland 377 Md Green Bd of 127, 150; A2d 214 provides: Amendment The Fifteenth not be of the United States to vote shall of citizens by any abridged by on account the United States or State
denied or race, color, previous servitude. condition of provides: Amendment The Nineteenth *83 479 Mich Dissenting Opinion by Kelly, J. not, supports
federal constitution does the conclusion Michigan
that the Constitution greater protec- affords
tion than its federal counterpart. language Michigan
The of the Constitution also dif-
fers from the federal constitution in that the Michigan Protection Clause46
Equal protects “political rights,”
whereas the federal Protection Equal Clause47does not.
Additionally, 1, § art 1 of the Michigan Constitution right The of citizens of the United States vote shall not be abridged by by any denied or the United States or State on account
of sex. Congress power by appropriate shall have to enforce this article
legislation. Twenty-sixth provides:
The Amendment right States, eighteen The of of the citizens United who are
years older, age abridged by or to vote shall not be denied or by any age. United States or State on account of Congress power by appropriate shall have to enforce this article
legislation. provision provides: § Const art 2. This person equal laws; protection No shall be denied the of the nor any person enjoyment shall political be denied the of his civil or rights against or be discriminated in the exercise thereof because race, religion, origin. legislature color or national shall
implement by appropriate legislation. this section
47 Const, Xiy provision provides: § US Am 1. This persons States, All born or naturalized in the United subject jurisdiction thereof, to the are citizens of the United States they and of the State wherein reside. No State shall make or any abridge privileges enforce law which shall or immunities of States; any deprive citizens of the United nor shall State life,
person liberty, law; property, process without due nor deny any person jurisdiction protection equal within its the laws. ADVISORY FOR OPINION Opinion by Dissenting Kelly, in the is inherent political power “[a]ll that
declares analogous contains no The federal constitution
people.”
provision. between our also structural differences
There are indicate and the federal constitution
constitution provides greater protection constitution
that the state Unlike the on the to vote.
against infringements constitution, Constitution dedi- Michigan
federal This signifies article to elections.48
cates an entire attach to the
importance people *84 ar- parallel constitution contains no
vote. The federal regarding
ticle elections. caselaw, that,
Another difference is unlike federal uniformly held that
the decisions of this Court have to right subject on the to vote are strict
infringements today, every in case decided under
scrutiny. Before constitution, applied
the current state this Court scrutiny impaired right to statutes that
strict UAW, Wilkins, State and Socialist
vote. See hand, On the other the federal courts Party.
Workers scrutiny long recognized
have that different levels on how the burden is. apply depending significant
will Storer, 730; Anderson,
See,
788. of our current long
And even before ratification
constitution, the fundamental recognized this Court vote, explaining
and nature of the paramount vote, highest lose his “[n]o elector can or will, the freeman’s his own fault except
exercise of General, v Detroit Attorney Conely ex rel
negligence.” Council, 545, 563; 44
Common 78 Mich NW also, in suggested,
This Court’s decision the Detroit case seeking those recourse for appropriate II dedicated to elections. All of art 479 MICH Dissenting Opinion by Kelly, by imposing require- fraud an identification
prevent amendment, not legislation.
ment is a constitutional such, exigencies
If of the I do not times are which
believe, in that a fair and honest election cannot be held
Detroit, State, place other other our without
qualifications upon and restrictions both native-born and
naturalized citizens than those now found in or authorized
hy Constitution, remedy people then the is with the pointed such out
alter Constitution the lawful methods permitted by [Id. 564.] that instrument. for well
Accordingly, years, over 100 this Court has
held that restrictions that threaten to disenfranchise invalid, eligible voters are
otherwise absent constitu- governmental
tional amendment or a inter- compelling weighs heavily
est. This fact in favor finding greater
protection under the state constitution.
Finally, voting fundamentally a matter of local regulation
concern. federal constitution leaves the largely
of elections to the states. The Elections Clause
the federal constitution that the state provides legisla- “Times, prescribe
tures shall Places and Manner of
holding Elections for Senators Representa- Const, I, 4,§
tives .. . .” US art 1. The cl individual complete control, also,
states have over the election
process Tashjian *85 for state offices. v Republican Party of
Connecticut, 208, 217; 107 S Ct L US 93 Ed 2d
The fact that granted the states are such broad
regulatory power indicates that this is an area where likely greater
state constitutions include protection
against potential abuses. This is confirmed the fact
that Michigan expressly Constitution sets forth the
qualifications voting, whereas under the federal
system, qualifications legislative are left to determina- Const, I, 2,§
tion. Compare provides US art which that re FOR OPINION ADVISORY Dissenting Opinion by Kelly, electors must be to those for state equivalent
federal 2, 1, § art which
positions, provides with Const meets requirements
that an individual who certain to vote. Because the federal constitution
qualified states, of elections to the it regulation largely
leaves the provide
makes sense that the state constitutions would
greater protection against potential election abuses. reasons, I
For all of the above would hold that
infringement right on the to vote is unconstitutional Constitution, Michigan
under the unless it can with- exacting scrutiny. photo require-
stand the most The PA infringe
ments of 2005 on the fundamental and, section, in preceding vote as demonstrated narrowly
are not tailored to achieve state compelling Hence, I
interest. would declare these requirements
unconstitutional.49 majority disagrees my with conclusion and finds Michigan
that the Constitution greater pro- affords no that against regulations
tection burden the to vote But,
than the federal in deciding does constitution. Michigan Constitution,
step. strongly disagree approach. with this It is the equivalent
functional the United giving States Su-
preme ability Court the to amend the Consti- quote
tution. To Justice Dennis of the Louisiana Su- Court, “my have sunk
preme colleagues this court to pitch abject followership. They longer
the lowest no state
believe our constitution as an act of fundamen- self-government by
tal .... no people They longer be the
perceive
meaning
this court to
final arbiter of the
(1)
scrutiny
is no voter fraud is (2) were, Michigan, if even there are other methods to combat requirements than fraud that are less burdensome at issue. *86 479 MICH Opinion by Kelly, J. Dissenting of the drafters constitution, by the intent bound
of that text, drafting ratifiers as reflected
and In- precedents. constitutional and this court’s
history, parch- is a blank them, state constitution
stead, for our record the in which to only copybook as a
ment fit Court.]” State Supreme the United States
[decisions 1993). Tucker, (La, 626 So 2d IV CONCLUSION Court deci- Supreme States A of the United review scrutiny continues to in Burdick shows that strict
sion Harper, here. applicable of review
be the standard
Kramer, Dunn are still good law. of the federal if Amendment
But even the Fourteenth it, Michigan Constitu- require did not
constitution
scrutiny
strict
pass
tion demands that Detroit to be constitutional. pronounced
test in order Wilkins, UAW, Council, State
Common Party that fact.
Socialist Workers speak all fundamental, strict and the to vote is in- statute
scrutiny applied test must beyond require- It is
fringes question on it. to vote infringe PA 71 on the
ments of 2005 place. to the polling conditions to a voter’s access
adding no scrutiny fail the test because
These conditions strict has been demon- state interest them
compelling has not been in-person voter fraud Significant
strated. had, But, even if it less Michigan. to exist in
shown exist to combat whatever
burdensome methods PA should be held threaten to may erupt.
fraud
unconstitutional. by today’s decision severely prejudiced
Those most Yet, disadvantaged. Michi-
are the and the impoverished strong reputation for the always enjoyed has
gan has rights. tragic This decision of our civil
protection re Ill FOR ADVISORY OPINION Dissenting Opinion by Kelly, potential wipe many out of this state’s achieve-
ments in this I history judge area. believe that will us
harshly joining those states that have limited the
precious constitutional to vote. I Accordingly,
dissent.