Promote the Vote v. Secretary of StatePromote the Vote v. Secretary of State
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
Priorities USA is a “voter-centric progressive advocacy and service organization,” which spends resources, including in the state of Michigan, to register young individuals to vote. Rise, Inc., is a “nonprofit organization that runs statewide advocacy and voter mobilization programs” in Michigan and California, as well as on a number of campuses throughout the country. Part of its mission is to increase voting access for college students. PTV is “a ballot question committee” that drafted the language of Proposal 3, a 2018 ballot proposal to amend Michigan’s Constitution, collected more than 400,000 signatures in order to get the proposal placed on the ballot, and led the campaign for the proposal’s passage.
On appeal, PTV and the Priorities USA plaintiffs argue that the proof of residency requirements in
I. LEGAL BACKGROUND
In the 2018 general election, Michigan voters approved Proposal 3, which made changes to Michigan’s election law. Specifically, Proposal 3 amended
(1) Every citizen of the United States who is an elector qualified to vote in Michigan shall have the following rights:
(a) The right, once registered, to vote a secret ballot in all elections. * * *
(d) The right to be automatically registered to vote as a result of conducting business with the secretary of state regarding a driver’s license or personal identification card, unless the person declines such registration.
(e) The right to register to vote for an election by mailing a completed voter registration application on or before the fifteenth (15th) day before that election to an election official authorized to receive voter registration applications.
(f) The right to register to vote for an election by (1) appearing in person and submitting a completed voter registration application on or before the fifteenth (15th) day before that election to an election official authorized to receive voter registration applications, or (2) beginning on the fourteenth (14th) day before that election and continuing through the day of that election, appearing in person, submitting a completed voter registration application and providing proof of residency to an election official responsible for maintaining custody of the registration file where the person resides, or their deputies.1 Persons registered in accordance with subsection (1)(f) shall be immediately eligible to receive a regular or absent voter ballot.
* * *
All rights set forth in this subsection shall be self-executing. This subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes. Nothing contained in this subsection shall prevent the legislature from expanding voters’ rights beyond what is provided herein. This subsection and any portion hereof shall be severable. If any portion of this subsection is held invalid or unenforceable as to any person or circumstances, that invalidity or unenforceability shall not affect the validity, enforceability, or application of any other portion of this subsection.
(2) Except as otherwise provided in this constitution or in the constitution or laws of the United States[,] the legislature shall enact laws to regulate the time, place and manner of all nominations and elections, to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting. No law shall be enacted which permits a candidate in any partisan primary or partisan election to have a ballot designation except when required for identification of candidates for the same office who have the same or similar surnames.2
(1) An individual who is not registered to vote but possesses the qualifications of an elector as provided in [
MCL 168.492 ] may apply for registration to the clerk of the county, township, or city in which he or she resides in person, during the clerk’s regular business hours, or by mail or online until the fifteenth day before an election.(2) An individual who is not registered to vote but possesses the qualifications of an elector as provided in [
MCL 168.492 ] or an individual who is not registered to vote in the city or township in which he or she is registering to vote may apply for registration in person at the city or township clerk’s office of the city or township in which he or she resides from the fourteenth day before an election and continuing through the day of the election. An individual who applies to register to vote under this subsection must provide to the city or township clerk proof of residency in that city or township. For purposes of this subsection, proof of residency includes, subject to subsection (3), any of the following:(a) An operator’s or chauffeur’s license issued under the Michigan vehicle code, 1949 PA 300,
MCL 257.1 to 257.923, or an enhanced driver license issued under the enhanced driver license and enhanced official state personal identification act, 2008 PA 23,MCL 28.301 to 28.308.(b) An official state personal identification card issued under 1972 PA 222,
MCL 28.291 to 28.300, or an enhanced official state personal identification card issued under the enhanced driver license and enhanced official state personal identification card act, 2008 PA 23,MCL 28.301 to 28.308.3(3) If an application for voter registration under subsection (2) does not have proof of residency as that term is defined in subsection (2), the applicant may provide as his or her proof of residency any other form of identification for election
required for identification of candidates for the same offense which have the same or similar surnames.
purposes as that term is defined in [
MCL 168.2 ] and 1 of the following documents that contains the applicant’s name and current residence address:(a) A current utility bill.
(b) A current bank statement.
(c) A current paycheck, government check, or other government document.
(4) If an application for voter registration under subsection (2) does not have identification for election purposes, the applicant may register to vote if he or she signs an affidavit indicating that the applicant does not have identification for election purposes and the applicant provides 1 of the following documents that contains the applicant’s name and current residence address:
(a) A current utility bill.
(b) A current bank statement.
(c) A current paycheck, government check, or other government document.
(5) Immediately after approving a voter registration application, the city or township clerk shall provide to the individual registering to vote a voter registration receipt that is in a form as approved by the secretary of state. If an individual registers to vote in person 14 days or less before an election or registers to vote on election day, and that applicant registers to vote under subsection (3) or (4), the ballot of that elector must be prepared as a challenged ballot as provided in [ MCL 168.727 ] and must be counted as any other ballot is counted unless determined by a court of law under [MCL 168.747 orMCL 168.748 ] or any other applicable law.
An election inspector must identify, as provided in
In case of a contested election, on the trial thereof before any court of competent jurisdiction, it shall be competent for either party to the cause to have produced in court the ballot boxes, ballots and poll books used at the election out of which the cause has arisen, and to introduce evidence proving or tending to prove that any person named on such poll lists was an unqualified voter at the election aforesaid, and that the ballot of such person was received. On such trial, the correspondence of the number endorsed on a ballot as herein provided with the number of the ballot placed opposite the name of any person on the poll lists shall be received as prima facie proof that such ballot was cast by such person: Provided, That the ballot of no person shall be inspected or identified under the provisions of this chapter unless such person shall consent thereto in writing, or unless such person has been convicted of falsely swearing in such ballot, or unless the fact that
such person was an unqualified elector at the time of casting such ballot has been determined.5
See also In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1, 14 n 24; 740 NW2d 444 (2007) (“The ballot cast by a challenged voter is marked (and the mark subsequently concealed) with a number corresponding to the voter’s poll list number, and is counted as a regular ballot.
According to the Priorities USA plaintiffs, following the passage of Proposal 3, the Secretary began to automatically register to vote those who conducted business with her regarding a driver’s license or personal identification card if they were at least 17½ years of age (the AVR Policy). To support this claim, the Priorities USA plaintiffs provide a press release from the Secretary that announced that she had
II. PROCEDURAL HISTORY
On November 22, 2019, Priorities USA filed suit against the Secretary in the Court of Claims. An amended complaint was filed on January 21, 2020, by the Priorities USA plaintiffs.
On January 6, 2020, PTV filed suit against the Secretary in the Court of Claims. PTV’s complaint and the Priorities USA plaintiffs’ amended complaint both advanced similar allegations. PTV and the Priorities USA plaintiffs asserted that the Legislature’s proof of residency definition in
Following the consolidation of the two cases, and the Legislature’s intervention, the Legislature filed a motion for summary disposition under
The Secretary also moved for summary disposition under
use of alternative, and sometimes less objective, forms of proof of residency reasonably warrants additional procedural requirements.
In PTV’s motion for summary disposition under
PTV also argued that
The Priorities USA plaintiffs moved for a preliminary injunction, attaching three affidavits from two students at the University of Michigan and one student at Michigan State University that detailed their difficulties in registering to vote in the 14-day period. The Priorities USA plaintiffs also attached a report from Michael E. Herron, Ph.D., which detailed the results from two surveys he commissioned. In the first survey, 2,000 Michigan
of whom were 21 years of age or younger) were not able to register in the 14-day period for the upcoming election because they lacked proof of residency.
On June 24, 2020, the Court of Claims issued an opinion and order granting the Legislature’s and the Secretary’s motions for summary disposition, denying PTV’s motion for summary disposition, and denying the Priorities USA plaintiffs’ motion for a preliminary injunction. The Court of Claims first addressed the claim that the amendments of
Next, the Court of Claims rejected the argument that the AVR Policy unduly burdened and curtailed the rights in
The Court of Claims then addressed whether
The Court of Claims also rejected the Priorities USA plaintiffs’ suggestion that younger voters will be most harmed by
documents that suffice under the statute, the majority of which are readily available to college students, and the fact that registration can be accomplished over the internet, something ‘younger voters’ are surely able to utilize.” Third, the argument gave no credence to the young voters’ ability to understand and follow clear voter registration procedures.
Finally, the Court of Claims rejected the argument that the requirement in
It is only in the event of a contested election, where the challenged ballot is at issue, that the ballot may be inspected or identified; however, this inspection may only occur with either: the voter’s written consent; or only after the individual has been convicted of falsely swearing the ballot; or the voter was deemed to be unqualified.
MCL 168.474 . Therefore, the only way for the vote to be revealed—absent express written consent—is under court order and even then, only in two limited circumstances that require a prior determination of falsehood. This is not a severe burden, and it places no burden on the voter at the time of voting, nor does it impact the tabulation of those particular votes cast on election day.In contrast, the state has an interest in ensuring the integrity of ballots should it be needed. This specific interest is properly served by this regulation, as in the event of suspected voter fraud, the court may reveal the identity of the voter and a determination can be made. Overall, the burden imposed on voters’
rights is minimal, and the legislation is within the scope of the state’s interest in preserving the purity of elections.
Thus, the Court of Claims granted summary disposition in favor of the Legislature and the Secretary, and dismissed the complaints with prejudice. This appeal follows.
III. DISCUSSION
On appeal in Docket No. 353977, PTV argues that the Court of Claims erred in concluding that there is no constitutional right to vote;
A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition. Ellison v Dep’t of State, 320 Mich App 169, 175; 906 NW2d 221 (2017). Summary disposition is proper under
This Court also reviews de novo questions of constitutional law. Bonner v Brighton, 495 Mich 209, 221; 848 NW2d 390 (2014). “A statute challenged on a constitutional basis is ‘clothed in a presumption of constitutionality,’ and the burden of proving that a statute is unconstitutional rests with the party challenging it.” In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1, 11; 740 NW2d 444 (2007) (citation omitted).
A challenge to the constitutionality of a statute is either a facial challenge or an as-applied challenge. Bonner, 495 Mich at 223 nn 26-27; In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich at 11 & n 20. “A facial challenge is a claim that the law is invalid in toto—and therefore incapable of any valid application,” whereas an as-applied challenge “considers the specific application of a facially valid law to individual facts.” In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich at 11 & n 20 (quotation marks and citation omitted). The challenges to
“A party challenging the facial constitutionality of a [statute] ‘faces an extremely rigorous standard.’ ” Bonner, 495 Mich at 223 (citation omitted). A plaintiff “must establish that no set of circumstances exists under which the act would be valid” and “[t]he fact that the . . . act might operate unconstitutionally under some conceivable set of circumstances is insufficient’ ” to render the act invalid. Council of Orgs & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 568; 566 NW2d 208 (1997) (quotation marks, alteration marks, and citation omitted). Indeed, “if any state of facts reasonably can be conceived that
B. CONSTITUTIONAL RIGHT TO VOTE
PTV and the Priorities USA plaintiffs argue that the Court of Claims erred by stating that the right to vote was not expressly enumerated in the Michigan Constitution. Before addressing this argument, we find it necessary to detail the history of the right to vote.
In the Court of Claims opinion and order, the court stated that “the right to vote is not enumerated in either the federal or state constitution . . . .” Although there are numerous provisions in the United States Constitution that prevent states from discriminating against specific groups by taking away their right to vote, there is no specific enumeration of the right to vote. See
San Antonio Indep Sch Dist v Rodriguez, 411 US 1, 35 n 78; 93 S Ct 1278; 36 L Ed 2d 16 (1973) (“[T]he right to vote, per se, is not a constitutionally protected right . . . .“). For example, the
Despite the lack of a positive right to vote, the United States Supreme Court, “[i]n decision after decision, . . . has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v Blumstein, 405 US 330, 336; 92 S Ct 995; 31 L Ed 2d 274 (1972). Indeed, “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v Sanders, 376 US 1, 17; 84 S Ct 526, 534-535; 11 L Ed 2d 481 (1964). However, “[t]his equal right to vote is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways.” Dunn, 405 US at 336 (quotation marks and citation omitted).
Following the passage of Proposal 3 in Michigan, this state’s constitution now reads: “Every citizen of the Unites States who is an elector qualified to vote in Michigan shall have the following rights: The right, once registered, to vote a secret ballot in all elections.”
PTV and the Priorities USA plaintiffs assert that
C. SELF-EXECUTING CONSTITUTIONAL PROVISIONS
PTV and the Priorities USA plaintiffs argue that the Legislature’s definition of proof of residency in
rights, the statutory provisions are unconstitutional. The Priorities USA plaintiffs also argue that the Secretary’s AVR Policy unduly burdens the right in
There is no dispute among the parties that the rights in
1. PROOF OF RESIDENCY
Under
A definition from the Legislature of proof of residency was desirable. Wolverine Golf Club, 24 Mich App at 730. Absent a statutory definition of proof of residency, confusion and disorder could arise during the 14-day period and on election day itself. Any person who wanted
to register to vote in the 14-day period would be left to wonder what documents would be accepted as proof of residency. Each city or township clerk would have to make his or her own determination regarding what is acceptable proof of residency. Under these individualized determinations, the documents that would be accepted as proof of residency could be different in each of Michigan’s cities and townships. Consequently, a definition of proof of residency makes definite what documents an individual must bring to register to vote in the 14-day period and creates a uniform standard in each of Michigan’s voting jurisdictions. Id. Furthermore, the Legislature has the constitutional authority under
Additionally, even though the Priorities USA plaintiffs have presented evidence that the Legislature’s definition of proof of residency in
The Legislature’s definition of proof of residency allows a person to register to vote in the 14-day period with a broad array of common, ordinary types of documents that are available to persons of all voting ages. The Legislature did not provide a narrow list of documents that individuals who register to vote in the 14-day period must present as proof of residency. Moreover,
2. CHALLENGED BALLOTS
We reject the claims of PVT and the Priorities USA plaintiffs that
Michigan election law defines a “regular ballot” as “a ballot that is issued to a voter on election day at a polling place location.”
Furthermore, a challenged ballot is a secret ballot. Generally, a secret ballot is one that prevents anyone else from knowing how the individual voted. See Helme v Bd of Election Comm’rs of Lenawee Co, 149 Mich 390, 391-393; 113 NW 6 (1907); People v Cicott, 16 Mich 283, 297 (1868), overruled on other grounds by Petrie v Curtis, 387 Mich 436 (1972). The mark on a challenged ballot, either before or after it is concealed, does not indicate to anyone how the individual voted. Long before Proposal 3 was passed, the Supreme Court recognized that
3. AVR POLICY
The Secretary’s AVR Policy does not unduly burden the right in
the rights listed in
The AVR Policy, which allows those who are 17½ years of age or older to be automatically registered to vote as a result of conducting business with the Secretary regarding a driver’s license or personal identification card, is consistent with
Each individual who has the following qualifications of an elector is entitled to register as an elector in the township or city in which he or she resides. The individual must be a citizen of the United States; not less than 17-½ years of age; a resident of this state; and a resident of the township or city. [
MCL 168.492 .]
Because a person under the age of 18 is not an elector qualified to vote in Michigan, and because the AVR Policy is consistent with
D. EQUAL PROTECTION
PTV and the Priorities USA plaintiffs argue that
The Priorities USA plaintiffs argue that the Legislature’s definition of proof of residency in
hundreds, if not thousands, of individuals in Michigan who are qualified to vote. According to the Priorities USA plaintiffs, strict scrutiny should be applied to the definition.
Every election law, “whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects—at least to some degree—the individual’s right to vote and his right to associate with others for political ends.” Anderson v Celebrezze, 460 US 780, 788; 103 S Ct 1564; 75 L Ed 2d 547 (1983).9 Consequently, subjecting every voting regulation to strict scrutiny, thereby requiring that the regulation be narrowly tailored to advance a compelling state interest, would tie the hands of states seeking to assure that elections are operated equitably and efficiently. Burdick v Takushi, 504 US 428, 433; 112 S Ct 2059; 119 L Ed 2d 245 (1992). In Burdick, the United States Supreme Court held that “a more flexible standard” applies:
A court considering a challenge to a state election law must weigh the “character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiff’s rights.”
Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment
rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State’s important regulatory interests are generally sufficient to justify” the restrictions. [Id. at 434 (citations omitted).]
See also In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich at 21-22, where the Supreme Court, after quoting these two paragraphs, stated:
Thus, the first step in determining whether an election law contravenes the constitution is to determine the nature and magnitude of the claimed restriction inflicted by the election law on the right to vote, weighed against the precise interest identified by the state. If the burden on the right to vote is severe, then the
regulation must be “narrowly drawn” to further a compelling state interest. However, if the restriction imposed is reasonable and nondiscriminatory, then the law is upheld as warranted by the important regulatory interest identified by the state. The United States Supreme Court has stressed that each inquiry is fact and circumstance specific, because “[n]o bright line separates permissible election-related regulation from unconstitutional infringements[.]” [Citation omitted.]
In resolving an equal protection challenge to an election law under the Michigan Constitution, this Court applies the Burdick test. Id. at 35.
The Legislature’s definition of proof of residency does not impose a severe burden on the right to vote. Because
However, in arguing that the Legislature’s definition of proof of residency has, and will, disenfranchise these individuals, the Priorities USA plaintiffs fail to recognize that an individual can register to vote in several ways. An individual can register to vote by mailing a completed voter registration application on or before the 15th day before the election.
The Priorities USA plaintiffs make no claim that any person who is unable to provide proof of residency, as defined in
to constitute proof of residency when one applies for a driver’s license or personal identification card,10 would allow a significant number of individuals who cannot provide proof of residency, as defined by
The Legislature’s definition of proof of residency in
Furthermore, the Legislature’s definition of proof of residency is warranted by the state’s regulatory interests. Id. at 22. The Legislature has constitutional authority to enact laws to preserve the purity of elections, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.
Furthermore, the Legislature’s definition of proof of residency is a reasonable means to prevent voter fraud. By defining proof of residency as requiring either a current Michigan driver’s license or personal identification or a utility bill, bank statement, paycheck, government
We reject the Priorities USA plaintiffs’ claim that voter fraud does not justify the Legislature’s definition of proof of residency because voter fraud is not a problem in Michigan and there is no reason to believe that voter fraud would be more prevalent during the 14-day period than in any preceding period. Recall that it is the Michigan Constitution that requires different treatment of persons who register to vote in person on or before the 15th day before the election and those who register in the 14-day period. See
Legislature was not required to wait until there was proven voter fraud during the 14-day period before it could enact a definition of proof of residency. See In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich at 26-27, where the Supreme Court rejected the argument that the state’s interest in preventing in-person voter fraud was illusory because there was no significant evidence of such fraud:
[T]here is no requirement that the Legislature “prove” that significant in-person voter fraud exists before it may permissibly act to prevent it. The United States Supreme Court has explicitly stated that “elaborate, empirical verification of the weightiness of the State’s asserted justifications” is not required. Rather, a state is permitted to take prophylactic action to respond to potential electoral problems:
To require States to prove actual [harm] as a predicate to the imposition of reasonable . . . restrictions would invariably lead to endless court battles over the sufficiency of the “evidence” marshaled by a State to prove the predicate. Such a requirement would necessitate that a State’s political system sustain some level of damage before the legislature could take corrective action. Legislatures, we think, should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights.
Therefore, the state is not required to provide any proof, much less “significant proof,” of in-person voter fraud before it may permissibly take steps to prevent it. [Citations omitted.]
We also reject the Priorities USA plaintiffs’ claim that the Legislature’s definition of proof of residency was not justified because other statutes adequately
to vote on or before the 15th day before the election the person must submit “a completed voter registration application.”
[T]hat Michigan criminalizes in-person voter fraud does not address Michigan’s undisputed interest in preventing fraud in the first instance, nor do criminal sanctions provide a means of detecting fraud. Moreover, it is unclear how the imposition of criminal penalties could remedy the harm inflicted on our electoral system by a fraudulently cast ballot. [Id.]
Accordingly,
Finally, PTV, in arguing that
The burden of long lines, which results in people having to wait longer to register to vote, is not a severe burden. Long lines are certainly an inconvenience, but a burden must go beyond mere inconvenience to be severe. Crawford, 553 US at 205 (SCALIA, J., concurring). Additionally, the burden is justified by the state’s interest in preventing voter fraud. See In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich at 19-20. The challenged ballot provides a procedure, in a contested election, to identify a ballot that was cast by someone who engaged in voter fraud. See
IV. RESPONSE TO THE DISSENT
Our dissenting colleague concedes that the Legislature was within its rights to establish what constitutes “proof of residency” within the 14-day period. Indeed, the dissent states that the Legislature “can and should” provide guidance as to what is acceptable proof of residency. By making this concession, our colleague must also acknowledge that the legislative choice reflected in
meaning.”12 But in our view it is not part of the judicial role to second guess the Legislature’s policy judgment in this regard, so long as what has been enacted does not run afoul of the constitution. See State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 149; 644 NW2d 715 (2002) (“It is not the role of the judiciary to second-guess the wisdom of a legislative policy choice; our constitutional obligation is to interpret—not to rewrite—the law.“). We have laid out in painstaking detail why the statutory enactments at issue in this case are well within constitutional bounds.
Finally, the dissent posits that there is a well-accepted meaning of the term “proof of residency.” If so, why should the Legislature have need of defining the term, as the dissent concedes that it “can and should” have done? More fundamentally, we disagree that the Legislature has substituted “proof of identity” for “proof of residency.” In the context of this statute, a State of Michigan driver’s license or personal identification card is being used not as proof of identity, but as proof
V. CONCLUSION
We affirm the June 24, 2020 opinion and order of the Court of Claims. The Secretary and the Legislature were entitled to summary disposition. The Legislature’s definition of proof of residency in
Affirmed.
/s/ Patrick M. Meter
/s/ Michael F. Gadola
Notes
The legislature shall enact laws to regulate the time, place and manner of all nominations and elections, except as otherwise provided in this constitution or in the constitution and laws of the United States. The legislation shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting. No law shall be enacted which permits a candidate in any partisan primary or partisan election to have a ballot designation except when
After issue joined in any case of contested election, either party to the cause may present a petition to the court before which the said cause is to be tried, setting forth among other things that the petitioner has good reason to believe and does believe that 1 or more voters at the election out of which the cause has arisen, naming him or them, and stating his or their place of residence, were unqualified to vote at such election; that he believes the same can be established by competent testimony; that the ballot or ballots of such voter or voters were received after being challenged, as provided by law; and praying that the court may try and determine the question of the qualification of such voter or voters at said election, which petition shall be verified by the oath of the petitioner or some other person acquainted with the facts, and thereupon the court shall direct an issue to be framed, within a time to be fixed therefor, for the purpose of determining the question of the qualifications of the voter or voters named in said petition to vote at said election; and such issue shall stand for trial as in other cases, and the verdict of the jury or judgment of the court upon such issue so made shall be received, upon the trial of the principal issue in said cause, as conclusive evidence to establish or to disprove the said qualifications of said voter or voters.