Opinion
No. 353977 No. 354096
07-20-2020
PROMOTE THE VOTE, Plaintiff-Appellant, v. SECRETARY OF STATE, Defendant-Appellee, and House of Representatives and Senate, Intervening Appellees. Priorities USA and Rise, Inc., Plaintiffs-Appellants, v. Secretary of State, Defendant-Appellee, and Senate and House of Representatives, Intervening Defendants-Appellees.
Cummings & Cummings Law Group, PLLC (by Mary Ellen Gurewitz and Sheila Cummings ) for Promote the Vote. Perkins Coie LLP (by Marc E. Elias, Jacki L. Anderson, Jyoti Jasrasaria, Kevin J. Hamilton, and Amanda J. Beane ) and Sarah S. Prescott, Northville, for Priorities USA and Rise, Inc. Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Secretary of State. Bush Seyferth PLLC (by Patrick G. Seyferth, Troy, Michael K. Steinberger, Detroit, and Frankie Dame ) for the Senate and House of Representatives.
Cummings & Cummings Law Group, PLLC (by Mary Ellen Gurewitz and Sheila Cummings ) for Promote the Vote.
Perkins Coie LLP (by Marc E. Elias, Jacki L. Anderson, Jyoti Jasrasaria, Kevin J. Hamilton, and Amanda J. Beane ) and Sarah S. Prescott, Northville, for Priorities USA and Rise, Inc.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Secretary of State.
Bush Seyferth PLLC (by Patrick G. Seyferth, Troy, Michael K. Steinberger, Detroit, and Frankie Dame ) for the Senate and House of Representatives.
Before: Meter, P.J., and Ronayne Krause and Gadola, JJ.
Meter, P.J. In Docket No. 353977, plaintiff, Promote the Vote (PTV), appeals by right a June 24, 2020 order entered by the Court of Claims. In Docket No. 354096, plaintiffs, Priorities USA and Rise, Inc. (collectively, the Priorities USA plaintiffs), also appeal by right the June 24, 2020 order. The Court of Claims order denied PTV's motion for summary disposition, as well as the Priorities USA plaintiffs’ motion for a preliminary injunction, and granted the motions for summary disposition of the Secretary of State (the Secretary) and the Senate and House of Representatives (collectively, the Legislature). This Court consolidated the two cases and ordered that the appeals would be decided without oral argument. Promote the Vote v. Secretary of State , unpublished order of the Court of Appeals, entered July 8, 2020 (Docket Nos. 353977 and 354096).
Priorities USA is a "voter-centric progressive advocacy and service organization" that 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 MCL 168.497(2) to (4), the challenged-ballot procedure in MCL 168.497(5), and the Secretary's automatic voter-registration policy unduly burden the rights in Const. 1963, art. 2, § 4(1) and are therefore unconstitutional. PTV and the Priorities USA plaintiffs also argue that MCL 168.497 violates the Equal Protection Clause of the Michigan Constitution. For the reasons discussed in this opinion, we affirm.
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 Const. 1963, art. 2, § 4. The article now provides:
(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.
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(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.[ ] 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
We will refer to the period "beginning on the fourteenth (14th) day before that election and continuing through the day of that election" as the "14-day period."
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.[ ]
Before the passage of Proposal 3, Const. 1963, art. 2, § 4 consisted of one paragraph, which was very similar to the current paragraph in § 4(2). It provided:
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 required for identification of candidates for the same office who have the same or similar surnames
Following the 2018 general election, the Legislature enacted 2018 PA 603, which amended MCL 168.497. The first five provisions of MCL 168.497 now provide:
(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) If an applicant for voter registration under subsection (2) does not have proof of residency as that term is
A person registering to vote in the 14-day period does not provide proof of residency simply by presenting a Michigan driver's license or personal identification card. Because the individual "must provide to the city or township clerk proof of residency in that city or township," the Michigan driver's license or personal identification card must include an address located in either the city or township. Both the Priorities USA plaintiffs and the Secretary read MCL 168.497(2) in the same manner. We will refer to a Michigan driver's license or personal identification card that can establish proof of residency under MCL 168.497(2) as a "current Michigan driver's license or personal identification card."
defined in subsection (2), the applicant may provide as his or her proof of residency any other form of identification for election 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 applicant 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 otherwise by a court of law under [ MCL 168.747 or MCL 168.748 ] or any other applicable law.
MCL 168.2(k) defines "identification for election purposes" as the following: "[a]n operator's or chauffeur's license issued under the Michigan vehicle code ... or an enhanced driver license issued under the enhanced driver license and enhanced official state personal identification card act"; "[a]n official state personal identification card ... or an enhanced official state personal identification card issued under the enhanced driver license and enhanced official state personal identification card act"; a current operator's or chauffeur's license issued by another state; a current state personal identification card issued by another state; a current state government-issued photo identification card; a current United States passport or federal government-issued photo identification card; a current military photo identification card; a current tribal photo identification card; or "[a] current student photo identification card issued by a high school in this state, an institution of higher education in this state described in section 4, 5, or 6 of article VIII of the state constitution of 1963, a junior college or community college established under section 7 of article VIII of the state constitution of 1963, or another accredited degree[-] or certificate[-]granting college or university, junior college, or community college located in this state."
An election inspector must identify, as provided in MCL 168.745 and MCL 168.746, a challenged ballot. MCL 168.727(2)(a). Under MCL 168.745, the election inspectors "shall cause to be plainly endorsed on said ballot, with pencil, before depositing the same in the ballot box, the number corresponding to the number placed after such voter's name on the poll lists without opening the same[.]" To prevent the identification of challenged ballots, the election inspectors "shall cause to be securely attached to said ballot, with mucilage or other adhesive substance, a slip or piece of blank paper of the same color and appearance, as nearly as may be, as the paper of the ballot, in such manner as to cover and wholly conceal said endorsement but not to injure or deface the same[.]" MCL 168.746.
Any voter may be challenged under MCL 168.727. In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71 , 479 Mich. 1, 14 n. 24, 740 N.W.2d 444 (2007). Under MCL 168.727(1), "[a]n election inspector shall challenge an applicant applying for a ballot if the inspector knows or has good reason to suspect that the applicant is not a qualified and registered elector of the precinct...." "A registered elector of the precinct present in the polling place may challenge the right of anyone attempting to vote if the elector knows or has good reason to suspect that [the] individual is not a registered elector in that precinct." Id. Additionally, "[a]n election inspector or other qualified challenger may challenge the right of an individual attempting to vote who has previously applied for an absent voter ballot and who on election day is claiming to have never received the absent voter ballot or to have lost or destroyed the absent voter ballot." Id. These challenges shall not be made indiscriminately or without good cause. MCL 168.727(3). If a person attempting to vote is challenged, the person shall be sworn by one of the election inspectors to truthfully answer the questions asked of the person concerning the person's qualifications as an elector. MCL 168.729. If the person's answers to the questions show that the person is a qualified elector in the precinct, the person "shall be entitled to receive a ballot and vote." Id. The person's ballot shall be marked as required by MCL 168.745 and MCL 168.746, but it is counted as a regular ballot. MCL 168.727(2)(a) ; In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71 , 479 Mich. at 14 n. 24, 740 N.W.2d 444.
MCL 168.747 provides:
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.[ ]
MCL 168.748 provides:
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.
See also In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71 , 479 Mich. 1, 14 n. 24, 740 N.W.2d 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. MCL 168.745 ; MCL 168.746. The marked ballot becomes relevant only in the event of litigation surrounding a contested election, where the challenged voter's qualifications to vote are disputed.").
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 instituted automatic voter registration. But the press release says nothing about automatic voter registration only applying to those who are at least 17½ years of age. However, the Secretary does not dispute the Priorities USA plaintiffs’ claim.
Office of the Secretary of State, Secretary Benson Announces Modernized Voter Registration on National Voter Registration Day (September 24, 2019) < https://www.michigan.gov/sos/0,4670,7-127-1640_9150-508246--,00.html> (accessed July 14, 2020) [https://perma.cc/M9ZK-6LRD].
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 MCL 168.497 and the requirement that some voters be issued a challenge ballot unduly burdened the self-executing provisions in Const. 1963, art. 2, § 4. Additionally, PTV and the Priorities USA plaintiffs argued that the proof-of-residency definition violated the Equal Protection Clause of the Michigan Constitution by burdening the right to vote and by treating similarly situated voters differently: those who registered to vote within the 14-day period but who could not show proof of residency with a current Michigan driver's license or personal identification card were issued a challenged ballot. The Priorities USA plaintiffs finally asserted that the Secretary's AVR Policy burdened and curtailed the right in Const. 1963, art. 2, § 4 (1)(d).
Following the consolidation of the two cases and the Legislature's intervention, the Legislature moved for summary disposition under MCR 2.116(C)(10). The Legislature argued that the proof-of-residency amendment in MCL 168.497 was a constitutional exercise of its power to preserve the purity of elections, guard against abuses of the elective franchise, and provide for a system of voter registration and absentee balloting. The Legislature further argued that the Michigan Constitution, following the passage of Proposal 3, did not define "proof of residency," which essentially required the Legislature to exercise its constitutional powers to define the phrase. The Legislature asserted that the definition of "proof of residency" did not violate the Equal Protection Clause because the statute provided reasonable, nondiscriminatory restrictions; thus, it was subject to only rational-basis review, and the state's interest in preventing voter fraud justified the restrictions. Finally, the Legislature argued that the AVR Policy was consistent with Const. 1963, art. 2, § 4 because the right to be automatically registered to vote only applies to those who are entitled to register to vote, namely, individuals who are 17½ years of age or older. The Secretary also moved for summary disposition under MCR 2.116(C)(10). Regarding the AVR Policy, the Secretary was automatically registering individuals to vote pursuant to the Michigan Constitution and statute, not a policy. The Secretary also argued that the definition of "proof of residency" did not impose an unconstitutional burden on the right to vote because the Legislature properly supplemented Const. 1963, art. 2, § 4. Furthermore, an individual can register to vote in the 14-day period by signing an affidavit that the individual does not have a form of identification for election purposes and by presenting a document from a broad array of documents listed in the statute. Relatedly, an individual whose ballot must be marked as a challenged ballot casts either a regular ballot or an absent-voter ballot. The ballot is merely marked so that it can later be identified if an election is contested. A challenged ballot does not require the individual to reveal the content of the ballot. Individuals who cannot produce a current Michigan driver's license or personal identification card and are required to vote a challenged ballot are not denied equal protection. Individuals who must vote a challenged ballot are not similarly situated to individuals who have a current Michigan driver's license or personal identification card. The use of alternative—and sometimes less objective—forms of proof of residency reasonably warrants additional procedural requirements.
The Court of Claims granted the Legislature's motion to intervene in Court of Claims Docket No. 19-000191-MZ, and the Priorities USA plaintiffs do not challenge that order on appeal.
In PTV's motion for summary disposition under MCR 2.116(C)(10), PTV argued that MCL 168.497 imposed additional obligations on the self-executing rights of Const. 1963, art. 2, § 4. The term "residence" is generally understood as the place where a person lives. In MCL 168.497, the Legislature defined "proof of residency" to mean more than simply proof of where one lives. It defined "proof of residency" to include proof of identity, i.e., a driver's license or personal identification card. Although MCL 168.497 did not require a person registering to vote in the 14-day period to provide a current Michigan driver's license or personal identification card, the Legislature narrowly limited the documents that it would accept as proof of residency, which curtailed and burdened the rights guaranteed by Const. 1963, art. 2, § 4. Additionally, under MCL 168.497, only those who provide a current Michigan driver's license or personal identification card receive a regular or absent-voter ballot. All others receive a challenged ballot, which is not a regular or absent-voter ballot and which is also not a secret ballot.
PTV also argued that MCL 168.497 failed to provide equal protection of the law. The statute creates three classes of voters: (1) those who present a current Michigan driver's license or personal identification card and are allowed to vote a regular or absent-voter ballot; (2) those who submit other proof of identity, or who execute an affidavit attesting that they do not possess any of the acceptable forms of proof of identity, with one of a limited number of documents establishing residency and are required to vote a challenged ballot, and (3) those who do not have one of the limited number of documents establishing residency and are not allowed to vote. According to PTV, MCL 168.497 imposed a severe burden on the rights of the voters in the second class. Those voters had to vote a challenged ballot, which required extra time by the clerk's office and, in turn, required the voters to wait longer. PTV further argued that MCL 168.497 imposed a severe burden on the rights of the voters in the third class because these voters were deprived of their right to vote and there was no compelling state interest justifying the deprivation. 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, approximately 2,000 Michigan residents who were eligible to vote and planned to vote in 2020 were asked about whether they had the documents listed in MCL 168.497. According to Herron, approximately 1.6% of the participants answered that they did not have documentation that would satisfy the requirements of MCL 168.497, and 1.6% of citizens of voting age in Michigan is 159,320 individuals. According to Herron, the survey also showed that approximately 6% of the participants who were younger than 25 years of age lacked documentation that would satisfy the requirements of MCL 168.497. The participants in the second survey were students at Michigan colleges or universities. According to Herron, of the students who were United States citizens and not registered to vote in Michigan, approximately 16.9% of them did not have documentation that would satisfy the requirements of MCL 168.497. Herron believed that approximately 15,514 of the college and university students in Michigan would not be able to provide proof of residency under MCL 168.497. Herron also reviewed records the Secretary provided that indicated that, in the five elections following the passage of Proposal 3,264 individuals (94 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 Const. 1963, art. 2, § 4, following the passage of Proposal 3, were "self-executing" and that the requirements of MCL 168.497(2) to (5) were unconstitutional because they unduly restricted the new rights recognized in the Michigan Constitution. The Court of Claims held that while the Legislature may not enact laws that impose additional burdens on self-executing constitutional provisions, it may enact laws that supplement those provisions, such as laws that provide clarity and safeguard against abuses. Because the phrase "proof of residency" was undefined in Const. 1963, art. 2, § 4, and the residence of a voter is essential for voting purposes, the Legislature properly supplemented the constitutional provision when it defined the phrase.
Next, the Court of Claims rejected the argument that the AVR Policy unduly burdened and curtailed the rights in Const. 1963, art. 2, § 4. The AVR Policy was not a policy but "rather a restatement of state law, specifically MCL 168.493a and MCL 168.492, and is consistent with the right of ‘electors qualified to vote’ being entitled to automatically register to vote when doing business with the secretary of state offices." Further, the Michigan Constitution defines an elector qualified to vote as any resident who has reached the age of 18, and a qualified voter may be automatically registered to vote as a result of conducting business with the Secretary of State. The Court of Claims stated that under MCL 168.492, an elector qualified to vote is someone 17½ years of age or older, "and nowhere does the Constitution grant individuals under the age of [17½] the right to be automatically registered when conducting business with the secretary of state."
The Court of Claims then addressed whether MCL 168.497 placed an unconstitutional burden on voters. The court noted that, although the right to vote was not enumerated in either the federal or state Constitutions, the United States Supreme Court has held that citizens have a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. Furthermore, the court held, the right to vote is not absolute. A state has the power to impose voter qualifications and to regulate access to the franchise in many different ways. The court rejected the argument that the Legislature's definition of "proof of residency" in MCL 168.497 placed a severe burden on the constitutional right to register to vote in the 14-day period. The statute imposed some burden on voters—the statute requires an individual to bring to the election office or polling place some form of proof of residency. But the Court of Claims held that this was a reasonable, nondiscriminatory restriction given the wide variety of documents that constituted acceptable ways to establish proof of residency. Additionally, if a voter did not have an acceptable proof of residency in the form of a driver's license or a personal identification card, "that person may vote with a challenged ballot that is counted that day, the same as all other ballots," so long as the voter produces one of the acceptable forms of proof of residency.
The Court of Claims also rejected the Priorities USA plaintiffs’ suggestion that younger voters will be most harmed by MCL 168.497. First, because it was a facial challenge to MCL 168.497, there could not be a focus on any possible effects on a discrete population; the focus must be on the voting population as a whole. Second, the argument "overlook[ed] the broad range of 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 MCL 168.497(5) that challenged ballots be issued to those who register to vote in the 14-day period without providing a current Michigan driver's license or personal identification card violates equal protection because it denied those voters the right to a secret ballot. The court reasoned that challenged ballots were treated the same as any other ballot on election day. "[D]espite [the challenged ballot] being marked on the outside as challenged, upon presentment of identification, the voter was eligible to receive, and did receive, a regular ballot," which complied with Const. 1963, art. 2, § 4 (1)(f). To the extent that any burden was placed on a voter's right, it was minimal. A challenged ballot was a secret ballot because it was counted in the same way as a normal ballot, and the contents were not revealed to the public. The Court of Claims explained:
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 by concluding that there is no constitutional right to vote; that MCL 168.497 impermissibly imposed additional obligations on the self-executing provisions of Const. 1963, art. 2, § 4(1)(a) and § 4 (1)(f); and that the requirement of issuing a challenged ballot was burdensome, unconstitutional, and served no legitimate state interest. In Docket No. 354096, the Priorities USA plaintiffs similarly argue that the Court of Claims erred by concluding that MCL 168.497 did not violate the self-executing provisions of Const. 1963, art. 1, § 2 and art. 2, § 4 ; that the AVR Policy did not violate the self-executing provision of Const. 1963, art. 2, § 4 ; and that they were entitled to a preliminary injunction. We disagree.
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 N.W.2d 221 (2017). Summary disposition is proper under MCR 2.116(C)(10) if, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law."
This Court also reviews de novo questions of constitutional law. Bonner v. Brighton , 495 Mich. 209, 221, 848 N.W.2d 380 (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 N.W.2d 444 (2007) (quotation marks and 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, 848 N.W.2d 380 ; In re Request for Advisory Opinion , 479 Mich. at 11 & n. 20, 740 N.W.2d 444. "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 , 479 Mich. at 11 & n. 20, 740 N.W.2d 444 (quotation marks and citation omitted). The challenges to MCL 168.497 are facial challenges. PTV and the Priorities USA plaintiffs are asking that MCL 168.497(2) to (5) be declared unconstitutional in all circumstances. They do not claim that the statute is unconstitutional only when applied in a specific circumstance.
"A party challenging the facial constitutionality of [a statute] ‘faces an extremely rigorous standard.’ " Bonner , 495 Mich. at 223, 848 N.W.2d 380 (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 Organizations & Others for Ed. About Parochiaid, Inc. v. Governor , 455 Mich. 557, 568, 566 N.W.2d 208 (1997) (quotation marks, brackets, and citation omitted). Indeed, "if any state of facts reasonably can be conceived that would sustain [a legislative act], the existence of the state of facts at the time the law was enacted must be assumed." Id. (quotation marks, brackets, and citation omitted). "[B]ecause facial attacks, by their nature, are not dependent on the facts surrounding any particular decision, the specific facts surrounding plaintiffs’ claim are inapposite." Bonner , 495 Mich. at 223, 848 N.W.2d 380.
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 constitutions ...." 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 U.S. 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 Fifteenth Amendment states, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const., Am. XV. Nearly identical language is used in the Nineteenth and Twenty-Sixth Amendments, which prohibit denying or abridging the right to vote on the basis of gender or age, respectively. See U.S. Const., Ams. XIX and XXVI.
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 U.S. 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 U.S. 1, 17, 84 S. Ct. 526, 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 U.S. at 336, 92 S.Ct. 995 (quotation marks and citation omitted).
Following the passage of Proposal 3 in Michigan, this state's Constitution now reads, "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." Const. 1963, art. 2, § 4 (1)(a). Although decided before the passage of Proposal 3 and the relevant amendment of our state's Constitution, our Supreme Court stated in In re Request for Advisory Opinion , 479 Mich. at 16, 740 N.W.2d 444, that "the right to vote is an implicit fundamental political right that is preservative of all rights." (Quotation marks and citation omitted.) Our Supreme Court continued, "However, ‘[t]his equal right to vote is not absolute ....’ " Id ., quoting Dunn , 405 U.S. at 336, 92 S.Ct. 995 (quotation marks omitted; alteration in original).
PTV and the Priorities USA plaintiffs assert that Const. 1963, art. 2, § 4 (1)(a) provides a constitutional right to vote. This section unambiguously provides that a qualified citizen has the "right, once registered, to vote a secret ballot in all elections." Const. 1963, art. 2, § 4 (1)(a). However, this section does not provide that an individual has an absolute constitutional right to vote; the individual must first be a qualified elector who has registered to vote. Id. Although the Michigan Constitution now expressly provides for the right to vote, certain requirements must be met before an individual can exercise his or her fundamental political right to vote. Despite the Court of Claims’ quotation of caselaw predating the passage of Proposal 3, the court's opinion recognized the constitutionally protected status of the right to vote. Thus, there is no error requiring reversal.
C. SELF-EXECUTING CONSTITUTIONAL PROVISIONS
PTV and the Priorities USA plaintiffs argue that the Legislature's definition of "proof of residency" in MCL 168.497 and the requirement in MCL 168.497(5) that a challenged ballot be issued to anyone who registers to vote in the 14-day period without providing a current Michigan driver's license or personal identification card unduly burden the rights in Const. 1963, art. 2, § 4(1)(f). They claim that because the rights in Const. 1963, art. 2, § 4 (1) are self-executing rights, the statutory provisions are unconstitutional. The Priorities USA plaintiffs also argue that the Secretary's AVR Policy unduly burdens the right in Const. 1963, art. 2, § 4(1)(d). We disagree.
There is no dispute among the parties that the rights in Const. 1963, art. 2, § 4 (1) are self-executing. "A constitutional provision is deemed self-executing, if it supplies a sufficient rule, by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced...." League of Women Voters of Mich. v. Secretary of State , 331 Mich. App. 156, 178, 952 N.W.2d 491 (2020) (quotation marks and citation omitted). While the Legislature may not impose additional obligations on a self-executing constitutional provision, Wolverine Golf Club v. Secretary of State , 384 Mich. 461, 466, 185 N.W.2d 392 (1971) ; Durant v. Dep't of Ed. (On Second Remand) , 186 Mich. App. 83, 98, 463 N.W.2d 461 (1990), it may enact laws that supplement a self-executing constitutional provision, see Wolverine Golf Club , 384 Mich. at 466, 185 N.W.2d 392. Statutes that supplement a self-executing constitutional provision may not curtail the constitutional rights or place any undue burdens on them. See id. ; Durant , 186 Mich. App. at 98, 463 N.W.2d 461. Additionally, the statutes must be in harmony with the spirit of the Michigan Constitution, and their object must be to further the exercise of the constitutional rights and make them more available. League of Women Voters of Mich. , 331 Mich. App. at 179, 952 N.W.2d 491. Statutes that supplement a self-executing provision may be desirable "by way of providing a more specific and convenient remedy and facilitating the carrying into effect or execution of the rights secured, making every step definite, and safeguarding the same so as to prevent abuses." Wolverine Golf Club v. Secretary of State , 24 Mich. App. 711, 730, 180 N.W.2d 820 (1970) (opinion by LESINSKI , C.J.) (quotation marks and citation omitted), aff'd 384 Mich. 461, 185 N.W.2d 392 (1971). 1. PROOF OF RESIDENCY
Under Const. 1963, art. 2, § 4 (f)(2), a person who seeks to register to vote "beginning on the fourteenth (14th) day before that election and continuing through the day of that election" must submit "a completed voter registration application" and provide "proof of residency...." A person's residence, for purposes of Michigan election law, is the "place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence ... that place at which the person resides the greater part of the time shall be his or her official residence...." MCL 168.11(1). An individual may only vote in the township or city in which the individual resides. See MCL 168.491 ; MCL 168.492. Because an individual may only vote in the township where he or she resides, the individual's residence dictates which candidates and proposals the individual may vote for.
MCL 168.497(2) requires an individual who applies to register to vote in the 14-day period to provide proof of residency. This is not an additional requirement; Const. 1963, art. 2, § 4 (1)(f) specifically provides that a person who registers to vote in the 14-day period must provide proof of residency. In MCL 168.497(2) to (5), the Legislature defined "proof of residency". Because there is no definition of "proof of residency" in Const. 1963, art. 2, § 4 (1), the Legislature's definition of "proof of residency" is a law that supplements the constitutional provision.
A definition from the Legislature of "proof of residency" was desirable. Wolverine Golf Club , 24 Mich. App. at 730, 180 N.W.2d 820. 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 Const. 1963, art. 2, § 4 (2) 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. Accordingly, a legislative definition of "proof of residency," which makes definite what documents can be used as proof of residency, is in harmony with the Legislature's obligations under the Michigan Constitution concerning the administration of elections and furthers the exercise of voter registration in the 14-day period. League of Women Voters of Mich. , 331 Mich. App. at 179, 952 N.W.2d 491.
"The phrase ‘purity of elections’ does not have a single precise meaning. However, it unmistakably requires fairness and evenhandedness in the election laws of this state." Barrow v. Detroit Election Comm. , 305 Mich. App. 649, 676, 854 N.W.2d 489 (2014) (quotation marks and citation omitted).
Additionally, even though the Priorities USA plaintiffs have presented evidence that the Legislature's definition of "proof of residency" in MCL 168.497 has prevented, and may prevent, individuals who are qualified to vote from registering in the 14-day period, the Legislature's definition of "proof of residency" does not unduly burden the right to register to vote in the 14-day period. Under MCL 168.497, a person provides proof of residency if the person presents: (1) a current Michigan driver's license or personal identification card, MCL 168.497(2) ; (2) "any other form of identification for election purposes," which includes driver's licenses and personal identification cards issued by other states and student photo identification cards, see MCL 168.2(k), along with a current utility bill, a current bank statement, or a current paycheck, government check, or other government document, MCL 168.497(3) ; or (3) an affidavit indicating that the individual does not have "identification for election purposes" and a current utility bill, a current bank statement, or a current paycheck, government check, or other government document, MCL 168.497(4).
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, Const. 1963, art. 2, § 4 (1)(f) requires an individual to provide proof of residency when registering to vote in the 14-day period, and MCL 168.497(2) to (4) define what documents are acceptable to fulfill that constitutional requirement. Because the Legislature's definition does not unduly burden the right to register to vote in the 14-day period, the definition is a proper supplement to Const. 1963, art. 2, § 4 (1)(f).
2. CHALLENGED BALLOTS
We reject the claims of PVT and the Priorities USA plaintiffs that MCL 168.497(5), which requires that a challenged ballot be issued to anyone who registers to vote in the 14-day period without providing a current Michigan driver's license or personal identification card, unduly burdens the rights in Const. 1963, art. 2, § 4 (1)(a) and (f). Under Const. 1963, art. 2, § 4 (1)(f), a person who registers to vote in accordance with that subsection "shall be immediately eligible to receive a regular or absent voter ballot." Under Const. 1963, art. 2, § 4 (1)(a), a voter is entitled to "a secret ballot."
Michigan election law defines a "regular ballot" as "a ballot that is issued to a voter on election day at a polling place location." MCL 168.3(h). An "absent voter ballot" is "a ballot that is issued to a voter through the absentee voter process." MCL 168.2(b). A challenged ballot is not a third type of ballot. Rather, a challenged ballot is either a regular ballot or an absent-voter ballot that is marked (and the mark subsequently concealed) with the number corresponding to the voter's poll list number. See MCL 168.745 ; MCL 168.746 ; MCL 168.761(6) ; In re Request for Advisory Opinion , 479 Mich. at 14 n. 24, 740 N.W.2d 444. Notably, a challenged ballot is entered and tabulated with all the other ballots that are cast. See MCL 168.497(5) ; In re Request for Advisory Opinion , 479 Mich. at 14 n. 24, 740 N.W.2d 444.
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 N.W. 6 (1907) ; People v. Cicott , 16 Mich. 283, 297 (1868), overruled in part on other grounds by Petrie v. Curtis , 387 Mich. 436, 196 N.W.2d 761 (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 Const. 1963, art. 2, § 4 provided a right to a secret ballot. Belcher v. Mayor of Ann Arbor , 402 Mich. 132, 134, 262 N.W.2d 1 (1978). This right is not absolute; upon a showing that the voter acted fraudulently, the right can be abrogated. Id. ("We hold that a citizen's right to a secret ballot in all elections as guaranteed by Const. 1963, art. 2, § 4, cannot be so abrogated in the absence of a showing that the voter acted fraudulently."). In a contested election, a challenged ballot may be inspected. See MCL 168.747. But, it may only be inspected if the person consents, the person has been convicted of falsely swearing in such ballot, or if it has been determined that such person was an unqualified elector at the time of casting the ballot. Id. Because the right to a secret ballot is not absolute, the fact that a challenged ballot may be inspected in a contested election, MCL 168.747, does not mean that it is not a secret ballot.
3. AVR POLICY
The Secretary's AVR Policy does not unduly burden the right in Const. 1963, art. 2, § 4 (1)(d). Under Const. 1963, art. 2, § 4 (1), "[e]very citizen of the United States who is an elector qualified to vote in Michigan shall have [certain] rights[.]" In other words, the rights listed in Const. 1963, art. 2, § 4 (1), including "[t]he 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," Const. 1963, art. 2, § 4 (1)(d), are rights of any "citizen of the United States who is an elector qualified to vote in Michigan...." An individual is not an elector qualified to vote in Michigan— and entitled to the rights listed in Const. 1963, art. 2, § 4 (1)—until the individual reaches 18 years of age. See U.S. Const., Am. XXVI ; Const. 1963, art. 2, § 1 ; In re Request for Advisory Opinion , 479 at 47 n. 1, 740 N.W.2d 444 ( CAVANAGH , J., dissenting). 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 MCL 168.492. The statute provides:
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 MCL 168.492, which allows an individual who is not less than 17½ years of age to register to vote, the argument that the AVR Policy unduly burdens the right in Const. 1963, art. 2, § 4 (1)(d) is without merit.
D. EQUAL PROTECTION
PTV and the Priorities USA plaintiffs argue that MCL 168.497 violates the Equal Protection Clause of the Michigan Constitution. Const. 1963, art. 1, § 2 provides that "[n]o person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin." The Equal Protection Clause of the Michigan Constitution is coextensive with the Equal Protection Clause of the United States Constitution. Shepherd Montessori Ctr. Milan v. Ann Arbor Charter Twp. , 486 Mich. 311, 318, 783 N.W.2d 695 (2010). Equal protection applies when a state either classifies voters in disparate ways or places undue restrictions on the right to vote. Obama for America v. Husted , 697 F.3d 423, 428 (C.A. 6, 2012). The Priorities USA plaintiffs argue that MCL 168.497(5) violates equal protection because it treats similarly situated voters differently. According to them, although Const. 1963, art. 2, § 4 (1)(f) guarantees that all individuals who register to vote in the 14-day period shall receive a regular or absent-voter ballot, under MCL 168.497(5), only those who submit a current Michigan driver's license or personal identification card as their proof of residency receive a regular or absent-voter ballot. PTV similarly argues that many people who register to vote in the 14-day period are denied the right to receive a regular or absent-voter ballot. The basis for these arguments is that a challenged ballot does not constitute a regular or absent-voter ballot. But, as previously discussed, a challenged ballot is a regular or absent-voter ballot. As also laid out previously, a challenged ballot does not lose its character as a secret ballot unless the election is contested. Regardless of how an individual provides proof of residency, as defined in MCL 168.497, the individual receives a regular or absent-voter ballot that is also a secret ballot. Similarly situated voters are not treated differently under MCL 168.497(5).
The Priorities USA plaintiffs argue that the Legislature's definition of "proof of residency" in MCL 168.497 severely burdens the right to vote because it has, and will, disenfranchise 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 U.S. 780, 788, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983). 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 U.S. 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:
Regardless of whether the right to vote, following the passage of Proposal 3, is now an expressly enumerated right in the Michigan Constitution, the United States Supreme Court has recognized that the right to vote is a " ‘a fundamental political right’ " that "is preservative of other basic civil and political rights...." Reynolds v. Sims , 377 U.S. 533, 562, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964) (citation omitted). A citizen has "a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Dunn , 405 U.S. at 336, 92 S.Ct. 995. The right to vote, however, is not absolute; a state has the power to impose voter qualifications and to regulate access to the franchise in other ways. Id. ; see also Const. 1963, art. 2, § 4 (2).
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, 112 S. Ct. 2059 (citations omitted).]
See also In re Request for Advisory Opinion , 479 Mich. at 21-22, 740 N.W.2d 444, in which our 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, 740 N.W.2d 444.
The Legislature's definition of "proof of residency" does not impose a severe burden on the right to vote. Because Const. 1963, art. 2, § 4 (1) does not define "proof of residency," the Legislature provided a definition in MCL 168.497, and the Legislature's definition allows individuals to provide proof of residency with a broad array of ordinary, common documents that are available to persons of all voting ages. The Priorities USA plaintiffs have presented evidence that there are individuals who are qualified to vote and who could not provide proof of residency, as defined in MCL 168.497, in the 14-day period leading up to the March 2020 presidential primary.
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. Const. 1963, art. 2, § 4 (1)(e). An individual can register to vote by appearing in person and submitting a completed voter-registration application on or before the 15th day before the election. Const. 1963, art. 2, § 4 (1)(f). See also MCL 168.497(1) (allowing an individual to register to vote in person, by mail, or online until the 15th day before the election). Additionally, an individual can register to vote in the 14-day period by appearing in person, submitting a completed voter-registration application, and providing proof of residency. Const. 1963, art. 2, § 4 (1)(f).
The Priorities USA plaintiffs make no claim that any person who is unable to provide proof of residency, as defined in MCL 168.497, in the 14-day period would not be able to register to vote on or before the 15th day before the election. Notably, election days are set by the Michigan Constitution and by statute. See Const. 1963, art. 2, § 5 ; MCL 168.641. Consequently, one should not be uninformed regarding when an election is to be held. Furthermore, it is not unreasonable to expect an individual who wishes to vote in an election, but who is not registered to vote or who has moved since registering to vote, to make inquiries or conduct research—in advance of the election—regarding how to register to vote. In doing so, an individual can learn the different options for registering to vote and the documents that are needed for each method. These inquiries are not a severe or substantial burden. Cf. Crawford v. Marion Co. Election Bd. , 553 U.S. 181, 198, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008) (opinion by STEVENS , J.) (indicating that the inconvenience for those who need a photo identification to vote by gathering the required documents, making a trip to the bureau of motor vehicles, and posing for a photograph does not qualify as a substantial burden); id. at 205, 128 S. Ct. 1610 ( SCALIA , J., concurring in the judgment) (stating that burdens are severe if they go beyond the merely inconvenient and that "[o]rdinary and widespread burdens, such as those requiring ‘nominal effort’ of everyone, are not severe"). Furthermore, while the Priorities USA plaintiffs claim that the Legislature's definition of "proof of residency" is narrow, they make no claim that a more expansive list of specific documents, such as those which the Secretary allows to constitute proof of residency when one applies for a driver's license or personal identification card, would allow a significant number of individuals who cannot provide proof of residency, as defined by MCL 168.497, to provide it.
These documents include a credit-card bill; bank statement; Michigan school transcript; mortgage, lease, or rental agreement; insurance policy; and vehicle title and registration. See Michigan Secretary of State, Driver's License or ID Requirements , SOS-428 (revised June 2020).
The Legislature's definition of "proof of residency" in MCL 168.497 is a reasonable, nondiscriminatory restriction that applies to all individuals who seek to register to vote in the 14-day period. See In re Request for Advisory Opinion , 479 Mich. at 25, 740 N.W.2d 444. It does not, therefore, violate equal protection of the law.
Furthermore, the Legislature's definition of "proof of residency" is warranted by the state's regulatory interests. Id. at 22, 740 N.W.2d 444. 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. Const. 1963, art. 2, § 4 (2). These obligations include ensuring that fraudulent voting does not dilute the votes of lawful voters. In re Request for Advisory Opinion , 479 Mich. at 19-20, 740 N.W.2d 444. Because a person's residence dictates the candidates and proposals for which the person may vote, see MCL 168.492, the Legislature has an interest in ensuring that only residents of a city or township vote in that city or township. By defining "proof of residency," a phrase undefined by Const. 1963, art. 2, § 4 (1), the Legislature has enacted a statute that helps to preserve the purity of elections and aids in providing for a system of voter registration. The clerks of Michigan's cities and townships, as well as those qualified to vote in Michigan, now know what documents are needed to establish proof of residency in the 14-day period.
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 card or a utility bill, bank statement, paycheck, government check, or other government document with the person's name and current address, the Legislature has required the person to provide a document—created by a neutral, detached third party—that connects the person with their place of residence.
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 Const. 1963, art. 2, § 4 (1)(f). Additionally, the 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 , 479 Mich. at 26-27, 740 N.W.2d 444, in which 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]he primary objective of constitutional interpretation, not dissimilar to any other exercise in judicial interpretation, is to faithfully give meaning to the intent of those who enacted the law." Nat'l Pride at Work, Inc. v. Governor , 481 Mich. 56, 67, 748 N.W.2d 524 (2008). Under Const. 1963, art. 2, § 4 (1)(f), when a person registers to vote in person, the documents that the person must present to the election official depend on when the person registers to vote. If the person registers to vote on or before the 15th day before the election the person must submit "a completed voter registration application." Id. But if the person registers to vote during the 14-day period, the person must submit "a completed voter registration application" and provide "proof of residency." Id. Consequently, it is apparent that the voters who enacted Proposal 3 intended that those who register to vote in the 14-day period must provide more documents than those who register to vote on or before the 15th day before the election—in addition to submitting a completed voter-registration application, they must also provide proof of residency.
[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; second and third alterations in original.]
We also reject the Priorities USA plaintiffs’ claim that the Legislature's definition of "proof of residency" was not justified because other statutes adequately prevent voter fraud. They point to MCL 168.933, which provides that "[a] person who makes a false affidavit or swears falsely while under oath ... for the purpose of securing registration, for the purpose of voting at an election ... is guilty of perjury." In In re Request for Advisory Opinion , 479 Mich. at 28 n. 69, 740 N.W.2d 444, the Supreme Court rejected a similar argument that the picture identification requirement of MCL 168.523(1) was not justified because there were statutes that imposed criminal penalties for those who impersonated another for voting purposes. It explained:
[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, MCL 168.933 does not dispel the Legislature's interest in preventing voter fraud during the 14-day period.
Finally, PTV, in arguing that MCL 168.497 violates equal protection, focuses on the burden that is caused by the actual issuance of challenged ballots. According to PTV, because it takes longer for a challenged ballot to be issued, which results in longer lines, the requirement that challenged ballots be issued to those who register in the 14-day period without a current Michigan driver's license or personal identification card burdens the right to vote.
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 U.S. at 205, 128 S.Ct. 1610 ( SCALIA , J., concurring in the judgment). Additionally, the burden is justified by the state's interest in preventing voter fraud. See In re Request for Advisory Opinion , 479 Mich. at 19-20, 740 N.W.2d 444. 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 MCL 168.747 ; Belcher , 402 Mich. 132, 262 N.W.2d 1. It was reasonable for the Legislature to conclude that it was less likely that those persons who register to vote in the 14-day period with a current Michigan driver's license or identification card would be committing fraud than those who register without one. Those who register to vote with a current Michigan driver's license or personal identification card have a government-issued identification that contains their picture and their current address. But someone who registers to vote by providing "any other form of identification for election purposes" may have picture identification with a noncurrent address, such as a driver's license or personal identification card issued by another state, or no address for the person, such as a student photo identification card, and someone who registers to vote by submitting an affidavit that he or she does not have "identification for election purposes" simply provides no photo identification at all.
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 MCL 168.497 represents a considered policy judgment of the political branches of our government. That policy judgment is one with which our dissenting colleague clearly disagrees. Indeed, our colleague states that she might have upheld the statute had the Legislature enacted a definition of "proof of residency" more in line with what she considers to be its "well-understood meaning." 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 N.W.2d 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.
The dissent lays out the list of documents the Secretary of State accepts as proof of residency when seeking to obtain a driver's license or personal identification card; that list is more expansive than the list in MCL 168.497. First, given the Legislature's duty to preserve the purity of elections and to ensure that the votes of qualified electors are not unfairly diluted, the Legislature was within its rights to require a higher standard of proof of residency for voting purposes than for driving purposes. As to the dissent's argument that the list the Legislature chose discriminates on the basis of income, we note that the more expansive list the dissent appears to prefer includes items such as utility bills, bank statements, mortgages, pay stubs, life insurance policies, and other documents that presume a certain economic status. This appears unavoidable in any scheme designed to establish a person's residency.
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 of residency. Indeed, the Legislature considers it to be the highest and best proof of residency given that a prospective voter need not supply any other documentation within the 14-day period so long as the voter presents either of those documents reflecting an address within the voting jurisdiction.
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 MCL 168.497 and the requirement in MCL 168.497(5) that a challenged ballot be issued to any person who registers to vote in the 14-day period without providing a current Michigan driver's license or personal identification card do not unduly burden any of the rights in Const. 1963, art. 2, § 4 (1)(a) and (f). The Secretary's AVR Policy also does not unduly burden the right in Const. 1963, art. 2, § 4 (1)(d). Additionally, the Legislature's definition of "proof of residency" in MCL 168.497 and the requirement in MCL 168.497(5) concerning the issuance of challenged ballots do not violate equal protection.
Affirmed.
Gadola, J., concurred with Meter, P.J.
Ronayne Krause, J. (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part. At its essence, the gravamen of plaintiffs’ claims is two-fold: first, portions of MCL 168.497 impermissibly restrict rights guaranteed by Const. 1963, art. 2, § 4 ; and secondly, the Secretary of State should be automatically registering everyone who ever transacted with the Secretary of State at any age. I agree with my colleagues’ recitation of the law governing our standard of review. I further take no issue with my colleagues’ recitation of the procedural background of this matter. Finally, I agree with the outcome reached by the majority regarding the Secretary of State's automatic voter registration policy. However, I believe that this matter is much simpler and more straightforward than does the majority and that much of the law and discussion the majority provides, while thoughtful, is either unnecessary or predicated on outdated law.
Although I maintain that the Legislature does not have standing to participate in this matter, League of Women Voters of Mich. v. Secretary of State , 331 Mich. App. 156, 168-175, 952 N.W.2d 491 (2020), I take no exception under the circumstances to considering the Legislature's arguments as if they had been presented to this Court in an amicus brief.
I. RIGHT TO VOTE
Plaintiffs first argue that the Court of Claims erred by holding that there is no right to vote in Michigan. If that had been the holding of the Court of Claims, it unambiguously would have been wrong. "All political power is inherent in the people." Const. 1835, art. 1, § 1 ; Const. 1908, art. 2, § 1 ; Const. 1963, art. 1, § 1. Indeed, the entire point of the American Revolution was a lack of representation by the people in their government. Const. 1963, art. 2, § 4 (1) mandates that it must "be liberally construed in favor of voters’ rights...." In fact, it specifically provides that electors qualified and registered to vote have a right "to vote a secret ballot in all elections." Const. 1963, art. 2, § 4 (1)(a). However, the Court of Claims was, for better or for worse, correct to state that there is no absolute right to vote. Const. 1963, art. 2, § 1 specifically conditions the right to vote on "except as otherwise provided in this constitution." 52 USC § 10101(a)(1) of the Voting Rights Act conditions the right to vote on being "otherwise qualified by law." Whether such a policy is wise or just, incarcerated persons convicted of crimes may not vote. MCL 168.758b. The Court of Claims did not err when it expressed a more nuanced understanding of the right to vote in Michigan.
However, it is critical to review the constitutional provision at issue in this matter because the Court of Claims clearly erred in its understanding of the nature of that nuance. Currently, Const. 1963, art. 2, § 4 provides, in relevant part, as follows:
(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. 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 circumstance, 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.
Subsection (2) preserves some, but not all , of the language found in Const. 1963, art. 2, § 4before it was amended by Proposal 3. Former Const. 1963, art. 2, § 4 provided, in relevant part:
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 legislature 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.....
Similarly, former Const. 1850, art. 7, § 6 and Const. 1908, art. 3, § 8 both provided, in part, that "[l]aws [may or shall] be passed to preserve the purity of elections and guard against abuses of the elective franchise."
Notably, for the first time in Michigan's history, the changes enacted by Proposal 3 now expressly make the Legislature's right and obligation 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" subject to any other provisions in the Constitution. It is well established that the Legislature may impose some regulations on voting and registration. However, caselaw relying on the unconditional grant of authority provided in outdated versions of Const. 1963, art. 2, § 4 and its predecessors is now highly suspect. See Todd v. Bd. of Election Comm'rs , 104 Mich. 474, 481-483, 64 N.W. 496 (1895) (reviewing "the power of the legislature to pass acts to maintain the purity of elections, which is expressly conferred upon them by Const. [1850] art. 7, § 6"); In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71 , 479 Mich. 1, 16-18, 34-36, 740 N.W.2d 444 (2007) (discussing the balance between the right to vote and the Legislature's responsibility under former Const. 1963, art. 2, § 4 ). To be clear: there is still no absolute right to vote in Michigan, and the Legislature is still not absolutely precluded from imposing regulations on voting and registration. However, the obvious significance of Proposal 3 is that the Legislature's power to do so has been severely curtailed. The addition of "[e]xcept as otherwise provided in this constitution" simultaneously with a mandate to construe the newly enacted rights "liberally ... in favor of voters’ rights in order to effectuate its purposes" unambiguously subjects any regulations or restrictions imposed by the Legislature to a higher degree of scrutiny. The Court of Claims and the majority fundamentally err by failing to recognize that the historic deference given to the Legislature in this context is no longer appropriate or permissible.
II. AUTOMATIC REGISTRATION AT ANY AGE
I respectfully concur with my colleagues’ conclusion that the Secretary of State's "automatic voter registration" (AVR) policy is not unconstitutional, albeit on the basis of somewhat different reasoning.
The rights conferred by Const. 1963, art. 2, § 4 are only enjoyed by citizens who are "elector[s] qualified to vote in Michigan." As the majority observes, this excludes any person under the age of 18. Const. 1963, art. 2, § 1 ; U.S. Const., Am. XXVI, § 1. Therefore, any person under the age of 18 has no right to be automatically registered to vote. Pursuant to MCL 168.492, a person may nevertheless register to vote at the age of 17½. Clearly, the Secretary of State would not even be permitted to register a person to vote if that person has not attained the age of 17½.
It appears that plaintiffs believe the phrase "as a result of conducting business" in Const. 1963, art. 2, § 4 (1)(d) should be construed as meaning an eventual consequence of having ever had any transaction with the Secretary of State. Thus, the Secretary of State would be obligated to scour its records, find anyone who is not registered to vote, monitor for any of those persons attaining the age of 17½, and then register those persons without notice. In contrast, the Secretary of State clearly regards the phrase as meaning a direct result of any particular discrete transaction. First, the Secretary of State's interpretation is clearly reasonable. See Council of Organizations & Others for Ed. About Parochiaid, Inc. v. Governor , 455 Mich. 557, 568-570, 566 N.W.2d 208 (1997). Importantly, the Constitution and MCL 168.492 unambiguously establish that persons under the age of 17½ and over the age of 17½ are not similarly situated for purposes of voter registration; consequently, the Secretary of State's AVR policy cannot constitute a violation of equal protection on that basis. See Crego v. Coleman , 463 Mich. 248, 258-259, 273, 615 N.W.2d 218 (2000). Furthermore, the Secretary of State's AVR policy, as apparently currently implemented, provides persons with the option of not registering. In other words, it provides persons with notice and with a choice. There is actually a right to not vote. Mich. State UAW Community Action Program Council v. Austin , 387 Mich. 506, 515, 198 N.W.2d 385 (1972). There might be some reason why a particular person would wish to decline registration. Plaintiffs’ construction would, in effect, require the Secretary of State to engage in efforts that might not even be technologically feasible but— critically—would result in registering people without particularized notice and potentially against their will. As a consequence, I find plaintiffs’ construction unreasonable. Therefore, I concur with the majority that the AVR policy, at least as described in the press release, does not unduly burden the right to vote found in Const. 1963, art. 2, § 4 (1)(d).
As the majority notes, the evidence of the Secretary of State's AVR policy comes from a press release: Office of the Secretary of State, Secretary Benson Announces Modernized Voter Registration on National Voter Registration Day (September 24, 2019) < https://www.michigan.gov/sos/0,4670,7-127-1640_9150-508246--,00.html>(accessed July 14, 2020) [https://perma.cc/M9ZK-6LRD].
III. PROOF-OF-RESIDENCY REQUIREMENT
As an initial matter, Const. 1963, art. 2, § 4 (1)(f) specifically requires that persons seeking to register to vote within 14 days of an election must provide "proof of residency." To the extent plaintiffs’ arguments could be understood as suggesting that persons need not provide anything, such an argument would clearly not be cognizable. At a minimum, plaintiffs would need to argue that the Michigan Constitution violates, for example, the Voting Rights Act, 52 USC § 10101 et seq. , or a provision of the United States Constitution. I am troubled that plaintiffs do not present an argument that I find understandable for what should qualify as adequate "proof of residency" under Const. 1963, art. 2, § 4 (1)(f). Furthermore, I agree with the majority that it is proper for the Legislature to enact some kind of definitional guidance for what qualifies as "proof of residency." Nevertheless, I agree with plaintiffs that the requirements set forth in MCL 168.497 are unconstitutionally restrictive and violate Const. 1963, art. 2, § 4.
Courts interpret constitutions and statutes in the same manner. People v. Tyler , 7 Mich. 161, 253-254 (1859). As noted, the Constitution expressly requires "proof of residency," but it does not define the term. "Undefined statutory terms must be given their plain and ordinary meanings, and it is proper to consult a dictionary for definitions." Halloran v. Bhan , 470 Mich. 572, 578, 683 N.W.2d 129 (2004). However, an undefined term that has a particular common-law meaning, or a particular legal meaning that is well established in that context, will be afforded that particular meaning. MCL 8.3a ; United States v. Turley , 352 U.S. 407, 411, 77 S. Ct. 397, 1 L. Ed. 2d 430 (1957) ; Allison v. AEW Capital Mgt., LLP , 481 Mich. 419, 427, 751 N.W.2d 8 (2008).
As it happens, "proof of residency" has acquired a well-established legal meaning. Courts have upheld residency as proved by a deed, see Lacey v. Davis , 4 Mich. 140, 150 (1856) ; delivery of mail to a person at his or her address, see People v. Brake , 208 Mich. App. 233, 237-240, 527 N.W.2d 56 (1994) ; Look v. Sills , 368 Mich. 692, 694, 118 N.W.2d 702 (1962) ; People v. Hardiman , 466 Mich. 417, 423, 646 N.W.2d 158 (2002) ; by oath or testimony, see People v. Johnson , 81 Mich. 573, 576, 45 N.W. 1119 (1890) ; cf. White v. White , 242 Mich. 555, 556-557, 219 N.W. 593 (1928) ; or even simply appearing in person "and advising the authorities of where" he or she lives, see People v. Dowdy , 489 Mich. 373, 386, 802 N.W.2d 239 (2011). The Secretary of State draws a clear distinction between proof of identity and proof of residency, and none of the documents accepted as proof of residency includes any need for a photograph. The Secretary of State accepts any two of the following as proof of residency:
The Secretary of State's guidance ostensibly pertains to driver's licenses or state identification cards. Notably, however, this guidance is the primary result on numerous Internet search engines when searching for "proof of residency" in Michigan. Although the Secretary of State does not legally speak on behalf of Michigan, its guidance is clearly widely relied on and familiar to essentially everyone, and it is consistent with the caselaw establishing the meaning of "proof of residence." Furthermore, there is no constitutional right to a driver's license, so imposing a more stringent requirement to vote—which is a right—would make little sense.
Utility bill or credit card bill issued within the last 90 days (Electronic copies are accepted)
Account statement from a bank or other financial institution issued within the last 90 days (Electronic copies are accepted)
Michigan high school, college or university report cards or transcripts
Mortgage, lease or rental agreement (Lease and rental agreements must include landlord's telephone number)
Pay stub or earnings statement issued with the name and address of the employee
Life, health, auto or home insurance policy
Federal, state or local government documents, such as receipts, licenses or assessments
Michigan title and registration (Registration must show current residential address)
Other documents containing your name and address may be accepted with manager approval [Michigan Secretary of State, Applying For a License or ID Card? , SOS-428 (revised June 2020) (formatting altered).][ ]
Available at < https://www.michigan.gov/documents/DE40_032001_20459_7.pdf > [https://perma.cc/ZTL5-ECVD].
Once residence is established, it is considered to remain so until changed, Campbell v. White , 22 Mich. 178, 197199 (1871), and "the determination of domicile or residence is essentially a question of intent which is to be decided after careful consideration of relevant facts and circumstances," Grable v. Detroit , 48 Mich. App. 368, 373, 210 N.W.2d 379 (1973).
To reiterate: the Legislature clearly can and should provide legislative guidance as to what constitutes "proof of residency." Leaving the term undefined, even in light of its well-established meaning, could easily result in the same kind of mischief once caused by voter literacy tests: when a precondition to voting is left wholly to the discretion of local individuals, the result could easily be intentionally or unintentionally biased implementation. Furthermore, consistent with Const. 1963, art. 2, § 4 (2), it is entirely reasonable to require "proof of residency" to entail some kind of documentation created by a reasonably neutral party (e.g., a financial institution, a school, a governmental entity, or possibly a commercial entity). To the extent plaintiffs argue that MCL 168.497 is unconstitutional purely because it provides implementation guidance to election officials as to what will suffice for "proof of residency," I disagree.
Nevertheless, it is clear from the well-established meaning of "proof of residency" that the term is not meant to be synonymous with "proof of identity." Again turning to the Secretary of State for guidance, proof of identity is distinct from proof of residency; and proof of identity may be established with a marriage license, divorce decree, United States court order for a change of name, military discharge separation document, or various forms of photographic identification. See SOS-428. Under MCL 168.497, however, "proof of residency" is, in effect, defined as proof of identity. MCL 168.497(2) states that proof of residency may be shown through a driver's license or state identification card—that is, under the statute, proof of residency may be shown through photographic identification. Yet, under our caselaw and the Secretary of State's guidance, while photographic identification may be used to prove identity, it is not necessary to prove residency. In the alternative, MCL 168.497(3) literally requires the individual to prove residency by proving identity under MCL 168.2(k) (defining "identification for election purposes"). In other words, the Legislature has not actually provided guidance as to what constitutes "proof of residency." Rather, the Legislature has invaded the rights conferred by the Constitution by substituting the requirements for proving identity. There is no level of deference that permits the Legislature to arbitrarily and radically rewrite the Constitution by defining the constitutional term in a way that doesn't comport with its established legal meaning; this is especially true in light of the plain constitutional dictate that Const. 1963, art. 2, § 4 (1) must be construed in favor of voters’ rights.
I recognize that the Legislature permits applicants to partially obviate the requirement of providing proof of identity under MCL 168.2(k) by signing an affidavit. MCL 168.497(4). This is perhaps a good start, but as written, it is not a solution to the problem, especially in light of the second sentence of MCL 168.497(5), which requires issuance of a challenged ballot instead of a regular ballot. If an applicant provides "proof of residency" as required by Const. 1963, art. 2, § 4 (1)(f)(2), then they are entitled to register to vote and must be given a proper ballot. Issuing a challenged ballot instead, as a matter of course—rather than because "the inspector knows or has good reason to suspect that the applicant is not a qualified and registered elector of the precinct," MCL 168.727(1) —violates the elector's rights.
The second sentence of MCL 168.497(5) also applies to MCL 168.497(3). However, as discussed, MCL 168.497(3) unconstitutionally requires proof of identity rather than proof of residency, so the significance of comparing Subsection (5) to Subsection (3) is irrelevant.
Conversely, if the applicant does not provide proof of residency, then nevertheless permitting the applicant to vote using a challenged ballot actually confers greater rights than afforded by the Constitution.
Importantly, I disagree with the majority's characterization of the kinds of documents listed in MCL 168.497(3)(a) to (c) and (4)(a) to (c) as "common, ordinary types of documents that are available to persons of all voting ages." Not everyone owns a residence such that they would have a utility bill; not everyone has an account with any financial institution, let alone a bank; and especially in light of the current COVID-19 crisis and its secondary effects, it is increasingly common for people to have neither a current paycheck nor a government check. Furthermore, "current" is undefined, unlike in the list provided by the Secretary of State. Although "other government document" might suffice, it is vague, and its inclusion along with two forms of paychecks suggests, under the doctrine of ejusdem generis , an equally improperly limited range of possibilities for what might be included. The alternatives the Legislature provides in MCL 168.497(4) are little more than practically unhelpful symbolic gestures, at least as MCL 168.497 is written as a whole. It is true that those documents are commonly available to certain classes of the population, but as a consequence, the Legislature's list works as a clear disenfranchisement of persons based on economic status. Put another way, the Legislature certainly may provide a definition of "proof of residency." It certainly may provide that "proof of residency" requires some kind of documentation. However, "proof of residency" has a well-understood meaning at least in general terms, and the Legislature may not drastically depart from that meaning when supplying more precise implementation details. The documents the Legislature requires might, or might not, be "the highest and best proof of residency," as the majority characterizes them. However, the Constitution, pursuant to the expressed will of the people, demands far more latitude. As noted, the revisions to Const. 1963, art. 2, § 4 now make the Legislature's duty "to preserve the purity of elections" subordinate to the rights enumerated in Const. 1963, art. 2, § 4 (1), including an express requirement that those rights be construed liberally in favor of voters’ rights.
The majority observes that the Secretary of State's list also includes documents that presume a certain economic status and posits that some degree of economic discrimination may be "unavoidable in any scheme designed to establish a person's residency." I do not disagree with either observation. However, proof of residency is required by the Constitution; proof of identity is not. I understand the question before us to be whether the Legislature is violating a right guaranteed by the Constitution by requiring applicants to submit more burdensome documentation than is already constitutionally required.
My point, which I respectfully believe the majority misunderstands, is not that requiring proof of identity is unwise. Rather, it is that proof of identity is qualitatively different from proof of residency, and as a consequence, the Legislature is unconstitutionally burdening the right to register to vote on supplying proof of residency. Had the Legislature provided guidance that actually resembles the well-understood meaning of "proof of residency," I would likely agree that this Court would be compelled to uphold it as within the bounds of reasonableness. Instead, the Legislature has unambiguously provided a definition of "proof of identity ," a much more restrictive and stringent concept, and substituted that definition in place of "proof of residency." This clearly violates Const. 1963, art. 2, § 4 (1). Any further analysis would simply be much sound and fury, signifying nothing. Because MCL 168.497 is facially violative of the Constitution, I decline to engage in philosophy.
I respectfully disagree with the majority's implication that because it was proper for the Legislature to provide some kind of guidance, whatever guidance actually provided must, ipso facto , be proper under the Constitution.
I wholeheartedly agree with the majority that this Court should not "second-guess the wisdom of a legislative policy choice[.]" State Farm Fire & Cas. Co. v. Old Republic Ins. Co. , 466 Mich. 142, 149, 644 N.W.2d 715 (2002). However, it is well established that the courts are explicitly charged with evaluating whether a particular legislative act is permitted by the Constitution. Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177-180, 2 L. Ed. 60 (1803) ; Green v. Graves , 1 Doug. 351, 352 (Mich., 1844) ; People v. Lockridge , 498 Mich. 358, 392, 870 N.W.2d 502 (2015).
IV. CONCLUSION
I concur with the majority in upholding the Secretary of State's AVR policy because I find it to be a reasonable interpretation of Const. 1963, art. 2, § 4 (1)(d), and the alternatives would either be unreasonable or would, in fact, violate individuals’ rights. I would hold that the Legislature may and should provide guidance to explain specifically what would suffice for "proof of residency" under Const. 1963, art. 2, § 4 (1)(f), including some kind of documentation requirement. However, I conclude that MCL 168.497 is unconstitutional on its face because it unambiguously establishes a proof-of-identity requirement, in plain violation of the established meaning of "proof of residency" and in equally plain violation of the constitutional mandate to "liberally construe[ ]" the rights enumerated in Const. 1963, art. 2, § 4 (1) "in favor of voters’ rights in order to effectuate its purposes." The purpose of Const. 1964, art. 2, § 4 (1) is to maximize enfranchisement of persons qualified to vote; MCL 168.497 as written achieves the opposite. I would therefore reverse to the extent the Court of Claims upheld MCL 168.497.