Promote the Vote v. Secretary of State

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PROMOTE THE VOTE, FOR PUBLICATION
July 20, 2020
Plaintiff-Appellant,
v No. 353977
Court of Claims
SECRETARY OF STATE, LC No. 20-000002-MZ
Defendant-Appellee,
and
HOUSE OF REPRESENTATIVES and SENATE,
Intervening Appellees.
PRIORITIES USA and RISE, INC.,
Plaintiffs-Appellants,
v No. 354096
Court of Claims
SECRETARY OF STATE LC No. 19-000191-MZ
Defendant-Appellee,
and
SENATE and HOUSE OF REPRESENTATIVES,
Intervening Defendants-Appellees.
Before: METER, P.J., and RONAYNE KRAUSE and GADOLA, JJ.
RONAYNE KRAUSE, J. (concurring in part and dissenting in part)
-1-
I respectfully concur in part and dissent in part. At its essence, the gravamen of plaintiffs’
claims is twofold: first, portions of MCL 168.497 impermissibly restrict rights guaranteed by Const
1963, Art II, § 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
this matter is much simpler and more straightforward than does the majority, and much of the law
and discussion provided by the majority, while thoughtful, is either unnecessary or predicated on
outdated law.1
I. RIGHT TO VOTE
Plaintiffs first argue that the Court of Claims erred in holding that there is no right to vote
in Michigan. If that had been the holding of the Court of Claims, it would unambiguously have
been wrong. “All political power is inherent in the people.” Const 1835, Art I, § 1; Const 1909,
Art II, § 1; Const 1963, Art I, § 1. Indeed, the entire point of the American Revolution was a lack
of representation by the people in their government. Const 1963, Art II, § 4 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 II, § 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 II, § 1 specifically conditions the right to vote
on “except as otherwise provided in this constitution.” The Voting Rights Act, 52 USC
§ 10101(a)(1) conditions the right to vote on being “otherwise qualified by law.” Whether or not
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 purely for expressing 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 II, § 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.
***
1
Although I maintain that the Legislature does not have standing to participate in this matter,
League of Women Voters of Michigan v Secretary of State, ___ Mich App ___, ___; ___ NW2d
___ (2020) (Docket Nos 350938 & 351073), slip op at pp 6-9, 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.
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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 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 II, § 4 before
it was amended by Proposal 3. Former Const 1963, Art II, § 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. . . . .
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Similarly, former Const 1850, Art VII, § 6 and Const 1908, Art III, § 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 three
now expressly makes 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 upon voting
and registration. However, case law relying on the unconditional grant of authority provided in
outdated versions of former Const 1963, Art II, § 4 and its predecessors is now highly suspect.
See Todd v Bd of Election Comm’rs, 104 Mich. 474, 477, 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 NW2d 444 (2007) (discussing the
balance between the right to vote and the legislature’s responsibility under former Const 1963, Art
II, § 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 upon 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 “except 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 1964, Art II, § 4 are only enjoyed by citizens who are
“electors qualified to vote in Michigan.” As the majority observes, this excludes any person under
the age of 18. Const 1963, Art II, § 1; US Const, Amd 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” Const 1964,
Art II, § 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 registering those persons without notice. In contrast, the Secretary of
State clearly regards the phrase as meaning a direct result of any particular discrete transaction.
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First, the Secretary of State’s interpretation is clearly reasonable. See Council of Organizations
and Others for Ed About Parochiaid, Inc v Governor, 455 Mich. 557, 568-570; 566 NW2d 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 NW2d
218 (2000).
Furthermore, the Secretary of State’s AVR policy, as apparently currently implemented,2
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. Michigan State UAW Community Action
Program Council v Austin, 387 Mich. 506, 515; 198 NW2d 385 (1972). There may 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 may or may 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 II, § 4(1)(d).
III. PROOF OF RESIDENCY REQUIREMENT
As an initial matter, Const 1963, Art II, § 4(1)(f)(2) 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 II, § 4(1)(f)(2). Furthermore, I agree with the majority to the
extent they hold that it is proper for the Legislature to enact some kind of definitional guidance to
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 II, § 4.
Constitutions and statutes are interpreted by the courts 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 NW2d 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; 777 S. Ct. 397; 1 L. Ed. 2d
430 (1957); Allison v AEW Capital Mgt, LLP, 481 Mich. 419, 427; 751 NW2d 8 (2008).
2
As the majority notes, the evidence of the Secretary of State’s AVR policy comes from a press
release: < https://www.michigan.gov/sos/0,4670,7-127-1640_9150-508246--,00.html >.
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As it happens, “proof of residency” has acquired a well-established legal meaning. Courts
have upheld residency as proved by a deed, Lacey v Davis, 4 Mich. 140, 150 (1856); delivery of
mail to a person at their address, People v Brake, 208 Mich. App. 233, 237-240; 527 NW2d 56
(1994), Look v Sills, 368 Mich. 692, 694; 118 NW2d 702 (1962); People v Hardiman, 466 Mich.
417, 423; 646 NW2d 158 (2002); by oath or testimony, 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” they live, People v Dowdy, 489 Mich.
373, 386; 802 NW2d 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
include any need for a photograph.3 The Secretary of State accepts any two of the following as
proof of residency:
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)
3
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 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 upon and familiar to essentially
everyone, and it is consistent with the case law 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.
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Other documents containing your name and address may be accepted with
manager approval [“Applying for a license or ID card?”, Secretary of State
publication SOS-428 (rev 06/2020)4.]
Once residence is established, it is considered to remain so until changed, Campbell v White, 22
Mich. 178, 197‐ 199 (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 City of Detroit, 48 Mich. App. 368, 373; 210 NW2d 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 II, § 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 it
is not necessarily proof of identity. Again turning to the Secretary of State for guidance, proof of
identity is explicitly distinct from proof of residency, and it 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 (SOS-428). Under MCL
168.497, however, “proof of residency” is, in effect, defined as proof of identity. Pursuant to MCL
168.497(2), proof of identity is literally a driver’s license or state ID card. In the alternative, MCL
168.497(3) literally requires proof of identity under MCL 168.2(k). In other words, the Legislature
has not, in any way, provided guidance as to what constitutes “proof of residency.” Rather, the
Legislature has invaded the rights conferred by the constitution by substituting proof of identity in
its stead. There is no level of deference that permits the Legislature to arbitrarily and radically
rewrite the constitution by substituting one term for another altogether, especially in light of the
plain constitutional dictate that the rights must be construed in favor of voter’s 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), requiring issuance of a challenged ballot instead of a regular
ballot.5 If an applicant provides “proof of residency” as required by Const 1963, Art II, §
4
Available at < https://www.michigan.gov/documents/DE40_032001_20459_7.pdf >.
5
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 subsection (5) to subsection (3) is irrelevant.
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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.6
Importantly, I disagree with the majority’s characterization of the kinds of documents
enumerated in MCL 168.497(3)(a)-(c) and (4)(a)-(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 provided by the Legislature 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.7
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 required by the Legislature 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 II, § 4 now make the “the Legislature’s duty to preserve the purity of elections” subordinate to
the rights enumerated in subsection (1), including an express requirement that those rights be
construed liberally in favor of voters’ rights.
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
6
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.
7
The majority observes that the Secretary of State’s list also includes documents that presume a
certain economic status, and posit 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.
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of residency, and as a consequence, the Legislature is unconstitutionally burdening the right to
register to vote upon 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.8 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 II, § 4(1).9 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.
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 1964, Art II, § 4(1)(d), and the alternatives would
either be unreasonable or in fact violative of 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 II, § 4(1)(f)(2), 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 1964, Art II, § 4(1) “in favor of voters’ rights
in order to effectuate its purposes.” The purpose of Const 1964, Art II, § 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.
/s/ Amy Ronayne Krause
8
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.
9
I wholeheartedly agree with the majority that this Court should not “second-guess the wisdom of
a legislative policy choice.” State Farm Fire and Cas Co v Old Republic Ins Co, 466 Mich. 142,
149; 644 NW2d 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 US (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 NW2d 502 (2015).
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