The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN
FRANK J. KELLEY, ATTORNEY GENERAL
Requirement of either producing a picture identification card or executing an affidavit if the elector does not possess such a card before being allowed to vote
The amendment to section 523 of the Michigan Election Law contained in 1996 PA 583, which requires either the production of a picture identification card or the execution of an affidavit that the elector does not possess such a card before being allowed to vote, violates the Equal Protection Clause of the Fourteenth Amendment.
Opinion No. 6930
January 29, 1997
Honorable Curtis Hertel
You have asked if the amendment to section 523 of the Michigan Election Law, MCL 168.1 et seq; MSA 6.1001 et seq, contained in 1996 PA 5831, which requires either the production of a picture identification card or the execution of an affidavit that the elector does not possess such a card before being allowed to vote, violates the Equal Protection Clause of the Fourteenth Amendment.
The amendatory language in section 523 of the Michigan Election Law provides:
(1) At each election, before being given a ballot, each registered elector offering to vote shall identify himself or herself by presenting an official state identification card issued to that individual pursuant to Act No. 222 of the Public Acts of 1972, being sections 28.291 to 28.295 of the Michigan Compiled Laws, an operator's or chauffeur's license issued to that individual pursuant to the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being sections 257.1 to 257.923 of the Michigan Compiled Laws, or other generally recognized picture identification
card . . . . If the elector does not have an official state identification card, operator's or chauffeur's license as required in this subsection, or other generally recognized picture identification card, the individual shall sign an affidavit to that effect before an election inspector and be allowed to vote as otherwise provided in this act.
These amendments impose additional requirements on a registered elector to vote. Specifically, the amendments require a registered elector, before being given a ballot, to produce an official state identification card, driver's license or "other generally recognized picture identification card." If the elector does not produce the required identification, the elector must sign an affidavit stating the elector does not have the required identification. The amendments do not expressly state what happens if a registered elector declines to produce the picture identification and does not sign the affidavit. The clear implication is that the registered elector will be denied the right to vote.
The United States Supreme Court has consistently recognized that in our democracy the right to vote is our most precious right. Wesberry v Sanders, 376 US 1, 17; 84 S Ct 526; 11 L Ed 2d 481 (1964). It is a fundamental right because it helps preserve all other rights. Reynolds v Sims, 377 US 533, 562; 84 S Ct 1362; 12 L Ed 2d 506 (1964).
In Dunn v Blumstein, 405 US 330, 336; 92 S Ct 995; 31 L Ed 2d 274 (1972), the Court recognized that any restriction on the right to vote is subject to close constitutional scrutiny:
In decision after decision, this Court 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. This "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. But, as a general matter, "before that right [to vote] can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny."
(Emphasis added) (citations omitted).
The Dunn court then, in the context of a durational residency voting requirement, set forth the strict scrutiny test to be applied whenever the fundamental right to vote is at stake.
In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are "necessary to promote a compelling governmental interest." Thus phrased, the constitutional question may sound like a mathematical formula. But legal "tests" do not have the precision of mathematical formulas. The key words emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes.
It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with "precision," and must be "tailored" to serve their legitimate objectives. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose "less drastic means."
Dunn v Blumstein, 405 US at 342-343 (emphasis added) (citations omitted).
The United States Supreme Court has rejected attempts to burden the fundamental right to vote by requiring payment of a fee. In Harper v Virginia Bd of Elections, 383 US 663, 670; 86 S Ct 1079; 16 L Ed 2d 169 (1966), the Court applied the strict scrutiny test and struck down portions of Virginia's Constitution that directed the General Assembly to levy an annual poll tax not exceeding $1.50 as a precondition for voting.
Our Supreme Court also applies strict constitutional scrutiny to restrictions on the fundamental right to vote. In Michigan State UAW Community Action Program Council v Secretary of State, 387 Mich 506, 517; 198 NW2d 385 (1972), the court rejected a statutory provision allegedly designed to prevent voter fraud by removing otherwise qualified citizens from the registration rolls if they had not voted or otherwise reactivated their registration within two years. In doing so, the court held that "[t]he State has the burden of demonstrating that the particular regulation is necessary and essential and not achievable by any less drastic means."
In Anderson v Celebrezze, 460 US 780, 789; 103 S Ct 1564; 75 L Ed 2d 547 (1983), the Court set forth some of the considerations inherent in applying the strict scrutiny test to state election laws.
Constitutional challenges to specific provisions of a State's election laws therefore cannot be resolved by any "litmus paper test" that will separate valid from invalid restrictions. Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.
Within this legal framework, we now turn to a discussion of the amendment in question in the context of a strict constitutional scrutiny analysis. Consistent with the analytical process set forth in Anderson v Celebrezze, we must first consider the magnitude of the burden imposed by this picture identification requirement for voting. For the poor, those who do not drive, especially the elderly, the handicapped and those who, for whatever reason, do not possess a picture identification card2, this requirement imposes economic and logistical burdens. If they do not obtain the picture identification card or sign the affidavit, they are denied the right to vote even though they are otherwise qualified to vote.
The governmental interest to be served here is the prevention of voter fraud. The prevention of voter fraud is a valid governmental interest. Dunn v Blumstein, 405 US at 345.
But, as the chief law enforcement official of the State of Michigan, I am not aware of any substantial voter fraud in Michigan's elections. I have not received complaints regarding voter fraud. Moreover, the state's chief elections official, Secretary of State Candice Miller, confirmed the fact that Michigan does not have a voter fraud problem when she stated: "We have no real evidence of voter fraud in Michigan. Michigan has historically had very clean elections." Malcolm Johnson, Photo ID bill raises political hackles, Jackson Citizen Patriot, December 25, 1996. Thus, the picture identification or affidavit execution requirement for voting imposed by the amendment to section 523 of the Michigan Election Law is simply not necessary to promote a compelling governmental interest.
In Dunn v Blumstein, at 346-354, the Court concluded that, in light of the state's total statutory scheme for regulating the franchise, including voter registration laws, and the state's various criminal laws addressing voter fraud, the durational residence laws were not the least restrictive means necessary for preventing voter fraud. This rationale is applicable to the present case.
Like Tennessee, the State of Michigan has a system of voter registration. See generally, chapter XXIII of the Michigan Election Law, MCL 168.491 et seq; MSA 6.1491 et seq. Under section 495 of that statute, a person registering to vote must execute an affidavit that the person meets the qualifications for voting.
Michigan law also includes statutory sections imposing criminal penalties for various aspects of voter fraud. See, sections 499(1), 931, 932 and 932a of the Michigan Election Law. Section 932a makes it a felony, among other things, to "vote or attempt to vote under the name of another person."
In addition to the voter registration procedures and criminal sanctions for fraudulent voting, Michigan Election Law provides other mechanisms to prevent voter fraud. In Michigan, once the individual is registered to vote, he or she must go through another process before obtaining a ballot. Another portion of section 523(1) of the Michigan Election Law requires an elector, before obtaining a ballot, to execute an application to vote in the presence of an election official. The elector seeking to vote must execute the application by showing his or her signature or mark and address of residence. Id. If voter registration cards are used, the election official is required to compare the signature on the application with the signature on the registration card. Id. If voter registration lists are used, the election official checks to see if the name appears on the list. Id. If the name is on the list, the elector is required to provide his or her date of birth or other information included on the voter registration list. Id. If the elector's signature or an item of information does not match, the vote of the elector shall be challenged under section 727 of the Michigan Election Law.
Additionally, Michigan has recently adopted a number of amendments to the Michigan Election Law designed to establish a statewide qualified voter file. See, sections 509m through 509s of the Michigan Election Law. Under section 509o(1) of the Michigan Election Law the statewide qualified voter file will be the official file for conducting all elections held in Michigan on or after January 1, 1998.
The purposes of the statewide qualified voter file are set forth in section 509m of the Michigan election law as follows:
The purposes of this section and sections 509n to 509 gg are all of the following:Once the statewide qualified voter file is established, the possibility of voter fraud will diminish even more.
(a) To establish a statewide qualified voter file that consists of all qualified electors who wish to be registered to vote in local, state, and federal elections.
(b) To enhance the uniformity of the administration of elections by creating and maintaining a statewide file of qualified voters.
(c) To increase the efficiency and decrease the public cost of maintaining voter registration files and implementing the national voter registration act of 1993.
(d) To increase the integrity of the voting process by creating a single qualified voter file that will permit the name of each citizen of this state to appear only once and that is compiled from other state files that require citizens to verify their identity and residence.
(e) To apply technology and information gathered by principal executive departments, state agencies, and county, city, township, and village clerks in a manner that ensures that accurate and current records of qualified voters are maintained.
As demonstrated above, Michigan has numerous statutory provisions in place to protect the integrity of the election process and to protect against voter fraud. These provisions include the present requirements for voter registration, the various criminal sanctions for those who commit voter fraud, the procedure used before an individual may obtain a ballot and the development of the statewide qualified voter file. Thus, it is clear that the State of Michigan is not experiencing any substantial voter fraud. The prevention of voter fraud has already been accomplished by less drastic means than the picture identification or affidavit execution requirements imposed by the amendment to section 523 of the Michigan Election Law.
In summary, the statutory amendment in question imposes a requirement that the elector either possess a picture identification card or executes an affidavit that the elector does not possess such a card. If the elector does not either possess the card or execute the affidavit, the elector may not vote even though the elector is otherwise qualified to vote. In the absence of a showing of substantial voter fraud in Michigan, this restriction on the fundamental right to vote is not necessary to further a compelling state interest. Moreover, Michigan already prevents voter fraud by the less drastic means detailed above.
It is my opinion, therefore, that the amendment to section 523 of the Michigan Election Law contained in 1996 PA 583, which requires either the production of a picture identification card or the execution of an affidavit that the elector does not possess such a card before being allowed to vote, violates the Equal Protection Clause of the Fourteenth Amendment.
Under MCL 8.5; MSA 2.216, a statute is declared to be severable unless severability would be contrary to the manifest intent of the Legislature. There is no language in 1996 PA 583 indicating a legislative intent that the remaining valid portions of the act not be implemented. Furthermore, the remaining amendments to the Michigan Election Law in 1996 PA 583 are capable of being implemented independently of the unconstitutional language in section 523. Thus, the unconstitutional amendment in section 523 of the Michigan Election Law as amended by 1996 PA 583 is severable from the rest of that statute.
FRANK J. KELLEY
STATE OF MICHIGAN
[Return to Doc]1 Since 1996 PA 583 was not given immediate effect, it will not become effective until "the expiration of 90 days from the end of the session at which it was passed" under Const 1963, art 4, § 27.
[Return to Doc]2 The current fee for the state identification card is $6.00 under MCL 28.292(1); MSA 4.480(2)(1).