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 Opinion No. 5356 August 23, 1978 ELECTIONS: Registration CONSTITUTION OF MICHIGAN: Article 2, Section 1 (Qualifications of electors) CONSTITUTION OF MICHIGAN: Article 2, Section 4 (Voter registration) CONSTITUTIONAL LAW: Equal Protection The Michigan Constitution mandates the legislature to enact laws providing for a system of voter registration. The 30-day registration requirement of the Michigan Election Law is constitutional under the Fourteenth Amendment of the United States Constitution and under Const 1963, art 2, Sec. 1. The Honorable Earl E. Nelson State Senator The Capitol Lansing, Michigan 48901 Your letter requests my opinion on the following questions: 1. Is it mandatory under the provisions of Const 1963, art 2, Sec. 4, that the legislature of the State of Michigan enact laws providing for a system of voter registration? 2. If the answer to this first question is yes, is a registration system which prohibits a person who meets the qualifications set out in Const 1963, art 2, Sec. 1, from voting because he is not registered to vote a constitutional enactment? In response to your first question, it is my opinion that the legislature is mandated by Const 1963, art 2, Sec. 4, to provide for a system of voter registration. As you noted in your letter, the relevant language of this provision reads as follows: '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. . . . [Emphasis added] Clearly, the ordinary sense of these words is that laws providing for a system of voter registration are mandatory. It has been held by the Michigan Supreme Court that the primary rule in ascertaining the meaning of words in the Constitution is to give effect to the plain meaning of such words as understood by the people who adopted the Constitution. See Traverse City School District v Attorney General, 384 Mich 390; 185 NW2d 9 (1971); Carman v Secretary of State, 384 Mich 443; 185 NW2d 1 (1971). It is true, however, that the word 'shall', when used in statutes, has on occasion been construed by courts to mean 'may', but this was done only to effectuate legislative intent. See Smith v School District No 6, 241 Mich 366; 217 NW 15 (1928), cited with approval in Transamerican Freight Lines, Inc v Quimby, 381 Mich 149, 158; 160 NW2d 865 (1968). But in dealing with the question that you pose, there are very clear indications that the word 'shall' as used in Const 1963, art 2, Sec. 4, was intended by the drafters to carry its ordinary mandatory meaning. First, the Convention Comment explaining the effect of this constitutional provision states unequivocally: '. . . the legislature is specifically directed to enact corrupt practices legislation.' Providing for a system of voter registration is part of that mandate. Further within Article 2 the drafters of the constitution used both the word 'may' and the word 'shall'. See, for example, Const 1963, art 2, Sec. 3, where both words and used. In interpreting the meaning of these words in statutes, the Michigan Court of Appeals has held that where both words are used within the statute, it may be inferred that the legislature intended to convey a different meaning by those words, 'may' being permissive, 'shall' being mandatory. See McLogan v Craig, 20 Mich App 497; 174 NW2d 166 (1969). Certainly the same inference may be made where the framers of the constitution use both of these words within an article of that constitution. Finally, in numerous early cases relating to laws affecting the elective franchise, the Michigan Supreme Court has held that laws which merely regulate the franchise, including registration laws, are valid. Thus, the authority of the legislature to set up a system of voter registration is clearly established, see, Common Council of Detroit v Rush, 82 Mich 532; 46 NW 951 (1890); Brown v Kent County Election Commissioners, 174 Mich 477; 140 NW 642 (1913), and the cases cited therein. In light of the above, the answer to your first question is 'yes'; it is mandatory that the legislature enact laws providing for a system of voter registration. The answer to your second question calls for an analysis of the constitutionality of the system of registration provided in Chapter 23 of the Michigan Election Law, 1954 PA 116; MCLA 168.491 et seq; MSA 6.1491 et seq. More specifically, your letter calls into question Secs. 491, MCLA 168.491; MSA 6.1491, and 497, MCLA 168.497; MSA 6.1497, which when read together preclude an elector who has failed to register 30 days before an election from voting in that election. Section 491, supra, provides: 'The inspectors of election at any election or primary election in this state, or in any district, county, township, city or village thereof, shall not receive the vote of any person whose name is not registered in the registration book of the township, ward or precinct in which he offers to vote.' Section 497, supra, creates a 30-day period prior to an election or primary election during which an otherwise qualified elector cannot register to vote for the upcoming election or primary election: 'A person not already registered who possesses the qualifications of an elector as set forth in section 492, may make application for registration to the clerk of the township, city, or village in which he resides on a day other than Sunday, a legal holiday, the day of a regular, primary, school, or special election. Registrations taken on the days intervening between the thirtieth day preceding an election and the day of such election, unless the thirtieth day falls on a Saturday, Sunday or legal holiday, in which event registration shall be accepted during the following day shall not be valid for the election but shall be valid for subsequent regular, primary, school, or special elections held at a time so that not less than 30 days intervene between the date of registering and the date of the election . . ..' These statutory provisions must be analyzed in light of Const 1963, art 2, Sec. 1, which provides: 'Every citizen of the United States who has attained the age of 21 (a1) years, who has resided in this state six months (a2), and who meets the requirements of local residence provided by law, shall be an elector and qualified to vote in any election except as otherwise provided in this constitution. The legislature shall define residence for voting purposes.' In the case of Michigan State UAW Community Action Program Council v Secretary of State, 387 Mich 506; 198 NW2d 385 (1972), the Michigan Supreme Court held that the right to vote is a right of such importance that it holds a preferred position among the rights granted to citizens by the United States Constitution and the Constitution of the State of Michigan. In that case the court was called upon to determine the constitutionality of a provision of the Michigan Election Law which suspended the registration of all electors who had not voted, continued their registration, reinstated their registration, or recorded a change of address on their registration, within a two year period. The court held that this provision of the Election Law violated Const 1963, art 2, Sec. 1, by imposing a further qualification for voting in addition to those qualifications exclusively provided in that constitutional provision. In so ruling, the court stated: '. . . The right to vote has always received a preferred place in our constitutional system. The importance of this right can hardly be over-emphasized. It is the basic protection that we have in insuring that our government will truly be representative of all of its citizens. The United States Supreme Court has held in numerous recent decisions involving the right to vote that in order that a state law prevail which impedes this fundamental constitutional right, there must be demonstrated a compelling state interest. [Citations omitted]. Our Court has recently applied this standard in Wilkins v Ann Arbor City Clerk, 385 Mich 670 (1971), a case involving the voting rights of students. Thus, in order to uphold MCLA 168.509; MSA 6.1509 [the statutory provision under challenge in the case], we must determine whether there is demonstrated a compelling state interest.' [Emphasis added] Thus, the Michigan Supreme Court has adopted a compelling state interest test for determining the constitutionality of a registration procedure which interferes with the right to vote. It is clear that Secs. 491 and 497 of the Michigan Election Law, when taken together, do interfere with the right to vote in that qualified electors are prevented from voting in an election if they have not registered at least 30 days before that election. The compelling state interest test set forth by the Michigan Supreme Court in Michigan State UAW Community Action Program Council v Secretary of State, supra, is identical to the test set forth by the Supreme Court of the United States in Dunn v Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1972). In the Dunn case, the United States Supreme Court was called upon to determine whether the State of Tennessee impermissibly interfered with the right to vote. Tennessee at that time provided that the registration books be closed 30 days before an election but also required residence in the State for one year and in the county for three months. Under challenge in Dunn were the one year and three months durational residency requirements. The Court held the residency requirements unconstitutional and in so ruling stated: 'Durational residence requirements completely bar from voting all residents not meeting the fixed durational standards. By denying some citizens the right to vote, such laws deprive them of "a fundamental political right, . . . preservative of all rights." Reymonds v sims, 377 US 533, 562, 12 L Ed 2d 506, 527, 84 S Ct 1362 (1964). . . 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. [Citations omitted]. This 'equal right to vote,' [Citation omitted] is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. [Citation omitted]. But as a general matter, 'before that right [to vote] can be restricted, the purposes of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.' [Citations omitted] '. . . [I]f a challenged statute grants the right to vote to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.' [Citations omitted] . . ..' [405 US at 336-337] Since the standard applied to statutes which interfere with the right to vote under the Fourteenth Amendment to the United States Constitution and under Const 1963, art 2, Sec. 1, are identical, and since there are no Michigan cases which deal with the constitutionality of the 30 day registration requirement found in Sec. 497 of the Michigan Election Law, reference must be had to federal cases which deal with similar statutes. On two occasions the Supreme Court of the United States has been called upon to rule on the constitutionality of statutes which require an otherwise qualified elector to register to vote within a certain number of days preceding an election in order to be eligible to vote at that election. In Marston v Lewis, 410 US 679; 93 S Ct 1211; 35 L Ed 2d 627 (1973), the Supreme Court had under consideration Arizona statutes which imposed a 50 day durational voter residency requirement and a 50 day voter registration requirement. In that case, the Supreme Court upheld both the residency requirement and the registration requirement: 'In Dunn v Blumstein, we struck down Tennessee's durational voter residency requirement of one year in the State and three months in the county. We recognized that a person does not have a federal constitutional right to walk up to a voting place on election day and demand a ballot. States have valid and sufficient interests in providing for some period of time--prior to an election--in order to prepare adequate voter records and protect its electoral processes from possible frauds. A year, or even three months, was found too long, particularly in the context of 'the judgment of the Tennessee lawmakers,' who had set 'the cutoff point for registration [at] 30 days before an election . . ..' 405 US, at 349, 31 L Ed 2d 274. The Arizona scheme, however, stands in a different light. The durational residency requirement is only 50 days, not a year or even three months. Moreover, unlike Tennessee's, the Arizona requirement is tied to the closing of the State's registration process at 50 days prior to elections and reflects a state legislative judgment that the period is necessary to achieve the State's legitimate goals.' (Emphasis added) 410 US at 680; 35 L Ed 2d at 129 In Burns v Fortson, 410 US 686; 93 S Ct 1209; 35 L Ed 2d 633 (1973), the Supreme Court upheld Georgia's statute which required the closing of voter registration books 60 days before general elections. The statute was held to be constitutional because the State had established that a registration period was necessary to promote the orderly, accurate, and efficient administration of elections which are free from fraud. In so ruling, the Court relied on its prior decisions in Dunn v Blumstein, supra, and Marston v Lewis, supra. See discussion of these cases in Beare v Briscoe, 498 F2d 244 (5 CA, 1974). Thus, the United States Supreme Court, using the compelling state interest test, has upheld statutes similar to the Michigan statutes in question. Furthermore, it is possible to conclude after analysis of the inter-relationship between Const 1963, art 2, Sec. 1 and art 2, Sec. 4, that the registration requirement is constitutional. Art 2, Sec. 1, sets forth the age and residence requirements which, if met, render an individual a qualified elector 'except as otherwise provided in this constitution.' This quoted phrase from art 2, Sec. 1, indicates that this section must be read in conjunction with other provisions found in art 2. Of immediate relevance is art 2, Sec. 4, which mandates the legislature to establish a system of voter registration. At the times Secs. 1 and 4 of art 2 were considered by the delegates at the constitutional convention which drafted the 1963 Michigan Constitution, Sec. 497 of the Election Law was already in effect and provided for a 30-day registration requirement. Constitutional provisions must be construed with reference to each other when relating to the same subject matter, Dullen v Willson, 53 Mich 392; 19 NW 112 (1884). Further, constitutional provisions must be construed in light of the state of the law at the time the provisions were adopted. Michigan Farm Bureau v Secretary of State, 379 Mich 387; 151 NW2d 797 (1967), Pfeiffer v Board of Education of Detroit, 118 Mich 560; 77 NW 250 (1898). Thus, it must be assumed that the delegates at the constitutional convention were aware of and approved of the use of registration cut-off dates. It is my opinion, therefore, that the 30-day registration requirement found in Sec. 497 of the Michigan Election Law, 1954 PA 116, Sec. 497, as amended; MCLA 168.497; MSA 6.1497, is constitutional under both the Fourteenth Amendment to the United States Constitution and Const 1963, art 2, Sec. 1. Frank J. Kelley Attorney General (a1)
(a2)
By reason of decisions of the United States Supreme Court to be discussed in this opinion, this six months durational residency requirement is no longer valid.