STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5769

September 4, 1980

ELECTIONS:

Identity of elector in precinct using voter registration lists

A registered elector who offers to vote in a precinct using registration lists rather than registration cards may not be denied the right to vote because the elector declines to reveal his or her birthdate as a source of identification. The elector may furnish information as to the maiden name of the mother of the elector as satisfactory identification.

Honorable Gilbert J. DiNello

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion whether a voter who provides election officials with information other than birth date may be denied the right to vote where the voter refuses to disclose his or her birth date.

The Michigan Election Law, 1954 PA 116, Sec. 523, as added by 1978 PA 338; MCLA 168.523; MSA 6.1523 sets forth the procedure to be followed for issuing a ballot to a registered elector offering to vote at an election, and provides:

Thus, 1954 PA 116, Sec. 523(1), supra, provides two methods whereby election officials may verify the contents of an application to vote. First, where voter registration cards are utilized, election officials shall compare the signature upon the application with the signature upon the registration card. Alternatively, if voter registration lists are utilized, the election inspector shall determine whether the name on the application to vote appears upon the voter registration list, and if so, the elector shall provide additional information by giving date of birth or 'other information stated upon the voter registration list.' Section 523(1) further provides that where voter registration lists are utilized, the birth date 'may be required to be placed' on the application to vote. You advise me that in certain instances where voted registration lists are utilized, election inspectors have refused to issue ballots to individuals who have refused to disclose their date of birth as stated upon the voter registration lists. In such circumstances, the election inspectors have refused to accept, in lieu of birth date information, other information contained on the voter registration lists which would corroborate the voter's identity. You inform me that such election officials base their insistence on the providing of birth date information of the voter application by virtue of the language contained in section 523(1), supra, which provides that '[i]n precincts using voter registration lists, the date of birth may be required to be placed on the application to vote.'

Const 1963, art 2, Sec. 1, prescribes the qualification of electors. The constitutional provision is implemented by 1954 PA 116, supra, Sec. 492, which states:

Further, Const 1963, art 2, Sec. 4, provides in part that:

The right to vote is a fundamental constitutional right, and any statute impinging on the right to vote must be precise in its regulation. Michigan State UAW Community Action Program Council v Secretary of State, 387 Mich 506, 517; 198 NW2d 385 (1972); OAG, 1979-1980, No 5543, p ___ (August 15, 1979). Restrictions on the right to vote must meet the 'compelling state interest' test. Kramer v Union Free School District, 395 US 621; 89 S Ct 1886; 23 LEd 2d 583 (1969); Phoenix v Kolodziejski, 399 US 204; 90 S Ct 1990; 26 LEd 2d 523 (1970).

Accordingly, the dispositive question is whether a compelling state interest justifies the denial of the right to vote to voters in precincts using voter registration lists who refuse to disclose the date of birth on the application to vote, where other corroborative information has been placed on the voter registration lists, pursuant to 1954 PA 116, Sec. 523(1), supra.

In Michigan State UAW Community Action Program Council, supra, the Michigan Supreme Court held that 1954 PA 116, supra, Sec. 509, which provided for suspension of registration of all electors who failed to vote or take other specified action within a period of two years, unconstitutional for lack of a compelling state interest. The Court determined that, since a compelling state interest was not demonstrated, the election code provision violated Const 1963, art 2, Sec. 1, supra. In reaching its determination of unconstitutionality, the Court quoted with approval from United States v Alabama, 252 F Supp 95 (MD Ala, 1966):

In Wilkins v Ann Arbor City Clerk, 385 Mich 670; 189 NW2d 423 (1971) the Court held unconstitutional 1954 PA 116, supra, Sec. 11(b) which placed a burden on students' right to vote where each student was required to overcome a statutory presumption that the student was not a resident in the locale of the educationsl institution, where the statute provided that no elector shall be deemed to have gained or lost a residence while a student. The court ruled that the provision did not further any compelling state interest, and thus was violative of the due process and equal protection clauses of the Michigan and United States Constitutions. The Court stated:

1954 PA 116, Sec. 523(1), supra, established two methods whereby election officials may review the application of a registered elector who offers to vote, depending on whether voter registration cards or voter registration lists are utilized in the precinct. Where voter registration cards are used, the election official shall compare the signature upon the application to vote with the signature upon the registration card, and if the signature does not correspond, the vote of the person shall be challenged. In such precincts, election officials are not statutorily authorized to require electors to disclose date of birth or other information. ⁽¹⁾

On the other hand, 1954 PA 116 Sec. 523(1), supra, provides an alternative procedure where voter registration lists are used in the precinct. Where the signature on the application to vote appears on the voter registration list, it is provided that the elector shall furnish further identification by disclosing the date of birth or other information stated upon the voter registration list. ⁽²⁾ Thus, the legislature has mandatorily provided, by use of the word 'shall' that where voter registration lists are used, and the elector's name appears on the voter registration list, the elector shall provide further identification by giving either the date of birth or other information stated upon the voter registration list. Conversely, as 1954 PA 116, Sec. 523(1), supra, further provides that where voter registration lists are used, the date of birth 'may' be required to be placed on the application to vote, indicates that the same is directory, and not mandatory. Southfield Township v Main, 357 Mich 59; 97 NW2d 821 (1959); OAG, 1930-1932, p 563-565 (May 5, 1932). Therefore, where a local unit which utilizes voter registration lists, seeks in its discretion, to require the placing of the date of birth on the application to vote, and the applicant refuses to disclose his or her birth date, the elector shall be afforded the opportunity to provide futher identification by giving 'other information stated upon the voter registration lists.' In precincts utilizing voter registration lists, where the birth date or an item of information does not correspond to the voter registration list, the vote of the person may the challenged, pursuant to the same procedure in the case where voter registration cards are used. However, it is clear that in the case of voter registration lists, a person may not be denied the right to a ballot, and, hence, the right to vote, for failure to disclose his or her birth date on the application to vote.

Where an elector possesses the qualifications of an elector pursuant to 1954 PA 116, Sec. 492, supra, any law which would purport to deny the right to vote is unconstitutional. OAG, 1928-1930, p 142 (November 1, 1928). It may not be assumed that the legislature intends to establish different rules of suffrage in different parts of the state, so as to create inequalities among voters, depending on whether voter registration cards or voter registration lists are utilized. See Warren v Board of Registration, 72 Mich 398; 40 NW 553 (1888); OAG, 1930-1932, supra. In Gottlieb v Hofheinz, 523 SW 2d 7 (Tex Civ App 1975), reh den, the court construed Article 8.08 of the Texas Election Code, which provided in subdivision 3:

In rejecting the claim that the language imposed a mandatory signature requirement on electors, the court instructively commented:

Similarly, based upon the above-cited Michigan authorities, and Const 1963, where an elector in a registration list precinct offers to vote, and refuses to disclose his or her date of birth on the application, such person shall be afforded the opoortunity to provide 'other information' contained on the voter registration list, and shall not be denied the right to vote. Further, if such person does not provide the birth date or other information, or the same is unsatisfactory, the elector shall be challenged. 1954 PA 116, Sec. 523(1), supra. Unless so construed, the challenged language of section 523(1), supra, as it applies to applicants to vote in voter registration precincts who refuse to disclose their birth date, must be viewed as granting constitutionally impermissible discretion to local election officials. Paraphrasing the Court in Wilkins, supra, the ability of an otherwise-qualified elector to exercise the fundamental right to vote may not be made to depend on whether the person discloses his or her birth date, and the Legislature may not constitutionally so provide.

Therefore, it is my opinion that under 1954 PA 116, Sec. 523(1), supra, where voter registration lists are utilized, a voter who provides information such as the maiden name of the mother of the elector shall not be denied the right to vote if he or she refuses to disclose the birth date of the elector. Further, if such person refuses to disclose the date of birth or such other information, such person may be challenged under the provisions of 1954 PA 116, Sec. 523(1), supra, but may not be denied the right to vote.

Frank J. Kelley