STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6488

January 15, 1988

ELECTIONS:

Presence of public in election polling places

Persons who have no formal role in the election process may be present in the polling places during the hours the polls are open for voting, subject to reasonable restrictions imposed by elections officials to permit an orderly election to take place.

Richard H. Austin

Secretary of State

Treasury Building

Lansing, MI 48918

You have requested my opinion whether persons who have no formal role in the election process may be present in polling places during the hours the polls are open for voting to observe the voting process.

The authority to regulate elections is vested in the Michigan Legislature pursuant to Const 1963, art 2, Sec. 4, which provides:

The Michigan Election Law, MCL 168.1 et seq; MSA 6.1001 et seq, governs the various aspects of the entire voting and election process. The Michigan Election Law specifically provides for the presence of individual "challengers" during the electoral process and defines their qualifications, rights and responsibilities. MCL 168.730 et seq; MSA 6.1730 et seq. The right of various organizations to have election challengers present at the polls is set forth in MCL 168.730; MSA 6.1730:

Challengers have a right to be present in a designated area in the voting place. MCL 168.734; MSA 6.1734. Further, a challenger has the right to look at poll books and other materials utilized by the precinct inspectors. MCL 168.733; MSA 6.1733. A challenger also has the right to challenge an elector's voting qualifications and the procedures being followed by the precinct inspectors. MCL 168.733; MSA 6.1733.

Thus, the Michigan Election Law has expressly recognized that persons other than election officials may be present in the polling place during the actual voting process. Further indication that others may be present in the polling places is by reference to MCL 168.663; MSA 6.1663, which provides for the erection of barriers in polling places to separate "the rest of the room from the area in which the election officials, challengers, voting machines or ballot boxes and voting booths, and persons in the actual process of voting, are located." This clearly anticipates that individuals other than election officials, challengers and those actually engaged in the process of voting may be present in the polling place.

That others may be present in the voting place was also recognized by the Michigan Supreme Court in Common Council of Detroit v. Rush, 82 Mich 532, 544 (1890), wherein the court considered a petition for mandamus to force local election officials to comply with a law requiring booths and railings, among other safeguards, to be established in the polling place. The court, in upholding a predecessor election law, addressed some of the reasons for its enactment:

Similarly, current Michigan law provides that any registered and qualified elector of the precinct may challenge the right of anyone attempting to vote. MCL 168.727; MSA 6.1727. Thus, the applicable law, while not identical, is similar to that addressed by the court in Rush, supra, which recognized that there must not be obstruction of a view between "the public and the voter when he deposits his vote," thereby indicating the rights of the public to be present during the actual casting of a ballot.

The primary purpose of interpretation and construction of statutes is to give effect to legislative intent. Moore v Dep't of Military Affairs, 398 Mich 324; 247 NW2d 801 (1976). In the absence of explicit intent, the most probable and reasonable intent is to be ascribed. Bd of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613; 221 NW2d 345 (1974).

A primary purpose of enactment of laws governing the electoral process as set forth in Const 1963, art 2, Sec. 4, is to preserve the purity of elections, to preserve the secrecy of the ballot and to guard against abuses of the elective franchise. Allowing polling places to be open to public scrutiny helps to assure the purity of the election just as the use of voting booths and the segregation of the actual voting area from the public serve to preserve the secrecy of the ballot. This was the purpose recognized by the Michigan Supreme Court in 1890 and, although the style and particulars of the various election laws have changed, the primary purpose of the law has remained constant.

Thus, it is appropriate to conclude that the most probable and reasonable intention of the Legislature in providing for barriers to segregate the polling place and, absent a clear expression of intent to the contrary, is to permit members of the public to observe the voting process. However, the opportunity for individuals to observe the voting process is subject to the provisions of Michigan law relating to the conduct of orderly elections, including the prohibition against persuading any elector to vote for or against any candidate or party ticket, or for or against any proposition to be voted on. MCL 168.744; MSA 6.1744, and other laws that address applicable maximum occupancy of rooms and such reasonable restrictions as the election officials may impose to permit orderly ingress and egress to the polling place for those individuals actually in the process of casting a ballot.

It is noted that the public may not be excluded from the observance of the tabulation of the votes of the election by a precinct board. MCL 168.801; MSA 6.1801, OAG, 1979-1980, No 5691, p 735 (April 23, 1980); OAG, 1928-1930, p 261 (March 6, 1929).

It is my opinion, therefore, that persons who have no formal role in the election process may be present in the polling places during the hours the polls are open for voting, subject to reasonable restrictions imposed by election officials to permit an orderly election process to take place.

Frank J. Kelley

Attorney General