Michigan State UAW Community Action Program Council (CAP) v. Austin

• Decision Date: 20 June 1972
• Docket Number: No. 4,4
• Parties: MICHIGAN STATE UAW COMMUNITY ACTION PROGRAM COUNCIL (CAP) et al., Plaintiffs-Appellants, v. Richard H. AUSTIN, Secretary of State, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 385

198 N.W.2d 385

387 Mich. 506

MICHIGAN STATE UAW COMMUNITY ACTION PROGRAM COUNCIL (CAP) et al., Plaintiffs-Appellants, v. Richard H. AUSTIN, Secretary of State, Defendant-Appellee.

No. 4.

Supreme Court of Michigan.

June 20, 1972.

Rothe, Marston, Mazey, Sachs, O'Connell, Nunn & Freid, by Theodore Sachs, Detroit, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Russell A. Searl, Charles S. Alpert, Asst. Attys. Gen., Lansing, for defendant-appellee.

Before the Entire Bench.

SWAINSON, Justice.

Plaintiffs filed complaint for a writ of mandamus in the Court of Appeals on behalf of themselves and on behalf of a class of persons similarly situated, to challenge the constitutionality of M.C.L.A. § 168.509; M.S.A. § 6.1509. That section provides:

'During the month of December in each year, the clerk shall examine the registration records and shall suspend the registration for all electors who have not voted, continued their registration, reinstated their registration, or recorded a change of address on their registration within a period of 2 years. Each such elector shall be sent a notice through the mails substantially as follows:

'* * * (Form)

'After the expiration of 30 days, the clerk shall cancel the registrations of all electors thus notified who have not applied for continuations. A proper entry shall be made on the registration card of each elector whose registration is canceled. Any elector whose registration has been canceled may have his registration reinstated under the same qualifications required at the time of the initial registration, in which case the clerk shall note the reinstatement date on the applicant's former registration card, affix his signature thereto and replace both the precinct and master cards in the active files, or a new set of cards may be executed in connection with such reinstatement. A reinstated registration shall be valid for the same period as a new registration.'

Plaintiffs allege this section violates Const.1963, art. 2, § 1, and the due process and equal protection clauses of both the United States ¹ and Michigan ² Constitutions. The Court of Appeals, on August 16, 1971, denied plaintiffs' motion for an order to show cause for lack of merit on the grounds presented and dismissed the complaint. Judge Vincent J. Brennan in dissenting would have treated the matter as an application for leave to appeal and granted same. We granted leave to appeal. 386 Mich. 760.

In view of our disposition of the case, we will deal with only one issue: Whether M.C.L.A. § 168.509; M.S.A. § 6.1509, violates Const.1963, art. 2, § 1, by imposing a further qualification for voting in addition to those qualifications exclusively provided therein?

Const.1963, art. 2, § 1, provides:

'Every citizen of the United States who has attained the age of 21 years, ³ who had resided in this state six months, 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.'

M.C.L.A. § 168.509; M.S.A. § 6.1509, by removing otherwise qualified citizens from the voter rolls clearly affects the right to vote. The right to vote has always received a preferred place in our constitutional system. The importance of this right can hardly be overemphasized. It is the basic protection that we have in insuring that our government will truly be representative of all of its citizens. ⁴ 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. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); and Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). Our Court has recently applied this standard in Wilkins v. Ann Arbor City Clerk, 385 Mich. 670, 189 N.W.2d 423 (1971), a case involving the voting rights of students. Thus, in order to uphold M.C.L.A. § 168.509; M.S.A. § 6.1509, we must determine whether there is demonstrated a compelling state interest.

In Beare v. Smith, 321 F.Supp. 1100, 1102--1103 (S.D.Tex.1971), a three-judge Federal district court struck down the Texas system of annual re-registration which closed registrations some eight months in advance of the elections. The court stated:

'At the outset, it must be said that the right to vote is a right which is at the heart of our system of government. Parenthetically, it must be said that there is also a right not to vote. The really important aspect of this problem is that any restrictions on or impediments to this right should be legislatively imposed solely and only to protect a compelling state interest and any other restrictions on or impediments to this right cannot meet constitutional standards.' (Emphasis added)

As plaintiffs point out, there are numerous legitimate reasons why a voter might not vote, including illness, travel, absence of baby-sitters, or a conscious protest against all of the candidates in a particular election. Since M.C.L.A. § 168.509; M.S.A. § 6.1509, effectively removes these voters who are otherwise qualified under Const.1963, art. 2, § 1, there must be demonstrated by the defendant a compelling state interest.

The Attorney General contends that M.C.L.A. § 168.509; M.S.A. § 6.1509, is authorized under Const.1963, art. 2, § 4, which provides in pertinent 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 perserve 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)

The authority of the legislature to set up a system of voter registration is not in question. ⁵ However, any law passed pursuant to this constitutional authority does place a burden on the right to vote. Moreover, M.C.L.A. § 168.509; M.S.A. § 6.1509, is not concerned with voter registration, but, rather with removing a certain class of otherwise qualified voters under Const.1963, art. 2, § 1, from the voting lists because of a failure to vote biennaially or take other action required by the section. Therefore, the State will must demonstrate a compelling state interest to justify a law passed pursuant to this section. The Attorney General cites Simms v. County Court of Kanawha County, 134 W.Va. 867; 61 S.E.2d 849 (1950), and In re Freeholders of Hudson County, 105 N.J.L. 57, 143 A. 536 (1928), for the authority of the legislature to set up a system of registration and to cancel registration for nonvoting. These cases all applied the 'reasonableness' test rather than the compelling state interest test and, thus, are not applicable to this case. ⁶

The Attorney General also contends that because the statute allows any elector to return an application for re-registration that, 'This indeed is a small price to pay to guard against abuses of the elective franchise.' Any burden, however small, will not be permitted unless there is demonstrated a compelling state interest. Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); Williams v. Rhodes, Supra; Wilkins v. Ann Arbor City Clerk, Supra, pp. 684--685, 189 N.W.2d 423. In addition, the fact that over 600,000 persons were purged in Detroit alone from 1960 to 1970 demonstrates that M.C.L.A. § 168.509; M.S.A. § 6.1509, is indeed a serious impediment on the right to vote for a substantial number of citizens. ⁷

The State contends that it has a compelling interest in the prevention of voter fraud. It contends that M.C.L.A. § 168.509; M.S.A. § 6.1509, insures that the voter rolls will not contain the names of voters who no longer live at the listed addresses and further would prevent other citizens from voting from such listed addresses. It cannot be doubted that the above section does to some extent accomplish this purpose, but that is not sufficient to demonstrate a compelling interest. A statute that impinges on a perferred right in order to solve a legitimate and compelling governmental need must be precise in its regulation. United States v. Robel, 389 U.S. 258, 265, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). The State has the burden of demonstrating that the particular regulation is necessary and essential and not achievable by less drastic means. Shapiro v. Thompson, 394 U.S. 618, 637, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). As the court stated in Beare v. Smith, Supra, p. 1106:

'It must always be kept in mind that the power of a state to determine qualifications to vote must be exercised precisely and circumspectly so as to limit the franchise no more than is necessary to effectuate the state's interest. United States v. Alabama, 252 F.Supp. 95 (M.D.Ala.1966).'

The Michigan legislature has passed a comprehensive set of safeguards to prevent fraudulent voting. Under sections 493, 495 and 499 of the Michigan election law (M.C.L.A. §§ 168.493, 168.495 and 168.499; M.S.A. §§ 6.1493, 6.1495 and 6.1499) detailed registration data is required and the registrant must declare his qualifications under oath, the violation of which is punishable as a misdemeanor. Under section 505 (M.C.L.A. § 168.505; M.S.A. § 6.1505) when an elector applies for registration, the clerk has the duty of ascertaining if the elector is already registered...