Practical Political Consulting Inc. v. Sec'y Of State

Decision Date09 March 2010
Docket NumberDocket No. 291176.
Citation789 N.W.2d 178
CourtCourt of Appeal of Michigan — District of US

789 N.W.2d 178


Docket No. 291176.

Court of Appeals of Michigan.

Submitted Nov. 10, 2009, at Lansing.
Decided March 9, 2010, at 9:05 a.m.

Brookover, Carr & Schaberg, P.C. (by Diane S. Carr), East Lansing, for plaintiff.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Susan Leffler, Denise C. Barton, and Ann M. Sherman, Assistant Attorneys General, for defendants.

Foster, Swift, Collins & Smith, P.C. (by Eric E. Doster), Lansing, for amicus curiae the Michigan Republican Party.



This appeal concerns the provisions of the Freedom of Information Act (FOIA) relating to public records. 1 But the central question here is not the availability of public records. Rather it is whether the disclosure, or concealment, of these records will lead to, or detract from, the public's ability to hold its elected and appointed public officials accountable for carrying out the law. The Secretary of State (the Secretary) and her office would have us hold that these records are statutorily exempt from disclosure and that they are of such a “personal nature” that their public disclosure would constitute a “clearly

789 N.W.2d 180

unwarranted invasion” of an individual's privacy. We cannot, and do not, agree.

The records here relate to the 2008 presidential primary election, in which there was to be a “separate record” kept containing the printed name, address, and

qualified voter file number of each elector and the “participating political party” ballot selected by that elector. The main “participating” political parties were the Democratic Party and the Republican Party. The 2008 presidential primary in Michigan was conducted amid a swirl of controversy, charges, and counter-charges. Ultimately, a federal court found the act that authorized that primary to be unconstitutional on equal protection grounds. But these complexities should not cloud the basic issue. That issue here is whether we should shield from public disclosure the “separate records” that contain information as to which ballot-not which candidate-each voter selected in the 2008 presidential primary. We do not view FOIA and the cases interpreting it as providing such a shield. We therefore affirm the decision of the trial court.


The law relating to recent presidential primary elections in Michigan falls into three categories:

• First, by statute from 1988 to 1995, Michigan had a “closed” presidential primary system, with certain requirements regarding eligibility to vote in party presidential primaries.

• Second, by statute from 1995 to 2007, Michigan had an “open” presidential primary system that allowed voting in party primaries without the eligibility requirements that the former election law imposed.

• Third, by statute in 2008, Michigan had what might reasonably be called a “semi-open” presidential primary, with certain requirements-less onerous than those that the law imposed in 1988 to 1995-regarding eligibility to vote in a party's presidential primary.

More specifically, the law in these three categories contained the following provisions:

+-----------------------------------------------------------------------------+ ¦1988-1995 ¦ ¦ ¦Closed ¦ ¦ ¦ ¦A “registration affidavit” kept at the township, city, or ¦ ¦Presidential¦village level was required to contain a space in a presidential ¦ ¦ ¦primary election for the “elector to declare a party preference ¦ ¦Primary ¦or that the elector has no party preference.” ^[FN2] Even if ¦ ¦System: ¦currently registered to vote, an elector would not be eligible ¦ ¦ ¦to vote in a presidential primary election unless the elector ¦ ¦Declaration ¦“declare[d] in writing ... a party preference at least 30 days ¦ ¦of ¦before the presidential primary election.” ^[FN3] Thus, only ¦ ¦ ¦those electors who declared a party preference 30 days before ¦ ¦Party ¦the presidential primary election could vote for the candidates ¦ ¦Preference ¦in any of the parties' respective presidential primaries. ¦ ¦ ¦ ¦ ¦By Elector ¦ ¦ +------------+----------------------------------------------------------------¦ ¦1995-2007 ¦ ¦ ¦Open ¦ ¦ ¦ ¦ ¦ ¦Presidential¦The “registration affidavit” was no longer required to contain ¦ ¦ ¦the space for an elector to declare a party preference 30 days ¦ ¦Primary ¦(or any other period) before the presidential primary election.^¦ ¦System: ¦[FN4] Thus, any elector, who had otherwise completed a valid ¦ ¦ ¦registration affidavit could vote for the candidates in any of ¦ ¦No ¦the parties' respective presidential primaries. ¦ ¦Declaration ¦ ¦ ¦ofParty ¦ ¦ ¦Preference ¦ ¦ ¦By Elector ¦ ¦ +------------+----------------------------------------------------------------¦ ¦2008 ¦ ¦ ¦Semi-Open ¦ ¦ ¦ ¦ ¦ ¦Presidential¦ ¦ ¦ ¦In order to vote in a presidential primary, an elector was ¦ ¦Primary: ¦required to “indicate in writing, on a form prescribed by the ¦ ¦ ¦secretary of state, which participating political party ballot ¦ ¦Indication ¦he or she wishes to vote when appearing to vote at a ¦ ¦of ¦presidential primary.” ^[FN5] Thus, only the electors who ¦ ¦ ¦indicated, at the time they appeared to vote, which ¦ ¦Which Party ¦participating political party ballot “he or she wishes to vote” ¦ ¦ ¦could vote for the candidates in any of the parties' respective ¦ ¦Ballot ¦presidential primaries. ¦ ¦Elector ¦ ¦ ¦ ¦ ¦ ¦Wished to ¦ ¦ ¦Vote ¦ ¦ +-----------------------------------------------------------------------------+
789 N.W.2d 181

There is a significant difference between the three categories. Under the 1988-1995 closed primary system, an elector had to “ declare ” a “party preference” 30 days in advance in order to vote in a presidential primary. Under the 1995-2007 open primary system, by contrast, there were no requirements regarding party preference or ballot selection, by declaration or otherwise, and any qualified elector could vote in any of the parties' respective presidential primaries. In 2008, an elector was not required to “ declare ” a “party preference” but rather that elector was required to “ indicate ” which “participating political party ballot he or she wish[ed] to vote....” And the elector

could indicate his or her choice of ballot when he or she appeared at the polling place to vote in the presidential primary, rather than 30 days in advance.


The three categories also had significantly different record-keeping requirements. In summary, the law in these three categories contained the following provisions:

+-----------------------------------------------------------------------------+ ¦1988-1995 ¦ ¦ ¦Closed ¦ ¦ ¦ ¦ ¦ ¦Presidential¦The clerk of each township, city, and village was required to ¦ ¦ ¦provide blank forms, designated as “registration cards,” to be ¦ ¦Primary ¦used in the registration of electors. These “registration cards”¦ ¦System: ¦were to include an affidavit designated as a “registration ¦ ¦ ¦affidavit” to be executed by the registrant.^[FN6] This ¦ ¦Declaration ¦“registration affidavit” was to contain: ¦ ¦of ¦ ¦ ¦ ¦ ¦ ¦Party ¦ ¦ ¦Preference ¦ ¦ +-----------------------------------------------------------------------------+

+-----------------------------------------------------------------------------+ ¦By ¦¦· the name of the elector; ¦ ¦Elector¦¦ ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· the residence address, street and number or rural route and box ¦ ¦ ¦¦number, if any, of the elector; ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· the birthplace and birth date of the elector; ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· the driver's license or state identification card number of the ¦ ¦ ¦¦elector, if available; ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· a statement that the elector was a citizen of the United States; ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· a statement that the elector at the time of completing the ¦ ¦ ¦¦affidavit, or on the date of the next election, was not less than 18¦ ¦ ¦¦years of age; ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· a statement that the elector has or will have lived in the state ¦ ¦ ¦¦not less than 30 days before the election; ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· a statement that the elector has or will have established his or ¦ ¦ ¦¦her residence in the township, city, or village in which the elector¦ ¦ ¦¦is applying for registration not less than 30 days before the next ¦ ¦ ¦¦election; ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· a statement that the elector is or will be a qualified elector of ¦ ¦ ¦¦the township, city, or village on the date of the next election; ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· a space in which the elector shall state the place of the ¦ ¦ ¦¦elector's last registration; and, as mentioned above, ¦ +-------++--------------------------------------------------------------------¦ ¦ ¦¦· a space for the elector to declare a party preference or that the ¦ ¦ ¦¦elector has no party preference.^[FN7] ¦ +-----------------------------------------------------------------------------+

+-----------------------------------------------------------------------------+ ¦ ¦In addition, if authorized by the election commission of the ¦ ¦ ¦city, village, or township, the clerk of a city, village, or ¦ ¦ ¦township was to create a “registration list,” alphabetically ¦ ¦ ¦arranged and containing the name, address, date of birth of the ¦ ¦ ¦elector and, “for the purpose of voting in

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