Promote the Vote v. Sec'y of State

• Decision Date: 20 July 2020
• Docket Number: No. 354096,No. 353977,353977
• Citation: 333 Mich.App. 93,958 N.W.2d 861
• Parties: PROMOTE THE VOTE, Plaintiff-Appellant, v. SECRETARY OF STATE, Defendant-Appellee, and House of Representatives and Senate, Intervening Appellees. Priorities USA and Rise, Inc., Plaintiffs-Appellants, v. Secretary of State, Defendant-Appellee, and Senate and House of Representatives, Intervening Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

333 Mich.App. 93

958 N.W.2d 861

PROMOTE THE VOTE, Plaintiff-Appellant,

v.SECRETARY OF STATE, Defendant-Appellee,andHouse of Representatives and Senate, Intervening Appellees.

Priorities USA and Rise, Inc., Plaintiffs-Appellants,

v.Secretary of State, Defendant-Appellee,andSenate and House of Representatives, Intervening Defendants-Appellees.

No. 353977

No. 354096

Court of Appeals of Michigan.

Submitted July 8, 2020, at Lansing.

Decided July 20, 2020, at 9:00 a.m.

Cummings & Cummings Law Group, PLLC (by Mary Ellen Gurewitz and Sheila Cummings ) for Promote the Vote.

Perkins Coie LLP (by Marc E. Elias, Jacki L. Anderson, Jyoti Jasrasaria, Kevin J. Hamilton, and Amanda J. Beane ) and Sarah S. Prescott, Northville, for Priorities USA and Rise, Inc.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Heather S. Meingast and Erik A. Grill, Assistant Attorneys General, for the Secretary of State.

Bush Seyferth PLLC (by Patrick G. Seyferth, Troy, Michael K. Steinberger, Detroit, and Frankie Dame ) for the Senate and House of Representatives.

Before: Meter, P.J., and Ronayne Krause and Gadola, JJ.

Meter, P.J.

In Docket No. 353977, plaintiff, Promote the Vote (PTV), appeals by right a June 24, 2020 order entered by the Court of Claims. In Docket No. 354096, plaintiffs, Priorities USA and Rise, Inc. (collectively, the Priorities USA plaintiffs), also appeal by right the June 24, 2020 order. The Court of Claims order denied PTV's motion for summary disposition, as well as the Priorities USA plaintiffs’ motion for a preliminary injunction, and granted the motions for summary disposition of the Secretary of State (the Secretary) and the Senate and House of Representatives (collectively, the Legislature). This Court consolidated the two cases and ordered that the appeals would be decided without oral argument. Promote the Vote v. Secretary of State , unpublished order of the Court of Appeals, entered July 8, 2020 (Docket Nos. 353977 and 354096).

Priorities USA is a "voter-centric progressive advocacy and service organization" that spends resources, including in the state of Michigan, to register young individuals to vote. Rise, Inc., is a "nonprofit organization that runs statewide advocacy and voter mobilization programs" in Michigan and California, as well as on a number of campuses throughout the country. Part of its mission is to increase voting access for college students. PTV is "a ballot question committee" that drafted the language of Proposal 3, a 2018 ballot proposal to amend Michigan's Constitution, collected more than 400,000 signatures in order to get the proposal placed on the ballot, and led the campaign for the proposal's passage.

On appeal, PTV and the Priorities USA plaintiffs argue that the proof-of-residency requirements in MCL 168.497(2) to (4), the challenged-ballot procedure in MCL 168.497(5), and the Secretary's automatic voter-registration policy unduly burden the rights in Const. 1963, art. 2, § 4(1) and are therefore unconstitutional. PTV and the Priorities USA plaintiffs also argue that MCL 168.497 violates the Equal Protection Clause of the Michigan Constitution. For the reasons discussed in this opinion, we affirm.

I. LEGAL BACKGROUND

In the 2018 general election, Michigan voters approved Proposal 3, which made changes to Michigan's election law. Specifically, Proposal 3 amended Const. 1963, art. 2, § 4. The article now provides:

(1) Every citizen of the United States who is an elector qualified to vote in Michigan shall have the following rights:

(a) The right, once registered, to vote a secret ballot in all elections.

* * *

(d) The right to be automatically registered to vote as a result of conducting business with the secretary of state regarding a driver's license or personal identification card, unless the person declines such registration.

(e) The right to register to vote for an election by mailing a completed voter registration application on or before the fifteenth (15th) day before that election to an election official authorized to receive voter registration applications.

(f) The right to register to vote for an election by (1) appearing in person and submitting a completed voter registration application on or before the fifteenth (15th) day before that election to an election official authorized to receive voter registration applications, or (2) beginning on the fourteenth (14th) day before that election and continuing through the day of that election, appearing in person, submitting a completed voter registration application and providing proof of residency to an election official responsible for maintaining custody of the registration file where the person resides, or their deputies.^[1] Persons registered in accordance with subsection (1)(f) shall be immediately eligible to receive a regular or absent voter ballot.

* * *

All rights set forth in this subsection shall be self-executing. This subsection shall be liberally construed in favor of voters’ rights in order to effectuate its purposes. Nothing contained in this subsection shall prevent the legislature from expanding voters’ rights beyond what is provided herein. This subsection and any portion hereof shall be severable. If any portion of this subsection is held invalid or unenforceable as to any person or circumstances, that invalidity or unenforceability shall not affect the validity, enforceability, or application of any other portion of this subsection.

(2) Except as otherwise provided in this constitution or in the constitution or laws of the United States[,] the legislature shall enact laws to regulate the time, place and manner of all nominations and elections, 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. No law shall be enacted which permits a candidate in any partisan primary or partisan election to have a ballot designation except when required for identification of candidates for the same office who have the same or similar surnames.^[2]

Following the 2018 general election, the Legislature enacted 2018 PA 603, which amended MCL 168.497. The first five provisions of MCL 168.497 now provide:

(1) An individual who is not registered to vote but possesses the qualifications of an elector as provided in [ MCL 168.492 ] may apply for registration to the clerk of the county, township, or city in which he or she resides in person, during the clerk's regular business hours, or by mail or online until the fifteenth day before an election.

(2) An individual who is not registered to vote but possesses the qualifications of an elector as provided in [ MCL 168.492 ] or an individual who is not registered to vote in the city or township in which he or she is registering to vote may apply for registration in person at the city or township clerk's office of the city or township in which he or she resides from the fourteenth day before an election and continuing through the day of the election. An individual who applies to register to vote under this subsection must provide to the city or township clerk proof of residency in that city or township. For purposes of this subsection, "proof of residency" includes, subject to subsection (3), any of the following:

(a) An operator's or chauffeur's license issued under the Michigan vehicle code, 1949 PA 300, MCL 257.1 to 257.923, or an enhanced driver license issued under the enhanced driver license and enhanced official state personal identification act, 2008 PA 23, MCL 28.301 to 28.308.

(b) An official state personal identification card issued under 1972 PA 222, MCL 28.291 to 28.300, or an enhanced official state personal identification card issued under the enhanced driver license and enhanced official state personal identification card act, 2008 PA 23, MCL 28.301 to 28.308.^[3]

(3) If an applicant for voter registration under subsection (2) does not have proof of residency as that term is defined in subsection (2), the applicant may provide as his or her proof of residency any other form of identification for election purposes as that term is defined in [ MCL 168.2 ] and 1 of the following documents that contains the applicant's name and current residence address:

(a) A current utility bill.

(b) A current bank statement.

(c) A current paycheck, government check, or other government document.

(4) If an applicant for voter registration under subsection (2) does not have identification for election purposes, the applicant may register to vote if he or she signs an affidavit indicating that the applicant does not have identification for election purposes and the applicant provides 1 of the following documents that contains the applicant's name and current residence address:

(a) A current utility bill.

(b) A current bank statement.

(c) A current paycheck, government check, or other government document.

(5) Immediately after approving a voter registration application, the city or township clerk shall provide to the individual registering to vote a voter registration receipt that is in a form as approved by the secretary of state. If an individual registers to vote in person 14 days or less before an election or registers to vote on election day, and that applicant registers to vote under subsection (3) or (4), the ballot of that elector must be prepared as a challenged ballot as provided in [ MCL 168.727 ] and must be counted as any other ballot is counted unless determined otherwise by a court of law under [ MCL 168.747 or MCL 168.748 ] or any other applicable law.

MCL 168.2(k) defines "identification for election purposes" as the following: "[a]n operator's or chauffeur's license issued under the Michigan vehicle code ... or an enhanced driver license issued under the enhanced driver license and enhanced official state personal identification card act"; "[a]n official state personal identification card ... or an enhanced official state personal...