Request for Advisory Opinion

740 N.W.2d 444

479 Mich. 1

In re REQUEST FOR ADVISORY OPINION REGARDING CONSTITUTIONALITY OF 2005 PA 71.

Docket No. 130589. Calendar No. 1.

Supreme Court of Michigan.

Argued November 13, 2006.

Decided July 18, 2007.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Susan Leffler, Assistant Attorney General for Law, and Heather S. Meingast, Assistant Attorney General, Lansing, for the Attorney General in support of the constitutionality of 2005 PA 71.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Henry J. Boynton, Assistant Solicitor General, and Ron D. Robinson, Assistant Attorney General, Division Chief, Civil Rights & Civil Liberties Division, Detroit, for the Attorney General opposing the constitutionality of 2005 PA 71.

Kelly G. Keenan and Steven C. Liedel, Lansing, for amici curiae Governor Jennifer M. Granholm.

Dickinson Wright P.L.L.C. (by Peter H. Ellsworth, Jeffery V. Stuckey and Allen L. Lanstra) and Craig De Roche, Lansing, for the Michigan House of Representatives.

Mark McWilliams and Veena Rao, Lansing, for amici curiae Michigan Protection & Advocacy Service, Inc.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Ron D. Robinson, Assistant Attorney General,

Division Chief, Civil Rights & Civil Liberties Division, and Genevieve Dwaihy Tusa, Assistant Attorney General, Detroit, for amici curiae Michigan Civil Rights Commission and Michigan Department of Civil Rights.

Sheila C. Cummings, House Democratic Legal Counsel, and Dianne Byrum, Lansing, for amici curiae Michigan House Democratic Caucus.

Sachs Waldman, P.C. (by Andrew Nickelhoff) John Wm. Mulcrone, Sheila C. Cummings, and Michael C. Murphy, Detroit, for amici curiae Michigan Democratic Party, Michigan House Democratic Caucus, Michigan Senate Democratic Caucus, and Michigan Legislative Black Caucus.

Lathrop & Gage L.C. (by Mark F. (Thor) Hearne, II, and Stephen K. Dexter), St. Louis, MO; Kansas City, MO, for amici curiae American Center for Voting Rights Legislative Fund and Kevin Fobbs.

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

Kelley Cawthorne, P.L.L.C. (by Frank J. Kelley), Lansing, for amici curiae Frank J. Kelley, Attorney General Emeritus.

Melvin B. Hollowell, Jr., Yvonne White, Reginald M. Turner, Jr., Karen Gibbs, Kary L. Moss, Mildred Madison, Kerene Moore, David Lagstein, N. Charles Anderson, John Johnson, Ruben Acosta, and David Krichbaum, Detroit, Zenna Elhasan, Dearborn, for amici curiae National Association for the Advancement of Colored People-Detroit Branch, Michigan State Conference National Association for the Advancement of Colored People, National Bar Association, American Civil Liberties Union of Michigan, League of Women Voters Detroit, American-Arab Anti-Discrimination Committee, Project Vote, Association of Communities for Reform Now, Latin Americans for Social and Economic Development, Inc., City of Detroit, Detroit Urban League, and National Conference Community and Justice-Michigan.

Jaffe Raitt Heuer & Weiss, P.C. (by Harold D. Pope, Brian G. Shannon, and Erika Butler-Akinyemi), Southfield, and Ben Blustein, Jonah Goldman, Jon Greenbaum, Marcia Johnson-Blanco, and Daniel B. Kohrman, Washington, D.C., for amici curiae Lawyers' Committee for Civil Rights Under Law and American Association for Retired Persons.

Sachs Waldman, P.C. (by Mary Ellen Gurewitz), Detroit, for amici curiae various Michigan county clerks, city clerks, and township clerks.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Patrick O'Brien, Assistant Attorney General, Lansing, for amici curiae Michigan Department of State, Bureau of Elections.

Opinion

YOUNG, J.

Article 3, § 8 of the Michigan Constitution allows the Governor or either house of the Legislature to request the opinion of this Court "on important questions of law upon solemn occasions as to the constitutionality of legislation. . . ." We granted the House of Representatives' request to opine on the constitutionality of 2005 PA 71, MCL 168.523. Of concern to the House is the constitutionality of the requirement that voters either present photo identification or sign an affidavit averring that the voter lacks photo identification before voting.

We hold that the photo identification requirement contained in the statute is facially constitutional under the balancing test articulated by the United States Supreme Court in Burdick v. Takushi.¹ The identification requirement is a reasonable, nondiscriminatory restriction designed to preserve the purity of elections and to prevent abuses of the electoral franchise, as demanded by art. 2, § 4 of the Michigan Constitution, thereby preventing lawful voters from having their votes diluted by those cast by fraudulent voters. Moreover, as no voter is required to incur the costs of obtaining a photo identification card as a condition of voting, the identification obligation imposed by MCL 168.523(1) cannot properly be characterized as an unconstitutional poll tax under the Twenty-fourth Amendment of the United States Constitution.

I. UNDERLYING BACKGROUND FACTS

In 1996, our Legislature amended the Michigan Election Law, MCL 168.1 et seq., to include § 523, which required a voter to present photo identification before voting. The 1996 amendment was nearly identical to the statutory provision at issue in this case.² However, before the amendment became effective, an opinion of the Attorney General issued, concluding that the photo identification requirement in § 523 violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.³ Specifically, the Attorney General opinion indicated that the photo identification requirement was "not necessary to further a compelling state interest" in the absence of evidence of "substantial voter fraud in Michigan" and that the requirement imposed "economic and logistical burdens" on those without photo identification.⁴ Therefore, although the law was passed by both houses and signed by the Governor, the Secretary of State has never complied with or enforced this validly enacted law.⁵

Subsequent events brought renewed interest in election reform. The 2000 presidential election revealed highly publicized alleged deficiencies in the electoral system in several states.⁶ In an effort to address these deficiencies, Congress passed the Help America Vote Act (HAVA) in 2002, which imposed minimum administration standards on state elections.⁷ HAVA requires that first-time voters who register by mail present proof of identity in the form of photo identification or other alternative documentation.⁸ In addition, HAVA specifically indicates that its provisions establish minimum requirements, explicitly authorizing states to institute consistent "administration requirements that are more strict" than the federal requirements.⁹

After the enactment of HAVA, the Commission on Federal Election Reform was formed to "assess HAVA's implementation" and to "offer recommendations for further improvement."¹⁰ The findings and recommendations of the commission were released in September 2005. One recommendation proposed that voters provide photo identification in order to deter fraud and enhance ballot integrity.¹¹ The commission noted that "[t]he electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo IDs currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important."¹²

MCL 168.523, with its photo identification requirement, was amended by 2005 PA 71. Concerned by the adverse Attorney General opinion regarding the previous enactment of § 523, the Michigan House of Representatives adopted a resolution requesting that this Court issue an advisory opinion regarding whether the photo identification requirements contained in 2005 PA 71 violate either the Michigan Constitution or the United States Constitution.¹³ We granted the request, asking the Attorney General to submit briefs and argue as both opponent and proponent of the issue.¹⁴

II. APPLICABLE STANDARDS AND JURISDICTIONAL ISSUES

The question presented in this original proceeding, whether MCL 168.523 is facially violative of either the Michigan Constitution or the United States Constitution, is purely a question of law. To the degree the provisions are congruous, this Court has previously construed Michigan's equal protection provision¹⁵ to be coextensive with the Equal Protection Clause of the federal constitution.¹⁶

A statute challenged on a constitutional basis is "clothed in a presumption of constitutionality,'¹⁷ and the burden of proving that a statute is unconstitutional rests with the party challenging it.¹⁸ A party challenging the facial constitutionality of a statute `faces an extremely rigorous standard,'<sup>19</sup> and must show that `no set of circumstances exists under which the [a]ct would be valid.'"²⁰

As a preliminary matter, the opposing Attorney General claims that this Court lacks the constitutional authority to issue an advisory opinion in this case because the request for the advisory opinion was untimely. Const. 1963, art. 3, § 8 provides that either house of the Legislature or the Governor may request an advisory opinion regarding the constitutionality of legislation "after [the legislation] has been enacted into law but before its effective date."

The opposing Attorney General maintains that, because 2005 PA 71 was an amendment of 1996 PA 583, MCL 8.3u dictates that the effective date of 2005 PA 71 was March 31, 1997, the effective date of 1996 PA 583.²¹ Essentially, the opposing Attorney General claims that Const. 1963, art. 3, § 8 cannot be satisfied because the effective date of the public act occurred eight years before 2005 PA 71 existed. This misconstrues MCL 8.3u, which merely requires that once a reenacted, amended, or...