LANSING ? Michigan residents will be required to provide a driver’s license to vote after the Supreme Count, in an advisory opinion issued Wednesday, upheld the requirement renewed in a 2005 law, dismissing arguments that it infringed on voter rights or constituted an illegal poll tax.
The court majority, and those who supported the law, said it will guard against election fraud, while opponents said the state has not had a history of such abuses and the law is too intrusive and would raise new barriers to voting for some 350,000 mostly low-income individuals who do not have driver’s licenses.
More challenges may be ahead, though exactly how they may be constituted is not clear. Democratic Party Chair Mark Brewer said he would consult with allies to determine how to protect the rights of voters who he said will be disenfranchised by the law. The advisory opinion was issued on the basis of constitutional arguments, but not with any factual history since the law had never been applied.
The initial requirement, passed at the end of a brief period of all-Republican control of the Legislature in 1996, was blocked by an opinion by then-Democratic Attorney General Frank Kelley who found it was unconstitutional. It was then passed again in 2005 in a bill requiring digitized signatures, and the ensuing legal debate opened a side skirmish on the authority of the attorney general to issue opinions on the constitutionality of laws.
Justice Robert Young Jr. said the ID requirement: “is a reasonable, nondiscriminatory restriction designed to preserve the purity of elections and to prevent abuses of the electoral franchise.”
Because voters are not required to incur the cost of obtaining the photo ID, the requirement cannot be said to be a poll tax in violation of the U.S. Constitution, the court said (In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, SC docket No.). The opinion was signed by Chief Justice Clifford Taylor and Justices Maura Corrigan, Stephen Markman and Elizabeth Weaver.
Brewer called the decision “simply wrong. These photo identification laws are nothing more than a poll tax and are part of an ongoing strategy by Michigan Republicans to disenfranchise minority and older voters. There is no problem with voter fraud or voter misrepresentation in Michigan which could justify this disenfranchisement of voters.”
Republican Party Chair Saul Anuzis said such assertions ignore the obvious abuses that have been occurring, such as attempts to cast votes on behalf of George W. Bush from a Flint warehouse address and by people whose death certificates were signed 30 days before an election.
Anuzis said the decision “improves and protects the integrity of the voting process.” He also said it will make the system easier, enabling election clerks to take advantage of electronic strips on the back of ID cards to quickly bring up a voter’s file.
Secretary of State Terri Land, who supported the law, emphasized that Michigan’s law permits voters to cast ballots even without a photo ID by filling out an affidavit swearing to their identity, an act that would open them up to perjury if it is shown they were not the authorized voters.
Ken Silfven, a spokesperson for the Secretary of State, said reviews are underway to determine when the law will be used for the first time. “We don’t know if it will be August or November. We also are determining which photo documents will be acceptable.”
The Department of State plans to adopt rules specifying what alternative documents will be acceptable in addition to common documents such as drivers licenses, military ID cards and passports.
House Minority Leader Craig DeRoche (R-Novi), who initiated the opinion request last year when he was the speaker, said the ruling “protects the rights of every voter to have their voice heard and their vote counted, and I am gratified the court has decided this issue once and for all. If grocery stores can require a photo ID when accepting a check and sandwich shops can require a photo ID when a customer uses a debit card to buy their lunch, our state elections officials must be able to ask for a photo ID when protecting the integrity of Michigan elections.”
Gov. Jennifer Granholm, who signed the 2005 bill containing the provisions in which the ID requirements were attached just prior to final passage, later argued in briefs before the court that requiring photo ID “would have the unfortunate effect of disenfranchising those without government-approved photo identification cards, often the poorest of our citizens, along with the elderly, the disabled, racial and ethnic minorities, and others who, though fully eligible, registered, and qualified to vote, lack state-approved identification and are unable to obtain one.”
William Knox, associate state director of government affairs for the AARP, said the decision is regretful “because many elderly just aren’t going to have photo ID available. A lot don’t even have birth certificates, mainly because they have just been lost over time.”
Recent court challenges in other states have gone both ways: similar laws were upheld in Arizona and Indiana and voided in Missouri whose requirements allowed for both photo and non-photo documents to be used, according to electionline.org.
The Michigan court majority noted that Land said in a letter to the court that it is impossible to detect in-person fraud absent an ID requirement, adding, “It is reasonable to require the person seeking to cast a ballot to provide reliable identification that he is, in fact, the individual registered to vote.” It said the Legislature is permitted to guard against voter fraud even without proof that a significant problem exists.
In addition to not being compelled to obtain a photo ID, the court noted that provisions permit the Secretary of State to waive fees for the elderly or others in need when issuing a photo ID. And, it said, the ID mandate “applies evenhandedly to every registered voter in the state of Michigan without making distinctions with regard to any class or characteristic.”
Justice Michael Cavanagh said the requirement is not narrowly tailored to meet a compelling state interest, especially given other laws which already make voter fraud a felony and because of no proof of a significant voter fraud problem in Michigan. “The photo identification requirement that is being touted as a solution to a nonexistent problem is indeed unconstitutional because it addresses an imaginary problem while significantly undermining and burdening our citizens’ constitutional rights,” he said.
He said the requirement “significantly impairs the fundamental right to vote for thousands of Michigan citizens” not just with the cost of the document but the time and absence from work entail in getting it. Cavanagh also said the affidavit requirement is more burdensome that the majority admits, and that it invites harassment and intimidation of voters who use that option.
In a separate dissent, Justice Marilyn Kelly, who also said significant voter fraud has not been demonstrated in Michigan, said the requirement fails to meet the strict scrutiny analysis required by the federal constitution.
Responding to what it called highly-emotional arguments from Cavanagh, the court said, “Whether the incidence of in-person voter fraud is believed to be rare or frequent, the fact of the matter is that no voter identification was required before the enactment of MCL 168.523 and no one knows-or could possibly know-the frequency with which in-person voter fraud occurs at the polls.”
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