Michigan Advisory Opinions September 04, 1980: AGO 5769 (September 4, 1980)

AGO 5769.

You have requested my opinion whether a voter who provides election officials with information other than birth date may be denied the right to vote where the voter refuses to disclose his or her birth date.

The Michigan Election Law, 1954 PA 116, Sec. 523, as added by 1978 PA 338; MCLA 168.523; MSA 6.1523 sets forth the procedure to be followed for issuing a ballot to a registered elector offering to vote at an election, and provides:

'At each election, each registered elector offering to vote, before being given a ballot, shall identify himself or herself by executing an application showing his or her signature or mark and address of residence in the presence of an election official. If the voter registration cards are used in the precinct, the election official in charge of the precinct registration file shall compare the signature upon the application with the signature upon the registration card. If voter registration lists are used in the precinct, the election inspector shall determine if the name on the application to vote appears on the voter registration list. If the name appears on the voter registration list, the elector shall provide further identification by giving his or her date of birth or other information stated upon the voter registration list. In precincts using voter registration lists the date of birth may be required to be placed on the application to vote. If the signature or an item of information does not correspond, the vote of the person shall be challenged and the same procedure shall be followed as provided in this act for the challenging of an elector. If the person offering to vote has signed the registration card or application by making a mark, the person shall identify himself or herself by giving his or her date of birth, which shall be compared with the date of birth stated upon the registration card or voter registration list, or shall give other identification as may be referred to upon the registration card or voter registration list.

'(2) If, upon a comparison of the signature or other identification, it is found that the applicant is entitled to vote, the election officer having charge of the registration list shall approve the application and write his or her initials on the application, after which the number on the ballot issued shall be noted on the application. . . .' [Emphasis supplied.]

Thus, 1954 PA 116, Sec. 523(1), supra, provides two methods whereby election officials may verify the contents of an application to vote. First, where voter registration cards are utilized, election officials shall compare the signature upon the application with the signature upon the registration card. Alternatively, if voter registration lists are utilized, the election inspector shall determine whether the name on the application to vote appears upon the voter registration list, and if so, the elector shall provide additional information by giving date of birth or 'other information stated upon the voter registration list.' Section 523(1) further provides that where voter registration lists are utilized, the birth date 'may be required to be placed' on the application to vote. You advise me that in certain instances where voted registration lists are utilized, election inspectors have refused to issue ballots to individuals who have refused to disclose their date of birth as stated upon the voter registration lists. In such circumstances, the election inspectors have refused to accept, in lieu of birth date information, other information contained on the voter registration lists which would corroborate the voter's identity. You inform me that such election officials base their insistence on the providing of birth date information of the voter application by virtue of the language contained in section 523(1), supra, which provides that '[i]n precincts using voter registration lists, the date of birth may be required to be placed on the application to vote.'

Const 1963, art 2, Sec. 1, prescribes the qualification of electors. The constitutional provision is implemented by 1954 PA 116, supra, Sec. 492, which states:

'Every person who has the following qualifications of an elector, or who will have such qualifications at the next ensuing election or primary election, shall be entitled to be registered as an elector in the township, ward, or precinct in which he or she resides. Such person must be a citizen of the United States; at least 18 years of age; a resident of the state for at least 30 days; and be a resident of the city, township, or village on or before the thirtieth day prior to the next ensuing regular or special election or primary election.'

Further, Const 1963, art 2, Sec. 4, provides in part that:

'[t]he legislature shall enact laws to preserve the purity of the 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.'

The right to vote is a fundamental constitutional right, and any statute impinging on the right to vote must be precise in its regulation. Michigan State UAW Community Action Program Council v Secretary of State, 387 Mich 506, 517; 198 NW2d 385 (1972); OAG, 1979-1980, No 5543, p ___ (August 15, 1979). Restrictions on the right to vote must meet the 'compelling state interest' test. Kramer v Union Free School District, 395 US 621; 89 S Ct 1886; 23 LEd 2d 583 (1969); Phoenix v Kolodziejski, 399 US 204; 90 S Ct 1990; 26 LEd 2d 523 (1970).

Accordingly, the dispositive question is whether a compelling state interest justifies the denial of the right to vote to voters in precincts using voter registration lists who refuse to disclose the date of birth on the application to vote, where other corroborative information has been placed on the voter registration lists, pursuant to 1954 PA 116, Sec. 523(1), supra.

In Michigan State UAW Community Action Program Council, supra, the Michigan Supreme Court held that 1954 PA 116, supra, Sec. 509, which provided for suspension of registration of all electors who failed to vote or take other specified action within a period of two years, unconstitutional for lack of a compelling state interest. The Court determined that, since a compelling state interest was not demonstrated, the election code provision violated Const 1963, art 2, Sec. 1, supra. In reaching its determination of unconstitutionality, the Court quoted with approval from United States v Alabama, 252 F Supp 95 (MD Ala, 1966):

'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.'

In Wilkins v Ann Arbor City Clerk, 385 Mich 670; 189 NW2d 423 (1971) the Court held unconstitutional 1954 PA 116, supra, Sec. 11(b) which placed a burden on students' right to vote where each student was required to overcome a statutory presumption that the student was not a resident in the locale of the educationsl institution, where the statute provided that no elector shall be deemed to have gained or lost a residence while a student. The court ruled that the provision did not further any compelling state interest, and thus was violative of the due process and equal protection clauses of the Michigan and United States Constitutions. The Court stated:

'Subsection [section 11] (b), as it applies to students, is overly broad and grants a constitutionally prohibited discretion to local clerks in Michigan. The ability to exercise the precious right to vote cannot depend on whether a student attends school in a large city or a smaller town. Reynolds v Sims (1964), 377 US 533, 84 S Ct 1362, 12 LEd 2d 506.' 385 Mich 670, 679.' [Emphasis supplied.]

1954 PA 116, Sec. 523(1), supra, established two methods whereby election officials may review the application of a registered elector who offers to vote, depending on whether voter registration cards or voter registration lists are utilized in the precinct. Where voter registration cards are used, the election official shall compare the signature upon the application to vote with the signature upon the registration card, and if the signature does not correspond, the vote of the person shall be challenged. In such precincts, election officials are not statutorily authorized to require electors to disclose date of birth or other information. (fn1)

On the other hand, 1954 PA 116 Sec. 523(1), supra, provides an alternative procedure where voter registration lists are used in the precinct. Where the signature on the application to vote appears on the voter registration list, it is provided that the elector shall furnish further identification by disclosing the date of birth or other information stated upon the voter registration list. (fn2) Thus, the legislature has mandatorily provided, by use of the word 'shall' that where voter registration lists are used, and the elector's name appears on the voter registration list, the elector shall provide further identification by giving either the date of birth or other information stated upon the voter registration list. Conversely, as 1954 PA 116, Sec. 523(1), supra, further provides that where voter registration lists are used, the date of birth 'may' be required to be placed on the application to vote, indicates that the same is directory, and not mandatory. Southfield Township v Main, 357 Mich 59; 97 NW2d 821 (1959); OAG, 1930-1932, p 563-565 (May 5, 1932). Therefore, where a local unit which utilizes voter registration lists, seeks in its discretion, to require the placing of the date of birth on the application to vote, and the applicant refuses to disclose his or her birth date, the elector shall be afforded the opportunity to provide futher identification by giving 'other information stated upon the voter registration lists.' In precincts utilizing voter registration lists, where the birth date or an item of information does not correspond to the voter registration list, the vote of the person may the challenged, pursuant to the same procedure in the case where voter registration cards are used. However, it is clear that in the case of voter registration lists, a person may not be denied the right to a ballot, and, hence, the right to vote, for failure to disclose his or her birth date on the application to vote.

Where an elector possesses the qualifications of an elector pursuant to 1954 PA 116, Sec. 492, supra, any law which would purport to deny the right to vote is unconstitutional. OAG, 1928-1930, p 142 (November 1, 1928). It may not be assumed that the legislature intends to establish different rules of suffrage in different parts of the state, so as to create inequalities among voters, depending on whether voter registration cards or voter registration lists are utilized. See Warren v Board of Registration, 72 Mich 398; 40 NW 553 (1888); OAG, 1930-1932, supra. In Gottlieb v Hofheinz, 523 SW 2d 7 (Tex Civ App 1975), reh den, the court construed Article 8.08 of the Texas Election Code, which provided in subdivision 3:

'There shall be kept at each polling place a signature roster of persons offering to vote at the election. Each person offering to vote shall sign the roster if he is able to do so. . . .'

In rejecting the claim that the language imposed a mandatory signature requirement on electors, the court instructively commented:

'We find no provision in the Texas Constitution requiring voters to sign a signature roster, and we find nothing in the provisions of Art. 8.08 which by express language or by any reasonable implication evidences an intention on the part of the legislature that a qualified voter shall not vote or that his vote shall not be counted if he fails or refuses to sign the signature roster.' 523 SW2d 7, 10.

Similarly, based upon the above-cited Michigan authorities, and Const 1963, where an elector in a registration list precinct offers to vote, and refuses to disclose his or her date of birth on the application, such person shall be afforded the opoortunity to provide 'other information' contained on the voter registration list, and shall not be denied the right to vote. Further, if such person does not provide the birth date or other information, or the same is unsatisfactory, the elector shall be challenged. 1954 PA 116, Sec. 523(1), supra. Unless so construed, the challenged language of section 523(1), supra, as it applies to applicants to vote in voter registration precincts who refuse to disclose their birth date, must be viewed as granting constitutionally impermissible discretion to local election officials. Paraphrasing the Court in Wilkins, supra, the ability of an otherwise-qualified elector to exercise the fundamental right to vote may not be made to depend on whether the person discloses his or her birth date, and the Legislature may not constitutionally so provide.

Therefore, it is my opinion that under 1954 PA 116, Sec. 523(1), supra, where voter registration lists are utilized, a voter who provides information such as the maiden name of the mother of the elector shall not be denied the right to vote if he or she refuses to disclose the birth date of the elector. Further, if such person refuses to disclose the date of birth or such other information, such person may be challenged under the provisions of 1954 PA 116, Sec. 523(1), supra, but may not be denied the right to vote.

Frank J. Kelley

Attorney General

1. The information to be contained in voter registration cards is specified by 1954 PA 116, supra, Secs. 493, 495 (contents of registration affidavit and Sec. 499 (voter identification cards).

2. See 1954 PA 116, supra, Sec. 501a, as added by 1978 PA 338.