Michigan Presidential Primary Declared Unconstitutional

[Patrick Levine Rose]

Dear Election Integrity List-mates:

Please consider the following reasons why the Michigan Presidential Primary Law is unconstitutional and comment by reply email if you have thoughts. Email me at patri...@voyager.net. I will forward your ideas to the attorney drafting the response to the State of Michigan's emergency application filed today.

 

The Michigan Legislature devised a new law in August 2007 for the Presidential primary election under which local election administration official are mandated to create a list for the sole benefit of the parties that includes voters who voted in the primary. This list does not have the status of the federally and state mandated Qualified Voter File (QVF) (i.e. a statewide list of voters who are registered to vote). The special primary list that must be created is solely of voters who cast a ballot in the partisan "closed" primary. It is this list that is created for the sole benefit of, and use by, the Democratic and Republican parties (i.e. any other party getting 20% of votes in the last Presidential general election.) The State Freedom of Information Act exempts this voter list. The public is NOT entitled to see the list. Only the parties can see the list. The parties can sell the list, but the public cannot use it, or get any of the profits earned on sale of the list. The list can only be used by the parties for three purposes: (1) to support or oppose candidates, (2) to support or oppose ballot proposals, (3) to support party activities.

Isn’t an election like a public meeting where the record of the meetings is public?

If so, how can the list be privatized?

If an election is privatized in this way, what does that say about the "public office"

the election is supposed to create?

Is there a federal law issue here – such that, even if the state courts uphold this privatizing of the list of voters for the sole benefit of the parties, it violates federal law

The Michigan Supreme Court will decide if the state constitution is violated by the making private of the list of voters in the Michigan Presidential primary. This provision is the subject of an emergency petition filed today by the State of Michigan and Secretary of State in the Supreme Court, seeking to reverse the COA.

The case must be decided in two days – i.e. by Wed., Nov. 21 – in order for the State to be able to hold the presidential primary election in Michigan under statutory law -- or at least that is what the State of Michigan and Secretary of State have alleged on the first page of their Emergency Application for Leave to Appeal.

The COA issued Opinion in Docket No. 281814 on Friday (Nov. 16, 2007) affirming Court of Claims Judge William Collette's order (of Nov. 9) deeming the Michigan Election Law relating to the Presidential Primary (2007 PA 52) ("the Act") to be unconstitutional. Judges Meter and Owens (in a 4 page Opinion by Judge Meter) found the Act violates Const. 1963, art 4, Sec. 30, since it "appropriates .. public property .. for [a] private purpose."

I think it is possible the Mich Sup Ct may adopt Judge Whitbeck's dissent. I admire his thoroughness and the obvious effort he put into this decision, under the most torturous time constraints imaginable. It is really rather amazing. I comment not because I think the Opinion is totally wrong -- to the contrary, he is correct, in my view, on almost every point he addresses -- except the question of whether the provision of the Michigan Election law that mandates local election officials to create a special list for exclusive use by the political parties serves a PUBLIC purpose. He correct finds it serves a PRIVATE purpose -- which I think is correct -- but then goes on to say it ALSO serves a PUBLIC purpose -- a conclusion I disagree with. But, even if Judge Whitbeck is correct in his analysis (i.e. that the law serves BOTH a public and a private purpose, doesn't this render it unconstitutional? (See below) ????

Chief Judge Whitbeck’s 18 page dissenting opinion would find that the Election Law does appropriate public property, but finds that the use of the voter lists by the party that the Act allows is a PUBLIC purpose. By this 2-1 vote, the COA has affirmed the ruling invalidating the statute. The Legislature made the provision at issue that has been declared unconstitutional non-severable.

Judge Whitbeck finds that turning over the political lists of the voters who voted in the partisan primaries only to the political parties, while denying them to all other persons, and exempting them from FOIA disclosure, serves (1) private purposes, and (2) public purposes. Judge Whtbeck states that the Election Law's grant of authority to the political parties to have exclusive access to, and use of, the lists to "supporting party activities" is a "use of the list for a PRIVATE purpose." (My emphasis.) Moreover, as Judge Whitbeck notes, the Secretary of State conceded the political parties are private entities. (Slip Op., p.16). Then Judge Whitbeck reasons that the parties are also authorized to use the lists to support or oppose candidates, and this is a PUBLIC purpose. And he states that the Election Law allows the parties to use the lists to support or oppose ballot proposals. (Slip. Op., p.16.) He then says that this use is PUBLIC because, "as with contributions and expenditures by corporations, the participating political parties' use of the lists will serve to enlighten the public and encourage an informed decision-making process." (Slip. Op., p.16). He concludes that, since the lists may be used for both public and private purposes, there is no appropriation for a private purpose.

Here are my questions:

(1) does it not appear that the above analysis (rejected by Judges Owen and Meter) is illogical on its face. If the use of the list that the law grants to private entities includes private purposes, doesn't that violates the ban in the Mich Const. 1963, Art 2, Sec. 4, making it irrelevant that there is also a separate public purpose that the law also specifically envisions.

(Note: If the law allowed parts of the statute to be struck down, then Judge Whitbeck would have a point, and he could strike the offending portion, i.e. the law's grant of authority to the Michigan poltiical parties to use the lists for the unconstitutional private purposes, i.e. supporting political parties, and allow the constitutional portion of the statutory permission for exclusive political party use of the lists to stand (i.e. the public purpose of supporting candidates.)

(2) When Judge Whitbeck observes on Slip Op., p.17 that "the government conducts elections while the potlicial parties and their candidates conduct campaigns," he is contemplating a separation of the election process and campaign process we all take for granted. But, now that he has said it is constitutional to let the secret ballot cast by a primary voter be given to the political parties, so that they can use the lists to solicit donations, and set up robo telephone automatid calling to interrupt the family dinner hour all through the Fall (but only calls from the party) ... isn't the dissenting view making it impossible to separate elections and campaigns. Judge Whitbeck sees this point, and seems to admit it, when he writes: "[w]hile it is possible to conceive of elections without campaigns, the reality is that the two are inseparable in almost every instance of political life in this country and in this states." (Slip. Op. p.17).

(Note: But, in respect to use of the lists of the voters who cast a ballot, there is no evidence of any state of federal election in which any statute or regulation has allowed, or authorized or mandated, as this statute does, that election officials must compile the voter's identities in separate lists for each of the two political parties who hold the closed primary, and then give those lists only to the political parties, while making it a crime for the Secretary of State to disseminate them to anyone else who may wish to get the same advantage of knowing who voted in the primaries.)

It would seem to me that the PUBLIC PURPOSE of the election is served ONLY if ALL persons seeking access to the list are given access to it (i.e. as is the case when the FEC publishes the name of anyone who contributes to a political campaign, on its website, as part of the mandatory disclosure of such contributions) OR if the identifies and names and list of voter is kept confidential and secret and disclosed to no one.

The idea of giving this list to the political parties, but then denying it to others, who support the party objectives, but wish to use the list independent of the parties, cannot be defended as serving the interests of the federal law regulating political parties. Under federal law, the state is mandated to keep the Qualified Voter File, and political party activities are limited. There is no precedent under federal law or under the law of any other to give the parties access to the voter lists, like this, and then give the parties a monopoly of the use of those lists. Many voters may feel that this compromises their vote -- i.e. puts a penalty on it of appropriating it to benefit just the parties, and NOT all the other groups seeking to support the same goals as the parties.

In the last election for President in 2004, the big development was that Move On. Org and George Soros and a whole variety of other groups helped to get out the vote, and campaign in support of John Kerry and Democratic congressional candidates. Without this non-political party activity, and money, the Democratic party would not have done as well as it did. Similarly, an identical development occurred on the Republic side. Do you remember the Swift Boat Veterans. They were a group supporting the Republicans with no ties to the political parties. Do you remember Karl Rove's get out the vote efforts -- that were masterminded by him. They were implemented by third party groups not affiliated with the major political parties.

Don't we want a vibrant democracy in which all of these groups all get equal access to these lists or NO ONE gets access to them?

I would request a frank exchange by members of this list ON THE MERITS of the constitutional question. I think it would help shape a decision on this case that would reflect the "best thinking." There are too few people involved in briefing these issues AND given the time constraints, this list serve can fill a gap.

I think if we have a good discussion of the legal merits, and if anyone happens to be listening, it may benefit us all.

Note: I have not read any of the pleadings filed by the Plaintiffs seeking to invalidate the law. I have only read what the Secretary of State filed in the Mich Sup Ct. today, and the COA Opinions. I do not represent any party either (i.e. neither an actual party nor an amicus party).

Coda: The Silver Lining: If the COA decision is upheld in the Mich. Sup. Ct., then the Presidential Primary will not go forward. Caucuses would then have to be held by the political parties, rather than an election. The Democratic party might choose not to hold a caucus -- OR, due to the fact the election is cancelled, the Democratic party might decide to hold a caucus AFTER February 1, and thereby avoid the sanctions imposed by the DNC for violation of the rules banning early primaries -- that has resulted in Michigan Democratic party voters losing the chance to vote for any candidate other than Hillary Clinton and losing the right to have her delegates, if she wins, being counted at the Convention. So, ironically, the invalidating of the Michigan Election Law might give back to Democratic party primary voters a way to vote (albeit in a caucus) by chossing from one of the candidates running in Iowa, NH, etc (i.e. to choose from all the candiates in the field, not just Hillary.)

Patrick Levine Rose (Tel: 517-351-7673)

Patrick Levine Rose
Attorney At Law
321 Woodland Pass, Suite 400
East Lansing, MI 48823
Tel: (517) 351-7673; Fax: (517) 351-2221
Cell: (517) 202-1955; Email:
patri...@voyager.net