COA Affirms That Election Law is Unconstitutional
In a case of first impression that has brought Michigan national attention, the Court of Appeals affirmed Ingham County Circuit Court's (Judge Collette) decision that rendered Michigan's new election law unconstitutional. The State of Michigan brought Grebner v State of Michigan as an emergency appeal and the Court issued its opinion on November 16, 2007 (Judges Meter and Owen in the majority, Judge Whitbeck dissenting).
The State's appeal presented the narrow question to the Court of whether voter lists were "public property being used for private purposes" because the Act required the Secretary of State to provide the lists of the names of persons who voted in the Presidential primary and whether they voted in the Democrat or Republican primary. Chief Judge Whitbeck noted in his dissenting opinion that the reasons this narrow and tangential issue has reached the forefront of the State's attention is because, when the Legislature enacted the law, it included a non-severability clause, which means that if any part of the Act is unconstitutional, then the entire act falls, including the portion of the Act which changed Michigan's election primary date for this year's presidential primary election to January 2008.
According to the Michigan Constitution, "The assent of two-third of the members elected to and serving in each house of the legislature shall be required for the appropriation of public money or property for local or private purposes." The Legislature did not garner a 2/3rds vote to appropriate State funds for the purpose of distributing the voter lists to the two major political parties. The majority and dissent disagreed as to whether distributing the list was "for a private purpose."
It remains to be seen whether the Legislature will be able to fix the Act in time for Michigan to hold a presidential primary election, or whether the Michigan Supreme Court will take issue with the Court of Appeals' majority decision. Either way, time will tell...and soon. [NOTE: The Supreme Court reversed the COA's decision on November 21, 2007, in a 4-3 vote. Click for the Supreme Court order].
