Order Michigan Supreme Court
Lansing, Michigan
November 21, 2007 Clifford W. Taylor,
Chief Justice
135274 & (36)(37)(40)(41)(42) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
MARK L. GREBNER, BENTON L. Robert P. Young, Jr.
BILLINGS, LOTHAR S. KONIETZKO, Stephen J. Markman,
Justices
AUBREY D. MARRON, JOSEPH S.
TUCHINSKY, HUGH C. McDIARMID,
BERL N. SCHWARTZ, and PRACTICAL
POLITICAL CONSULTING, INC.,
Plaintiffs-Appellees,
v SC: 135274
COA: 281814
Ingham CC: 07-001507-CZ
STATE OF MICHIGAN and SECRETARY
OF STATE,
Defendants-Appellants.
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On order of the Court, the motions for immediate consideration and to file briefs
amicus curiae are GRANTED. The application for leave to appeal the November 16,
2007 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1),
in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals,
generally for the reasons stated in the Court of Appeals dissenting opinion, and we
REMAND this case to the Ingham Circuit Court for entry of an order denying the
plaintiffs’ motions and dismissing the complaint. The motion for stay is DENIED as
moot.
(A) The issue here is whether MCL 168.615c, which was enacted by the
Legislature with a vote of less than two-thirds of the members of each house, violates
Const 1963, art 4, § 30.
(B) MCL 168.615c provides, in pertinent part:
(1) In order to vote at a presidential primary, an elector shall indicate
in writing, on a form prescribed by the secretary of state, which
participating political party ballot he or she wishes to vote when appearing
to vote at a presidential primary.
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***
(3) The secretary of state shall develop a procedure for city and
township clerks to use when keeping a separate record at a presidential
primary that contains the printed name, address, and qualified voter file
number of each elector and the participating political party ballot selected
by that elector at the presidential primary.
***
(5) To ensure compliance with the state and national political party
rules of each participating political party and this section, the records
described in subsection (3) shall be provided to the chairperson of each
participating political party as set forth in subsection (6).
***
(8) A participating political party may only use the information
transmitted to the participating political party under subsection (6) to
support political party activities by that participating political party,
including, but not limited to, support for or opposition to candidates and
ballot proposals.
(C) Const 1963, art 4, § 30 provides: “The assent of two-thirds of the members
elected to and serving in each house of the legislature shall be required for the
appropriation of public money or public property for local or private purposes.”
(D) This Court “must presume a statute is constitutional and construe it as such,
unless the only proper construction renders the statute unconstitutional.” In re Petition by
Wayne Co Treasurer, 478 Mich 1, 9 (2007).
(E) If an appropriation predominantly serves a public purpose, it is not an
appropriation for a private purpose. Advisory Opinion on Constitutionality of 1975 PA
227 (Questions 2-10), 396 Mich 465, 496 (1976). “The fact that certain individuals
benefit from the appropriation does not necessarily imply that the appropriation is lacking
a public purpose. The question is whether society at large has an interest in having those
individuals benefited.” Id.
(F) Because “the determination of what constitutes a public purpose for which an
appropriation of public money may be made is primarily the responsibility of the
Legislature,” id. at 495-496, considerable deference is owed to the Legislature’s
determination. Baker v Carr, 369 US 186, 217 (1962). “[D]etermination of what
constitutes a public purpose involves consideration of economic and social philosophies
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and principles of political science and government. Such determinations should be made
by the elected representatives of the people.” Gregory Marina, Inc v Detroit, 378 Mich
364, 394 (1966).
(G) Political parties unquestionably serve a public purpose. As the United States
Supreme Court explained, “parties and their representatives have become the custodians
of official power . . . ; and that if heed is to be given to the realities of political life, they
are now agencies of the state, the instruments by which government becomes a living
thing.” Nixon v Condon, 286 US 73, 84 (1932). See also generally Smith v Allwright,
321 US 649 (1944), and Terry v Adams, 345 US 461 (1953), on the uniquely “public
functions” carried out by political parties within the electoral process.
(H) As a consequence of MCL 168.615c, the political parties are given access to
certain information gathered at public expense in order to support or oppose candidates
and ballot proposals. The debate engendered as the result of that access is integral to the
operation of our democracy, our electoral process, and our political campaigns and thus
serves a public purpose by “enlighten[ing] the public and encourag[ing] an informed
decision-making process.” Advisory Opinion, supra at 494. “Discussion of public issues
and debate on the qualification of candidates are integral to the operation of the system of
government established by our constitution.” Buckley v Valeo, 424 US 1, 14 (1976).
(I) Whether there are better means of serving these same interests, and whether the
costs of permitting that access are warranted in light of their benefits, are principally
matters for legislative, not judicial, determination. “[I]t is well within the legislature’s
powers to so determine.” Advisory Opinion, supra at 497.
(J) We respectfully disagree with the Court of Appeals majority that the public
purpose served here is merely “incidental[].” Instead, the “predominant” role that
political parties serve in our system of government is informing the public about
candidates and ballot proposals and facilitating public debate in the context of such
candidates and ballot proposals. This is indisputably a “public purpose” and such
purpose appears central to the legislative judgment. Indeed, it is hard to comprehend
what alternative purpose the Legislature might have contemplated in enacting MCL
168.615c.
(K) The consideration and balancing of “public” and “private” interests in this
case do not require that this Court construe these or any other terms in a “broad” or
“narrow” manner, as asserted by the Court of Appeals dissent. Rather, such terms need
only be interpreted in a reasonable manner.
(L) For the reasons discussed above, MCL 168.615c does not violate Const 1963,
art 4, § 30.
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(M) In addition, MCL 168.615c is not violative of Const 1963, art 2, § 4, which
provides, in part: “The legislature shall enact laws to preserve the purity of elections
. . . .” Plaintiffs argue that § 615c violates the Purity of Elections Clause because only the
two major political parties, having each received “20% of the total vote cast in this state
for the office of president in the last presidential election,” MCL 168.613a(3), at present
qualify to obtain the information gathered under this act. However, as the United States
Supreme Court has recognized, “the States’ interest permits them to enact reasonable
election regulations that may, in practice, favor the traditional two-party system . . . .”
Timmons v Twin Cities Area New Party, 520 US 351, 367 (1997). States have a “strong
interest” in the stability of their political systems and, while they may not enact
“unreasonably exclusionary restrictions,” they “need not remove all of the many hurdles
third parties face in the American political arena today.” Id. See also Buckley, supra at
97-98. Further, it may conceivably be argued that MCL 168.615c, in fact, “preserve[s]
the purity of elections” by preventing so-called “party raiding” “whereby voters in
sympathy with one party designate themselves as voters of another party so as to
influence or determine the results of the other party’s primary,” Rosario v Rockefeller,
410 US 752, 760 (1973).
(N) We agree with plaintiffs that there is standing and that the issues are ripe.
Plaintiff Practical Political Consulting is a political consulting firm whose business will
be directly affected by the fact that, pursuant to MCL 168.615c, a part of the market
research for the two major political parties will be provided to the parties by the state,
and, thus, this plaintiff has standing to challenge § 615c. In addition, the challenges to
this law are ripe because § 615c has been enacted without the assent of two-thirds of both
houses, and if § 615c violates Const 1963, art 4, § 30, the state cannot conduct the
January 15, 2008, presidential primary election because of the nonseverability provision
of 2007 PA 52, enacting § 1.
(O) This order addresses only the question whether MCL 168.615c violates Const
1963, art 2, § 4 and art 4, § 30, the only issues addressed by the lower courts. In
particular, this order does not address the validity of MCL 168.615c under any other
provision of the federal or state constitutions, and it does not address whether MCL
168.615c is inconsistent with any other provision of federal or state law.
CAVANAGH, J., dissents and states as follows:
I would deny leave to appeal because:
A. There is no express public purpose for the granting of access to the lists.
MCL 168.615c states two purposes for the list provision: (1) to ensure compliance with
the state and national political party rules and (2) to support political party activities by
that participating political party. MCL 168.615c(5) and (8). Neither purpose has any
relation to the public interest. The express purposes apply exclusively to the political
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parties, which are concededly private entities. While political parties undoubtedly serve
a public purpose, as do many private entities, the question here is whether this public
appropriation serves a public interest.
It is possible that an incidental benefit would accrue to the public if “support for
or opposition to candidates and ballot proposals,” MCL 168.615c(8), leads to public
discussion or exchange of ideas, as the Court of Appeals dissent assumes it will. But
nothing in the statute ensures this result. Support could take the exclusive form of
financial support. Discourse, if there were any, could be entirely within the particular
party. There is simply no express benefit to the public.
B. Speculation that a benefit may trickle down to the public is not enough. The
Court of Appeals dissent asserts that Advisory Opinion on Constitutionality of 1975 PA
277 (Questions 2 – 10), 396 Mich 465 (1976), “appears” to stand for the proposition that
any public purpose is sufficient for a constitutional appropriation. I believe that this is a
misstatement. Advisory Opinion actually states that “[t]he question is whether society at
large has an interest in having those individuals benefited.” 396 Mich at 496. I read this
as a primary purpose test.
Advisory Opinion does not stand for the proposition that any attendant public
benefit amounts to a public purpose; the benefit must be one that is closely and clearly
related to the welfare of the public to amount to a public purpose. The goals of MCL
168.615c are closely and clearly related to the welfare of the qualifying political parties.
Any benefit to the public is speculative at worst and attenuated at best.
C. The “any public purpose” test of the Court of Appeals dissent is unworkable
and dangerous. If any slight public benefit is sufficient, as the dissent would have it, the
distinction between public and private purpose loses all meaning. As the Court of
Appeals majority observes, appropriating property and funds for a shopping mall
involves some public benefit, if only in increased tax revenues. Adopting the Court of
Appeals dissent’s translation of the public purpose test invites bad consequences for
Michigan citizens in the future.
D. The purposes of MCL 168.615c are inapposite, arguably inimical, to those in
the cases on which the dissent relies. The legislation at issue in Buckley v Valeo, 424
US 1, 91 (1976), public presidential campaign funding, had a public purpose “to reduce
the deleterious influence of large contributions on our political process . . . .” The
legislation at issue in Advisory Opinion, public gubernatorial campaign funding, had a
public purpose “[t]o allow gubernatorial candidates to become less dependent upon
financial support from special-interest groups . . . .” 396 Mich at 497. So both had a
purpose to mitigate the influence of highly funded private entities or special interest
groups.
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The effect of MCL 168.615c appears to be the opposite. It enables increased
funding and influence in particular groups. Significantly, this influence and funding
benefit is not just in the parties themselves; the list may be provided to “another person,
organization, or vendor for the purpose of supporting political party activities by that
participating political party,” in other words, special interest groups. MCL 168.615c(8).
The fact that MCL 168.615c directly benefits not only the parties but unnamed
subgroups somehow loosely connected to the “political party activities” drives a stake
through the heart of any attenuated public purpose as far as I am concerned.
E. Plaintiffs’ contention that the act implicates the “purity of elections” is not
wholly without merit. Const 1963, art 2, § 4 states in part: “The legislature shall enact
laws to preserve the purity of elections, to preserve the secrecy of the ballot, [and] to
guard against abuses of the elective franchise . . . .” The “purity of elections” clause has
been interpreted by this Court to require that “‘any law enacted by the Legislature which
adversely affects the purity of elections is constitutionally infirm.’” Socialist Workers
Party v Secretary of State, 412 Mich 571, 596 (1982), quoting Wells v Kent Co Board of
Election Comm’rs, 382 Mich 112, 123 (1969). “The phrase, ‘purity of elections,’ is one
of large dimensions. It has no single, precise meaning.” Wells, supra at 123. “Although
the ‘purity of elections’ concept has been applied in different factual settings, it
unmistakably requires . . . fairness and evenhandedness in the election laws of this
state.” Socialist Workers, supra at 598. “The touchstone [of Const 1963, art 2, § 4] is
whether the election procedure created affords an unfair advantage to one party or its
candidates over a rival party or its candidates.” Id. at 598-599.
Arguably, supplying a list of voters to secondary vendors of political parties
adversely affects the purity of elections and creates an unfair advantage. Further, it is not
clear to me that the general reasonableness of favoring the two-party system for the
stability of elections applies when the purported good, as the Court of Appeals dissent
suggests, is “‘to assure the unfettered exchange of ideas for the bringing about of political
and social changes desired by the people . . . .’” Monitor Patriot Co v Roy, 401 US 265,
272 (1971) (citation omitted).
Finally, the very idea of supplying lists of voters to private parties, when the
voters must either be on the list or not vote, strikes me as an abuse of the elective
franchise.
For these reasons, I would deny leave to appeal.
KELLY, J., joins the statement of CAVANAGH, J.
WEAVER, J., dissents and states as follows:
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I dissent from the majority of four’s (Chief Justice Taylor, and Justices Corrigan,
Young, and Markman) order reversing the Court of Appeals majority opinion and
generally adopting the flawed dissent. Justice Cavanagh’s dissent has correctly explained
some of the flaws of this Court’s majority of four’s mistaken decision and reasoning.
I would deny leave to appeal because the Court of Appeals correctly held that
2007 PA 52 is unconstitutional because it violates the Michigan Constitution by
appropriating public property for private purposes without the assent of “two-thirds of the
members elected to and serving in each house of the legislature.” Const 1963, art 4, § 30.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 21, 2007 _________________________________________
t1120 Clerk