Perry on The Messy History of Michigan’s Purity Clause @Jaryehperry @michlawreview

Joshua Perry is publishing The Messy History of Michigan’s Purity Clause in the Michigan Law Review Online. Here is the abstract.

Since 1850, Michigan’s constitution has authorized the state legislature to pass laws protecting “the purity of elections.” Despite its racial resonance and emergence from a constitutional convention that proudly denied Black Michiganders the vote, the “Purity Clause” has recently been cited by state courts to legitimize anti-“voter fraud” laws – like the state’s voter ID law – that constrict voting rights and disproportionately disenfranchise voters of color.

It’s true that, in the years surrounding Michigan’s founding, the concept of protecting election “purity” seems to have extended to excluding unlawful voters. But there is strong evidence that the Purity Clause was intended and understood to include three other meanings, in 1850 and thereafter. First: The record of the 1850 constitutional convention shows that the Clause was enacted as a way of preventing the right people – people who were otherwise eligible to vote – from voting for the wrong reasons. It was aimed at people who “wager” on elections, and the “intoxicated,” and at the “insane.” Like today’s voter suppression laws, in other words, it was really a way of controlling election outcomes by limiting who votes. Second: To the (white) voters who ratified the 1850 constitution, election “purity” likely signified racist exclusion. Neither of Michigan’s subsequent constitutional conventions, in reenacting the clause, have grappled with this original public meaning, which remains encoded in the persistent language of “purity.” Third: Alongside its uglier meanings, the Purity Clause has long been applied by the courts to mandate equal treatment at the polls for politically-disfavored individuals and groups.

The account in this essay shows why Michigan courts should (at a minimum) hesitate and inquire far more deeply before invoking the Clause in future voting rights litigation – including in the brewing fight over a voter suppression initiative that seems likely to become law this year.

Download the text of the essay from SSRN at the link.