The Messy History of Michigan’s “Purity Clause”

Abstract

So it’s worth asking: What does the Purity Clause actually mean? Can contemporary courts properly invoke it to justify restrictions purportedly aimed at controlling “voter fraud”? Should they? Part I diagnoses the problem: Recently, Michigan courts have invoked the Purity Clause to legitimize voting rights restrictions without applying their usual tools of constitutional interpretation or scrutinizing the Clause’s complex history. As a result, voting restrictions have been justified by reference to a badly underexamined constitutional provision. Part II examines the Clause with the tools that Michigan courts use to interpret the state constitution. This Part argues that neither the original public meaning nor the framers’ intent justifies a narrow reading of the Clause as entirely about laws restricting “voter fraud” in the contemporary, politicized sense of the term. In fact, the Clause seems to have been intended to bar voting not by facially unqualified people but by otherwise qualified voters who were ostensibly infected by the “wrong” motives—and it was likely originally understood as a racial restriction. Part III looks at the Clause’s evolution since 1850—in its 1908 and 1963 reenactments and as applied by the courts—and argues that, to the extent the Clause is still relevant, it demands a broader understanding than recent court decisions have allowed. I conclude that the Purity Clause should no longer be applied to counterbalance or outweigh the federal and state constitutions’ guarantee of the right to vote.