Similar recent actions in Wisconsin and Missouri have faced legal challenges
Even as Republicans in the Minnesota Legislature were advancing a voter ID constitutional amendment on to the November ballot last week, DFLers were predicting court challenges.
In 2011 Republicans passed a statutory photo ID requirement in both chambers, but their bill was vetoed by Gov. Mark Dayton. This year the GOP-controlled House and Senate regrouped to pass the measure as a ballot question shortly before the Easter/Passover recess. The constitutional route, if successful, carries the twin benefits of bypassing Dayton and codifying the policy in a way that’s very difficult to reverse.
Legal challenges are nothing new in states that have advanced voter ID proposals. The U.S. Supreme Court has upheld a photo ID law in Indiana. In other states — most recently, Wisconsin and Missouri — voter ID has stumbled in the courts for different reasons.
One group that’s mulling legal action is Common Cause Minnesota. The Minneapolis-based election and campaign finance watchdog’s executive director, Mike Dean, declined to talk about legal strategy or whether his group would take the lead in filing suit. But he said he expects the ballot question will be challenged in court.
“What I can tell you is we believe the question is deceptive and misleading to voters,” Dean said.
Any challenges based on people’s voting rights probably could not occur unless voters pass the ballot measure, said Jennie Bowser, a senior fellow at the National Conference of State Legislatures. At this stage, plaintiffs would have to argue that the ballot question being presented to voters is technically flawed.
“Completely separate from voter ID and its constitutionality or lack thereof, in the world of ballot measures, this [approach] is a very common tactic,” Bowser said. “Courts are generally not willing to consider the constitutionality of a proposed policy until it is policy. They don’t usually weigh in on things that are on the ballot but haven’t been voted on yet.”
That’s where the legal fight in Missouri stands. As in Minnesota, Missouri legislators saw a photo ID bill vetoed by Gov. Jay Nixon in 2011. Missouri legislators then took the tack of asking the public if a photo ID requirement should be authorized in statute. A judge ruled late last month that the ballot question was “unfair and insufficient” and needed to be reworked by the state’s Legislature before it could be submitted to voters.
Opponents of photo ID in Minnesota are raising objections to the summary that the Legislature has submitted for voters to read and vote on. Rep. Ryan Winkler, DFL-Golden Valley, said the ballot question omits significant information about the effect the amendment would have on related issues.
“It doesn’t say anything about absentee voting or same-day registration,” Winkler noted, “both of which are implicated in the substantially equivalent provision.” (“Substantially equivalent” identification is the term the legislation uses to describe the documentation that all voters must provide whether they are voting in person or not.)
Winkler also said the question does not explain that same-day registrants will need to have their identities confirmed after the election rather than accepted as an oath on Election Day.
“So essentially you’re creating a provisional ballot for same-day registrants,” Winkler said. “That upends a whole section of election law that people have relied on for a long time.”
Kiffmeyer defends bill
“That’s just more spin,” said Rep. Mary Kiffmeyer, R-Big Lake, the bill’s chief sponsor in the House. “The constitutional amendment doesn’t say anything about it because tangentially, you could say, the whole 12 chapters of election law might be affected by photo ID … But as we clearly said during our debate on the House floor, same-day registration now includes photo ID; it doesn’t do away with it. Absentee voting includes substantially equivalent ID, as on Election Day.”
If the ballot question is unsuccessfully challenged in the courts and is passed by voters, other challenges could lie ahead, said Richard Hasen, a law professor at the University of California-Irvine who is the author of the forthcoming book “The Voting Wars: From Florida 2000 to the Next Election Meltdown.” He points out that opponents would be unable to base their challenge on the state Constitution if photo ID is amended into it. That would skirt the problem that voter ID proponents are experiencing in Wisconsin, where two judges have issued injunctions concerning photo ID legislation signed by Gov. Scott Walker on the grounds that it violates the state’s Constitution.
But, said Hasen, “There would be other questions. There could be questions of violating federal law — either federal constitutional law or the Voting Rights Act. And further, you could have challenges to the meaning of terms in the measure. For example, if it says you can only use government identification without defining the term government identification, which was in the iterations in the Minnesota [bill], you could have litigation over what that term means.”
Kiffmeyer modeled her legislation on a state whose photo ID legislation was upheld by the U.S. Supreme Court: Indiana.
The Indiana case passed muster because it guaranteed free IDs and required voter education. Kiffmeyer said the effective date of the Minnesota photo ID legislation was delayed to July 1, 2013, to allow for time for lawmakers to fund voter education and IDs in the 2013 session, if voters approve the amendment.
One difference between the Indiana and Minnesota proposals, however, involves the groups of people who are exempt from the photo ID law. The Indiana law contained exemptions for elderly people in nursing homes and people who object to being photographed for religious reasons. Minnesota’s amendment doesn’t contain any exemptions.
The fact that Minnesota’s amendment doesn’t mention exceptions makes it very different from Indiana, said Dean of Common Cause.
“For those who argue that this is based off of Indiana, and Indiana was held to be constitutional, thus ours can be held constitutional — [that] is a complete fallacy,” Dean said.