JDs Rising

The campaigns regarding the Minnesota Voter ID Amendment have been heated. Supporters assert they are just protecting the vote. Does Minnesota have a legitimate interest in protecting the vote? Yes, it does. But is there really a voter fraud problem? No, there is not.

And, perhaps most importantly, are there better ways of preventing voter fraud? Yes, there are. Instead of requiring a state-issued ID, you could require a notarized letter. The state can offer the notary services for free in their offices, so that all eligible voters in Minnesota have the equal opportunity to sign up. That will address the concerns that deceased citizens will vote or that felons will vote.

So the logical question is then: why are we trying to push a more restrictive amendment provision that raises many legal issues and possibly discriminatory effects?  First, we must look at the actual Minnesota Amendment bill.

In plain language, the Voter ID amendment ballot question enacted by H.F. No. 2378 requires all voters to (1) show a government-issued photographic identification, while (2) it provides the state will issue free photographic identifications, and (3) if a voter does not have a valid ID then the voter will cast a “provisional ballot” which will not be counted as a vote in the election until after the voter shows the state a valid ID.

So as Minnesota voters consider whether to support or oppose the Voter ID amendment that appears on Tuesday’s ballot, it’s important to first understand current law. It also is important to keep in mind that voting is a constitutional right. It is not like applying for a hunting license, a gun license, and so on.

Current Minnesota Requirements

In order to vote in Minnesota, eligible voters must be Minnesota residents, citizens and at least 18 years old. If an eligible voter wants to register on election day, they can do so (which helps to explain why the state frequently has been first in the nation in voter turnout). The following are the accepted documents used to establish proof of residency:

• State-issued ID (such as a driver’s license, permit, ID card, or receipt of these);
• Photo IDs (driver license, ID card, passport, military ID card, tribal ID card, student ID card) and a utility bill with current address if not on the ID;
• Valid registration in the same precinct with a different name or address;
• Notice of late registration; or
• Confirmation by a residential facility employee of your address signed under oath.

Supporters of the amendment aren’t satisfied with those requirements. But have they considered the legal issues that a stricter ID requirement could create?

Ambiguity Of The Amendment.  The amendment is vague. Who really knows what the legislature will decide to do with it? For example, what will be the procedure for absentee voters? The language of the amendment clearly provides that “before receiving a ballot” all voters must present a valid government-issued ID. Is the state going to mandate that all eligible voters who want to vote absentee must go to an election office to show their ID?  Is this burden on eligible voters going to dissuade Minnesota residents from voting?

Another example is the language regarding provisional ballots. Voters without a valid ID will be given a “provisional ballot,” which will not be counted as a vote in the election until the voter “certifies” the provisional ballot. How can a voter “certify” a provisional ballot? What does the “certification” process look like? Will a voter have to get a state-issued ID after voting? Is the certification process simply a statement under oath? If so, why can’t all new voters registering just provide a statement under oath?

Disenfranchisement Of Minorities. Once upon a time – and I may add, not too long ago – the United States prohibited women and African Americans from voting. Even after the 15^th and 19^th Amendments were passed, guaranteeing those rights for the first time, governments disenfranchised those voters by implementing poll taxes. If you wanted to vote, you had to have enough money to vote. The intended effect was, of course, that if you were a minority and not wealthy, the likelihood you would be able to vote was pretty much nil. In fact, the poll tax even survived a legal challenge in the U.S. Supreme Court.

As discussed previously, the Minnesota Voter ID Amendment could disenfranchise poor and minority voters. Disenfranchising minorities from voting, or in other words discriminating against minorities, runs against the law. Take for example, Texas:

In State of Texas v. Eric H. Holder, Jr., 12-CV-128 (D.C. Dist. 2012), a panel of three federal judges struck down the Texas Voter ID laws because they were “discriminatory” against African Americans and Hispanics. The unanimous decision by the panel ruled that Texas failed to show that the statute would not harm the voting rights of minorities in the State.

Nullification of your vote due to provisional ballots. If you are a voter who does not have a valid ID, the casting of a “provisional ballot” will not count as a vote in the election.  The amendment provides that before your vote is counted, you must “certify” the provisional ballot. The provisional ballot raises many issues.

How will Minnesota turnout be affected by provisional ballots on Election Day? If the provisional ballot means Minnesota residents’ votes will not be counted unless “certified” – whatever that means – will eligible voters still show up?

What will the process be for “certifying” provisional ballots? The certification process is highly troubling. In Pennsylvania, a Commonwealth Court judge issued a preliminary injunction against the Pennsylvania Voter ID law because providing that a provisional ballot would only count if within 6 days the voter produced an ID was insufficient. As the Judge explained, provisional ballots in Pennsylvania would have created two classes of voters in the State.

Further, depending on requirements, these votes might just never be certified.

I may add that absentee ballots are already a problem in Minnesota. Generally, not all absentee ballots are counted in the election.

“Yet votes cast by mail are less likely to be counted, more likely to be compromised and more likely to be contested than those cast in a voting booth, statistics show. Election officials reject almost 2 percent of ballots cast by mail, double the rate for in-person voting.”

What will the bleeding effect be in these new provisional ballots that now have to undergo a potentially burdensome process of “certification”?

Nullification of your vote due to identifying information on absentee ballot. Some supporters of the Minnesota Voter ID Amendment have suggested that voters can just vote absentee. However, this is inaccurate given Minnesota laws. In Minnesota, eligible voters may only vote absentee in very specific situations:

• Absence from your precinct;
• Illness or disability;
• Serving as an election judge in another precinct;
• Religious discipline or observance of religious holiday’; and
• Eligible emergency declared by Governor or quarantine declared by federal or State government.

Another issue is how to show a valid state-issued ID when you are voting absentee.  According to the amendment, in order to get a ballot, you must present a valid state-issued ID.  Currently, in order to get an absentee ballot, eligible voters must complete an Absentee Ballot Application and submit it via mail, fax or email; or simply vote at the clerk’s office starting 46 days prior to election day.

Taking a step back in absentee ballots will significantly hinder the likelihood a vote will be counted in the election. Consider the success of absentee ballots in 2010 given new legislation addressing absentee ballots. The Minnesota Secretary of State released statistics in 2010 stating that the reason why “the success rate of military and overseas voters improved greatly” was because voters were able to print out their ballots electronically and mail them.  Given new legislation in 2010 that “fundamentally altered the way that absentee ballots are processed in Minnesota,” the success rate of all absentee ballots increased to 97 percent.

Adding a significant hurdle to absentee ballots – by requiring a valid state-issued ID in order to get a ballot – will impair both the ability of voters to get ballots and the likelihood these ballots will be counted.

One idea floated by supporters of the amendment would have have absentee voters mark up their ballots by providing their Minnesota-issued ID. It is important to note that providing any identifying information on a ballot will render your ballot void.

Minnesota law states that a ballot will be deemed invalid if a voter writes anything on the ballot that may identify who the voter is. The idea is that a voter should have the guarantee that their vote remains secret in order to prevent voter coercion. So if you have to provide identification information on the ballot as an absentee voter, a lot of absentee votes will be thinking, “what’s the point of voting when your vote will be wasted?”

Ultimately, what path Minnesota takes will rest on its voters this upcoming election.