Claims ballot question fails to clarify impact of move
The national push to require voters to present photo identification at the polls is shaping up to be as much a windfall for lawyers in Minnesota as it has been elsewhere. In several states the issue has spilled over from the Legislature to the courtroom as the sides sparred over the law’s constitutionality. Now that Minnesota’s Legislature has forwarded voter ID to the November ballot as a constitutional amendment, the ballot initiative is being challenged in the Minnesota Supreme Court.
The lawsuit was filed by a handful of government watchdog groups, including Common Cause Minnesota and the League of Women Voters. The Supreme Court has put the matter on an expedited track with oral arguments scheduled for July 17.
But the lawsuit isn’t making the usual challenges to the law’s constitutionality that have been waged in states like Wisconsin and Indiana. That would be premature, because Minnesota voters haven’t had their say on the ballot question yet. Instead the opponents of voter ID are making a seemingly technical argument that the ballot question that voters will read and decide upon in the voting booth doesn’t square with the language that’s proposed to be added to the Minnesota Constitution.
Mike Dean, the executive director of Common Cause Minnesota, said the 104-word amendment changes state election law in ways that aren’t reflected in the 33 words that make up the ballot question.
“That question is supposed be reflective of the amendment that’s to be placed in the Constitution,” Dean said. “We’re essentially arguing that’s not the case and that they’re leaving out key sections of the constitutional amendment such as provisional balloting, essentially ending same-day registration, that have an impact on Minnesota’s election system and they’re essentially not disclosing that in the question.”
Nationally known lawyer J. Christian Adams, who formerly was chief of the voting division of the U.S. Department of Justice, is representing Minnesota Majority, which lobbied lawmakers to pass the photo ID legislation. He said the ballot question is clear on the purpose of the amendment: to give Minnesotans an up-or-down say on requiring a picture ID when they vote.
“The lawsuit is attempting to characterize the plain and obvious as confusing,” Adams said. “The proposed amendment says should Minnesota have a photo-identification requirement? There’s nothing mysterious or camouflaged about the language of the proposed amendment.”
A constitutional amendment must pass the Legislature before it appears on the ballot, and Minnesota hasn’t seen a high volume of constitutional amendments as a result of that hurdle. The relative infrequency of ballot issues in Minnesota, compared with states like California and Ohio that allow initiative and referendum, means that state case law around ballot issues is rather scant, Dean said.
“I think we have a strong case,” Dean said. “But there isn’t a huge amount of precedent around these issues. It’s going to be a challenge because it’s a new area for the court to deal with. This will set a huge precedent for the future in how much leeway the Legislature has in drafting these questions.”
Not all states have tried to enact their photo ID requirement as a constitutional amendment. Republicans in the Gopher State, however, opted for the ballot initiative after Gov. Mark Dayton vetoed a bill in 2011 that sought to enact photo ID in state statute. The constitutional amendment proved to be the logical next step for the GOP because amendment bills bypass Dayton and go straight to voters.
While states with initiative and referendum frequently play host to pitched battles over the wording of ballot questions, election law professors observe that there’s only one other recent example of a ballot challenge in which photo ID was the topic. That came in Missouri, where the state Supreme Court in March found the wording of the ballot question to be inexact and sent it back to the state General Assembly for retooling. Rick Hasen, a law professor at the University of California-Irvine, said the circumstances around the photo ID amendment proposal in the two states have important differences.
“The situation in Minnesota is somewhat different than in Missouri,” Hasen said. “The situation in Missouri is that that was a reaction to the state Supreme Court holding that the state Constitution would be violated by a voter ID law, while the problem in Minnesota is a problem that Republicans and Democrats can’t agree on a statute that would establish voter ID. They are different questions.”
As passed by the Legislature, Minnesota voters will be asked: “Shall the Minnesota Constitution be amended to require all voters to present valid photo identification to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?”
Dean is asking the high court to stop the amendment because it makes some references that he contends aren’t mentioned in the ballot question. The amendment calls for a “substantially equivalent” form of voter identification and verification. That has led critics to question how absentee voters and military personnel serving overseas will vote. The call for provisional ballots has spawned charges that the photo ID proposal will end the state’s same-day registration as it currently exists.
Adams, however, said Dean and the other petitioners are basing their case on so-called error and omission law. He said error and omission law only applies in obvious situations, such as when a name is misprinted on the ballot. The Legislature will be able to address the details if and when the amendment passes.
“A lot of this is up to the Legislature after the amendment passes,” Adams said. “On November 7 it does not mean even if the amendment passes that instantaneously you have voter ID in Minnesota. The Legislature still has work to do. That’s where some of the details get ironed out.”
But Dean said it won’t be possible for the Legislature to act on things that are enshrined in the Constitution.
“There are so many details where they’ve said: We’ll put it in the enabling legislation,” he noted. “Why didn’t they put the provisional ballot component in the enabling legislation? The reason was because they want to hamstring the Legislature in the future to require these processes that I think a lot of people soundly rejected as a bad idea. That’s why it goes beyond just photo ID. They could have a clean constitutional amendment that didn’t mention those things.”
The political division between the Legislature, which is controlled by Republicans, and the four elected constitutional officer positions, which are all held by DFLers, is causing some major friction about the lawsuit. Secretary of State Mark Ritchie was named as a respondent in the suit, and Attorney General Lori Swanson is charged with defending the state. Supporters of the photo ID amendment, who object because Ritchie and Swanson are both Democrats, have filed to intervene in the matter.
Dan McGrath, the head of Minnesota Majority, said Ritchie’s involvement creates the appearance of a conflict of interest because he lobbied the Legislature against photo ID. Republicans in the Legislature are getting into the fray, too. The Legislative Coordinating Commission, which is chaired by Senate President Michelle Fischbach, R-Paynesville, will meet on Thursday to act on a resolution to hire outside counsel for the photo ID litigation.
Dan Smith, a political science professor at the University of Florida who studies ballot initiatives, said activists commonly object to the presence of administrative figures like attorneys general when they play a major role in litigation but are from the other side of the aisle.
“I wouldn’t be surprised at all to see the proponents of this legislation try to become interveners because they’re not convinced about … the attorney general in terms of defending the legislation [and they want] to hold them in check,” Smith said.