Finding The Right Words

The voter ID battle occupies the courtroom as well as the ballot.

Why are Minnesota’s legislators so worked up about voter fraud? The Republicans proposed a constitutional amendment they say will reduce voter fraud; the Democrats say it’s a fix for a problem that doesn’t even exist. The real problem might end up being what the “solution” costs taxpayers: $32 million in start-up costs for the state and $24 million for the counties, according to the Secretary of State’s office.

Following the pattern of the Republican-Democratic playbook of the last few years, the legislators failed to do what legislators are paid to do—solve the problem in the Legislature—and instead pushed the burden forward: Republicans to the ballot, with a voter ID amendment, the Democrats to the courtroom, with several legal challenges to that amendment. As of press time, we don’t know how the amendment fared at the polls, but the court challenges fell flat.

There were so many lawsuits around this amendment and so many parties to those suits that it could be seen as a jobs program for lawyers. Suits were brought (or supported) by the American Civil Liberties Union of Minnesota, Minnesota Majority, the City of St. Paul, the League of Women Voters (LWV), and several other groups. Two suits were fought before the Minnesota Supreme Court, and one additional suit was tried in front of a federal judge. None of them were successful.

The first suit was an attempt to change the state’s popular system of Election Day voter registration, used by more than 540,000 voters in the 2008 presidential election. That suit, which was filed by the Minnesota Voters Alliance and others, challenged not only current Election Day registration but voting rights for disabled people who are under court-ordered guardianships. U.S. District Judge Donovan Frank dismissed the suit last August, saying it was “based on the erroneous premise that election officials must verify voters’ eligibility before their votes are counted.” Attorney Erick Kaardal represented the plaintiffs and has appealed the decision.

The second major suit, brought by the LWV, the ACLU-Minnesota, and several other groups, sought to take the amendment off the ballot altogether. The suit claimed that the amendment’s title on the ballot and the language of the amendment itself did not adequately describe what the law would do. Chuck Samuelson, executive director of ACLU-Minnesota, told the Supreme Court that the amendment was vague, misleading, and had stealth provisions not even hinted at in the amendment’s description. Samuelson said the amendment failed to mention such major systemic changes as a new provisional ballot system or the potential end of same-day registration. Attorney Bill Pentelovitch of the Maslon Edelman law firm added that the amendment doesn’t clarify who needs to show an ID to vote and who gets a free ID.

Republican defenders of the amendment noted that previous constitutional amendments with only very brief or no ballot descriptions were not challenged by Democrats. The Supreme Court turned down the request to keep the amendment off the ballot, saying, “The proper role for the judiciary . . . is not to second-guess the wisdom of policy decisions that the constitution commits to one of the political branches.”

A third suit focused on who was responsible for naming the amendment as it would appear on the ballot. Secretary of State Mark Ritchie claimed that right was his, though his renaming of the ballot from the Legislature’s original “Photo identification required for voting,” to “Changes to in-person & absentee voting & voter registration; provisional ballots,” was not exactly an exercise in clarity.

Ritchie had a precedent on his side: A Minnesota law, first enacted in 1919, says, “The secretary of state shall provide an appropriate title” for every question on the ballot. Still, traditionally the Legislature has provided names for ballot amendments and the court decided in its favor.

Meanwhile, the amendment remains unclear in many respects. What exactly is a “valid government issued photo ID?” Precisely how will the complicated new system of “provisional voting” be put into practice? How will the amendment’s “substantially equivalent identity and eligibility” requirements affect the Election Day registration system? Regardless, attorney jobs are safe. Carolyn Jackson, lobbying coordinator with the American Civil Liberties Union of Minnesota, warns in an article on that if the photo ID amendment becomes law, it will create a “cottage industry of voting lawsuits.”