Longstanding Court Precedent Clearly Supports Putting Voter ID on the Ballot
Policy in Detail
The American Civil Liberties Union (ACLU) and lawyers with Maslon Edelman Borman & Brand recently filed a petition with the Supreme Court of Minnesota to strike the Voter ID constitutional amendment question from the ballot. The petition was filed on behalf of the League of Women Voters Minnesota, Common Cause, Jewish Community Action and five individuals. In their brief they argue: “The ballot question is so fundamentally unfair and misleading that it evades the constitutional requirement to submit the proposed constitutional amendment to a popular vote.”
I do have some empathy for their position, but the law is not on their side.
Back in 2008, I had a similar objection to the Legacy Amendment then on the ballot. That ballot question simply asked whether funding should be dedicated to clean water, conservation, parks and the arts by raising the sales tax. Nothing explained how the funding was to be apportioned and nothing explained that the funding cannot be used to substitute for current funding.
These were important facts. How could they not be on the ballot? How could voters make an informed decision?
However, after some brief legal research, I discovered that I was wasting my time with these questions.
The Legal Requirements for Putting a Question on the Ballot
Two old cases from the turn of the twentieth century clearly show that the Legislature is free to write ballot questions just about however it wants. The only legal standard is that the question “must not be so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit the law to a popular vote.”
In State ex rel. Marr v. Stearns, where this standard was first articulated, the ballot question at issue simply asked, “For taxation of railroad lands. Yes. No.”
By voting yes to this question, voters were enacting a 502 word statute with five sections. Not a problem according to the Court. The question and the resulting statute if the ayes prevailed were included in a public statute, “published with the laws of 1895, and fully advised the electors.”
Thus, even when information traveled at the speed of a horse drawn carriage, the law published in St. Paul was constitutionally adequate to inform voters across the state when the ballot question offered almost nothing. In fact, the Court cited the fact that “there are a large number of important amendments to the constitution which were submitted by a ballot upon which there was no suggestion as to the nature of the amendment.”
Not long after Stearns, another ballot question reached the Supreme Court for review in State v. Duluth & N. M. Railway. The question asked, “For increasing the gross earnings tax of railroad companies from three to four per cent. Yes. No.” The railroad challenging the question claimed it was misleading because the statute applied to all railroads when the question suggests the tax increase applies only to railroads subject to a three percent rate.
After affirming the legal standard articulated in Stearns, the Court further explained: “The courts cannot review the judgment and discretion of the legislature in prescribing the form and substance of the question to be submitted, simply because they may be of the opinion that the question was not phrased in the best or fairest terms.”
The Court then conceded that the question could be written in a simpler and fairer form. Importantly, the Court found that the language did not “indicate a purpose to mislead,” which confirms the importance of showing an intent to evade the constitutional requirement.
All of this convinced me that, despite my wish for a more descriptive ballot question, there was nothing constitutionally wrong with the Legacy Amendment language.
The same should be obvious to those complaining about the Voter ID ballot question. Nonetheless, they have filed their petition with the Minnesota Supreme Court.
Voter ID Petitioners’ Arguments Are Not Supported by the Law
In their petition challenging the Voter ID ballot question, the petitioners make three main arguments, which are all easily overcome.
First, they argue that “[t]he ballot question is unconstitutionally misleading because it states the amendment would require photo identification from ‘all voters,’ when the amendment actually states photo identification is required from those who vote ‘in person.’” There is nothing misleading about “all voters.” Based on the text of the amendment, “all voters voting in person” will need to present photographic identification and those not voting in person will, at the very least, “be subject to a substantially equivalent identity” verification process. Thus, “all voters” will be subject to photographic identification or something substantially equivalent. Photographic identification is the benchmark for equivalency, which makes it perfectly fair to say that “all voters” will be subject to photographic identification. Could the ballot question be more precise? Sure. But the wording does not confuse matters and, more importantly, there is clearly no intent to mislead.
Second, they argue the ballot question is misleading because it omits certain substantive changes that the amendment would make to the constitution. But, according to Stearns, the ballot question could have left out all four “substantive” changes and simply asked something like, “Shall voting requirements be changed. Yes. No.” By including more information, the question goes above and beyond what the Court has previously required. Even if there were some requirement to include each major item in the ballot question, there is only one major item here, which is the requirement that voters present a photographic identification when voting. All of the other components cited in the petition go to support the implementation of Voter ID.
Finally, the petitioners argue that the “legislature unlawfully provided a misleading title for the proposed amendment.” Minnesota statute requires the Secretary of State to “provide an appropriate title for each question” and requires the Attorney General to approve the question. The claim here is that the Legislature is not permitted to specify the title under state law. The statute gives that job to the Secretary of State.
In specifying a title, the Legislature is just following the lead of the 2008 Legislature. The language used to specify the title of the Voter ID amendment is cut and pasted directly from the act proposing the Legacy Amendment. If this is a fatal defect to the Voter ID amendment, then it must also be fatal to the Legacy Amendment. Oddly, the League of Women Voters signed on as petitioners and, thereby, signed on to this argument when they also publicly and enthusiastically supported the Legacy Amendment. If they were to win on this point, the Legacy Amendment may be at risk.
Not that Legacy Amendment boosters should be too worried. The petitioners won’t win on this point. The state constitution puts the Legislature fully in charge of the form and substance of any constitutional amendment. There is no constitutional role for the Secretary of State or the Attorney General in the amendment process and a constitutional allocation of power cannot be amended by statute. As such, the statute is not binding on the Legislature and there’s no need to debate the very debatable language of the statute. Indeed, in Duluth & N. M. Railway, the Court clearly states that one Legislature cannot “bind its successor” in “prescribing the form and substance” of a ballot question.
Ultimately, longstanding Minnesota Supreme Court precedent grants the Legislature broad discretion in proposing a constitutional amendment and nothing in the petitioners’ brief presents the Court with the clear evidence and rationale they would need to justify a dramatic decision to overturn the will of the Legislature.
Though the law might be clear, that is not to say there’s no value in complaining about the current state of the law. Maybe the Minnesota constitution should require more information on a ballot question. Maybe a ballot question should include the language of the amendment in its entirety. Wouldn’t that better guarantee that voters make an informed choice? It might also help avoid legislating via the constitutional amendment process. Few people would read through a 502 word amendment and, at first blush, vote yes.
Maybe I’m on to Minnesota’s next constitutional amendment. How’s this for the ballot question? “For amending the state constitution? Yes. No.”
Peter J. Nelson, J.D. is the Director of Public Policy for Center of the American Experiment in Minneapolis.
 League of Women Voters et al. v. Mark Ritchie (Petitioners’ Petition, May 30, 2012)
 League of Women Voters et al. v. Mark Ritchie (Petitioners’ Brief and Addendum, May 30, 2012)
 2008 Minn. Laws ch. 151.
 State ex rel. Marr v. Stearns, 75 N.W. 210, 214 (Minn. 1898).
 Breza v. Kiffmeyer, Supreme Court of Minnesota, No. A06-1871 (Amicus Curiae Brief of Representative Ron Erhardt, Minnesota Chamber of Commerce, and Minnesota Center for Environmental Advocacy, Oct. 13, 2006)
 Stearns at 214.
 Id. at 215.
 112 N.W. 897 (Minn. 1907).
 Id. at 898.
 League of Women Voters (Petitioners’ Brief and Addendum, May 30, 2012) at 21-24.
 2012 Minn. Laws ch. 167.
 To nitpick over the word “all” is similar to the railroad’s nitpicking over the imprecise reference of a three percent tax rate in the ballot question at issue in Duluth & N. M. Railway.
 Id. at 24-32. The argument identifies three specific provisions of the amendment that were left out of the ballot question, including the “substantially equivalent” verification provision, the requirement of government-issued photo identification, and the requirement for provisional voting.
 Minn. Stat. § 204D.15.
 League of Women Voters Minnesota Capitol Letter, Vol. 34, Iss. 1 (February 22, 2008), available at http://www.inet7.lwvmn.org/CapitolLetter2008_01.pdf. Despite the LWVMN board’s preference for a statutory approach—even the Star Tribune opposed the Legacy Amendment on principle—they took the unusual step to support this constitutional amendment “given the extraordinary circumstances, including the enormous need and the Legislature’s repeated failure to fund clean-up efforts.” Id. at 4
 Minn. Const. Art. IX § 1 ("A majority of the members elected to each house of the legislature may propose amendments to this constitution. Proposed amendments shall be published with the laws passed at the same session and submitted to the people for their approval or rejection at a general election. If a majority of all the electors voting at the election vote to ratify an amendment, it becomes a part of this constitution. If two or more amendments are submitted at the same time, voters shall vote for or against each separately.”).
 Duluth & N.M. Railway at 898.