ST. PAUL - Minnesota Supreme Court justices are considering whether a question about voter photo identification on the Nov. 6 ballot is misleading.
More fundamentally, they are asking themselves if they even have the authority to deal with the issue.
The question is whether a proposed amendment requiring Minnesotans to present photographic identification before voting is accurately summarized on the ballot. The League of Women Voters, Common Cause and others say the court should remove the amendment from the ballot because the Legislature-approved summary would mislead voters.
During a Tuesday hearing, six justices hearing the case (Justice Helen Meyer is retiring and is not taking part) asked pointed questions to attorneys on both sides.
A decision is expected before late August to give election officials time to revise the ballot if needed.
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In the meantime, legislative backers of the amendment said Tuesday they plan a lawsuit of their own, asking the court to reject a title Secretary of State Mark Ritchie has assigned the ballot question. Sen. Scott Newman, R-Hutchinson, and Rep. Marry Kiffmeyer, R-Big Lake, say only the Legislature has that power. A similar suit already is under way, and set for a July 31 high court hearing, over a title Ritchie rewrote for a second amendment proposal voters are to decide this fall. That amendment would define marriage as between a man and a woman.
Attorney Bill Pentelovitch told justices Tuesday that they have a duty to cancel the photo ID vote because the question on the ballot "would mislead a voter of common intelligence."
He said the summary does not tell voters that requiring a photo ID would require "provisional ballots." Those are ballots cast by people without a photo ID that would be set aside and not counted until the voters produce a photo ID.
Provisional balloting never has been used in Minnesota, although it does exist in other states. Pentelovitch also said the amendment basically would eliminate same-day voter registration and make other changes to the Minnesota election system that voters would not know by reading their ballots.
Attorney Tom Boyd, representing the Republican-controlled Legislature, told the justices that the question was not misleading, but in any case they have no authority to stop the public vote. Voters can read the full amendment and make up their minds, he said.
However, Boyd did offer justices a way out. In answering a question, he said that if the justices ordered the entire proposed amendment printed on the ballot, that would be the least objectionable change they could make.
Justice Paul Anderson told Pentelovitch that past cases he cited in arguments may not apply.
"I think you are looking at a blanker slate than you may think," Anderson said, indicating justices never have ruled on a similar case.
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Anderson said the case is important: "It doesn't get much bigger than this."
Justice Alan Page said that while the wording voters would see says everyone would need to show a photo ID, that may not be the case. The full proposed amendment indicates that absentee voters would be held to "substantially equivalent" standards, which the justice said might not be a photo ID.
During legislative hearings, the "substantially equivalent" phrase was adopted because some lawmakers said military members and other absentee voters may not be able to produce a photo ID in person.
Boyd said he could not say what "substantially equivalent" means because that would be decided by next year's Legislature if the amendment passes Nov. 6.
Anderson and Justice David Stras said the state Constitution makes it clear that a proposed amendment must go to a public vote if the Legislature properly passes it, and there is no evidence lawmakers did anything improper in approving the amendment.
Pentelovitch, however, argued that the justices must consider a misleading amendment. "You are the traffic cops."
Anderson asked, "Don't people have a right to vote on something that is not deceptive?" Boyd shot back his argument that only the Legislature can decide constitutional amendments.
Page wondered out loud if the ballot question is "bait and switch" to gloss over election system changes the amendment could bring.
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Proposed constitutional amendment:
"All voters voting in person must present valid government-issued photographic identification before receiving a ballot. The state must issue photographic identification at no charge to an eligible voter who does not have a form of identification meeting the requirements of this section. A voter unable to present government-issued photographic identification must be permitted to submit a provisional ballot. A provisional ballot must only be counted if the voter certifies the provisional ballot in the manner provided by law.
"All voters, including those not voting in person, must be subject to substantially equivalent identity and eligibility verification prior to a ballot being cast or counted."
This is the language voters would see on their Nov. 6 ballots:
"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?"
Don Davis is the Capitol reporter for Forum Communications
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