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Why sloppy drafting will kill the photo-ID amendment

David SchultzDavid Schultz

Whatever the merits of the Minnesota voter photo-identification amendment, chances are that it provisions will not take effect soon, if at all, even if adopted by voters this November.

The reason is not that it is a bad bill, which it is, or that it will do little to combat the virtually nonexistent in-person voter fraud in the state, which is also the case. Instead, the amendment's authors did such a horrible job of drafting it that either the Minnesota political process or the courts will prevent it from ever going into effect.

Criticism of the voter-ID amendment has centered on the issues of fraud, disfranchisement and cost. Critics contend that it is a solution in search of a problem. Two major recounts have demonstrated that in-person voter fraud is de minimis and that what little that does exist will not be remedied by photo identification.

Additionally, the argument is that the photo-ID requirements will disenfranchise many populations, such as the elderly, students, the poor, and people of color.

Finally, critics assert that the photo ID will cost the state and local governments millions to administer, while also inflicting personal costs on individuals. All these are valid criticisms, but none of these speaks to the problems with the amendment that will prevent it from going into effect.

The single-subject rule

Assume the voter-ID amendment does pass this November, what then? The first major defect is that it violates the single-subject rule. Article IV, section 17 of the Minnesota Constitution states: "No law shall embrace more than one subject, which shall be expressed in its title." Minnesota, similar to what is found in approximately 40 other states, mandates that a specific bill or law include only one subject. This rule also applies to constitutional amendments in Minnesota.

Courts across the country have taken an aggressive position in recent years applying the single-subject rule, especially to ballot propositions and constitutional amendments, to invalidate measures voted on by the people. The reason is simple: Voters should not be forced to vote yes or no on ballot propositions that contain more than one subject, especially if they object to one of the provisions. Imagine a constitutional amendment asking voters "Should the mosquito be named the state insect and abortion banned?" I may oppose abortion or dislike mosquitos and forcing a yes or no on the entire proposition makes it difficult for voters to express their true preferences.

Consider the voter ID proposal language put before the voters: "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?" This ballot question has two subjects: One refers to presentation of a valid photo ID and the other to requiring the state to provide free identification.  Conceivably, a voter could favor presentation of voter photo ID but not providing free identification, or vice versa. 

In the last few years in cases such as Unity Church of State Paul v. Minnesota (2004), and Associated Builders and Contractors v. Ventura (2000), the Minnesota courts have aggressively enforced the single-subject rule, and there is no reason to think they will not do so here. Thus, even if the voters approve this amendment, it is likely the amendment  falls to the single-subject rule.

But backers of the amendment were stuck. Courts across the country have invalided voter identification bills under state or federal constitutional clauses because they did not provide for free identifications. This happened, for example, in Georgia. Voter-ID supporters thus had to attach this provision to the constitutional amendment. Were this ordinary legislation maybe the free ID would have survived single-subject, but as a constitutional amendment it creates problems for voters in making their choices.

The enabling problem

Again assume voter ID passes this November. The amendment requires additional enabling legislation to go into effect. Unless the Republicans obtain veto-override majorities, Gov. Mark Dayton can simply veto any enabling legislation, rendering the voter ID amendment unenforceable. Assume the DFL takes back one house of the Legislature; it can refuse to act. In either case, the amendment is dead. Assume the DFL takes back both houses; then either the Legislature does nothing or it enacts  enabling legislation so watered-down that it meaningless.

GOP Rep. Mary Kiffmeyer contends no enabling legislation is needed, since the constitutional amendment is self-executing or self-enforcing. She is wrong.

First, in Freeman v. Goff (1939) the Minnesota Supreme Court stated that constitutional provisions are presumed directory or mandatory. The presumption is that they must be enforced as described in the amendment unless there are other reasons to think not. But the voter-ID amendment cannot be enforced as written without enabling legislation explaining critical terms such as what constitutes a "valid" photo identification. The vagueness of this word dooms enforcement, leaves public officials open to charges of abuse of discretion, and raises potential due-process and equal-protection violations if they simply try to enforce the requirements as written.

The precedents

More important, repeatedly Minnesota courts have long declared in cases such as  Willis v. St. Paul Sanitation Co. (1892), State v. Kiewell (1902), State v. McColl (1914), Aase v. Langston (1928),  Payne v. Lee (1946), and In re Wretlind (1948) that: "Prohibitive clauses of the constitution such as the due process clause are self-executing and require no legislation for their enforcement."

By that, generally Bill of Rights provisions that limit the state and protect individual liberties are self-enforcing, whereas provisions that direct the state to do something require enabling legislation. In the case of the voter-ID amendment, at the very least the state is required to provide free identifications, necessitating enabling legislation defining what is considered a valid ID and how it will be distributed.  The same is true when it comes to the first part of the amendment, requiring presentation of a "valid" photo identification. Again, what constitutes valid? This, too, requires enabling legislation to clarify and implement.

Overall, the potential political landscape after the November elections, as well as firmly entrenched state and federal constitutional principles, are enough to bog down and prevent enforcement of the voter-ID amendment for years even if it does pass this November. Millions of dollars will be wasted on this amendment in an effort to pass, defeat, and litigate it, and taxpayers will be angry no matter the result. 

When that happens, supporters of the amendment can blame themselves and the authors of it for sloppy drafting that doomed the amendment from the start.

David Schultz is a professor at Hamline University School of Business, where he teaches classes on privatization and public, private and nonprofit partnerships. He is the editor of the Journal of Public Affairs Education (JPAE). Schultz blogs at Schultz's Take.

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Comments (36)

A question

Under the subject of "enabling legislation", you're saying that even if this amendment passes, an uncooperative Governor and/or legislature can render it essentially dead.

So my question is this: What if the amendment passes but the DFL regains power in the legislature and the amendment is left to languish. So far, so good.

But what if at a FUTURE date the GOP regains power. Are they then able to revive it and put it back into play? If passed by the voters, does it remain a threat until and unless it is actually repealed? Or does it lose legitimacy if time passes without its implementation?

Thanks for helping to clarify this.

Regarding the single-subject rule

1998
"Shall the Minnesota Constitution be amended to extend to the year 2025 the dedication of lottery proceeds to the environment and natural resources trust fund AND TO maximize the long-term total return to the fund? "

also in 1998
"Shall the Minnesota Constitution be amended to affirm that hunting and fishing and the taking of game and fish are a valued part of our heritage that shall be forever preserved for the people AND shall be managed by law and regulation for the public good?

It's true that "and" means "and" because what if you agreed with one half of the amendment but not the other? I agreed that hunting and fishing are a valued part of our heritage that shall be forever preserved for the people, but I disagreed that it should be managed by government.

So it seems that the single-subject rule hasn't stopped other constitutional amendments from being placed on the ballot.

And some critics have actually said that the Voter ID amendment language is too vague and needs to be more specific. Well how about this 1875 amendment to prescribe the manner in which school funds could be invested:

"The voters voting in favor of such amendment ... the following words: " Amendment to section two, article eight, of the constitution, yes;" ... and the ballots used by those voting against, shall have the following words: "Amendment to section two, article eight, of the constitution, no."

I suggest you buy a time

I suggest you buy a time machine and go back to challenge those amendments.....

What's done is done.

But seriously, when it is likely that there will be significant objection to an amendment, it behooves the writers to know what legal hurdles the amendments should clear. It is indeed "amateur hour" if no one bothers to examine the grounds on which other similar amendments are being challenged, or be bothered with the basic requirements for an amendment in your constitution.

After all, this IS the era of Google and we are a nation of laws.

And . . .

The use of the conjunctive does not mean that a ballot question embraces more than one subject. Dedication of lottery proceeds to a trust fund is not a different subject from maximizing the returns to that fund. Preserving hunting and fishing for the people seems to imply that it would be managed by law and regulation (as opposed to allowing it to proceed without restriction).

As far as the 1875 amendment goes, all I can say is that we've come a long way since then.

Legal Analysis Fail

Dennis, the mere use of the word "and" in ballot questions does not violate the single subject rule. Neither of your examples contains multiple subjects. I understand your argument on the hunting amendment, but you are reading more into it than is there - the language is so vague and meaningless, that the amendment doesn't really say anything at all. The voter ID amendment has two concrete and distinct issues, which is why it may get tossed.

Were either of those 1998

Were either of those 1998 questions subject to the level of litigation that Voter ID certainly will be?

There's a lot more than just two components

Actually, if this amendment were written to describe the actual effects it would ask: "Shall every voter be required to present a valid state issued ID, and should same day registration be replaced by provisional ballots, and should vouching be eliminated, and should free ID be issued to those who cannot afford IDs?" The question on the ballot doesn't come close to describing the actual changes to the constitution being sought.

Again, I just have to say, it really all comes down to a bunch of Republicans that don't understand the difference between normal legislation and constitutional amendments.

No one would confuse Mr. Shultz for a law prof.

"Additionally, the argument is that the photo-ID requirements will disenfranchise many populations, such as the elderly, students, the poor, and people of color.... All these are valid criticisms..."

Decisions by the Supreme Court of the United States notwithstanding.

vis. Crawford v. Marion County Election Board 2008

Validity?

The Supreme Court dismissed the concerns about disenfranchisement quite glibly (and yes, I know the opinion was by liberal icon John Paul Stevens). The concerns may not rise to a constitutional issue, but that does not render those criticisms invalid. They are a legislative matter, apparently not to be resolved by the courts.

Or are Supreme Court decisions the final arbiter of good policy and wisdom? Does that deference extend to, say, Roe v. Wade or Lawrence v. Texas?

Single Subject Rule

'In the last few years in cases such as Unity Church of State Paul v. Minnesota (2004), and Associated Builders and Contractors v. Ventura (2000), the Minnesota courts have aggressively enforced the single-subject rule, and there is no reason to think they will not do so here."

This is not correct. The cases that you cited, applied the principle of germaneness to determine whether a bill met the single subject rule. Under this principle the various parts of the bill must have a logical relationship to each other. Here, the two subjects are related and germane to one another. Therefore they would likely survive the test as applied in Unity Church and Associated Builders.

You may be correct that the courts would adopt a stricter test for determining single-subject when they are analyzing a constitutional amendment. However, I do not believe the holding in Unity Church supports that contention. In fact the Court in Unity Church stated:
"courts have rarely invalidated laws for a lack of germaneness for instance a constitutional amendment levying taxes on motor vehicle fuel and issuing bonds to finance highway construction was found germane to the subject of transportation where every matter in the chapter concerned the use, financing, and construction of a public highway transportation system and there was no evidence of fraud."

Damned if you do, damned if you don't

The writing of the constitutional amendment is specifically vague because it needs to be for voter ID to be passed this way. It cannot outline what specifically is a "valid" ID, because if/when that changes in the future, and is defined in the state constitution, it will take a new amendment to thus change it rather than law. So you actually want vague terms and pressure on the state legislature and governor to enable such a responsibility. To have very specific defined terms would actually be worse for the law. If the National ID card ever gets implemented, and that is not defined into that constitutional amendment for example, most people would see it as silly to do a new constitutional amendment to update that law rather than a law passed by the legislature of what is a valid ID.

But it is obvious the bias written into the article, that the author doesn't want voter ID period, many do and are in favor of it. Because voter fraud, despite the talking point, actually is a problem in the Minnesota election system, and it can be done in such a way that leaves absolutely no paper trail, which makes it impossible to quantify. It's a loophole in the system that needs to be fixed, and the State has a responsibility to insure that voters are indeed eligible, which cannot be done with our current registration and election rules.

Proof please

"Because voter fraud, despite the talking point, actually is a problem in the Minnesota election system, and it can be done in such a way that leaves absolutely no paper trail, which makes it impossible to quantify."

Well THERE'S a nice piece of circular (il)logic that works in your favor, isn't it?

Well, sorry, but not good enough. Provide documented verifiable proof that voter fraud exists, and at a level of great enough significance to justify the costly legal solution of a Constitutional amendment. Otherwise, your claim carries about the same weight as the electrons that whiffed your words through the Internet and onto this site.

A solution in search of a problem

If voter fraud is impossible to quantify, you can't prove that it exists. The quantity could, for all any of us know, be zero.

Laughable

Not once iota of proof. Tired of the republican garbage.

Bias?

"Because voter fraud, despite the talking point, actually is a problem in the Minnesota election system."

Its pretty sad when someone who makes a wholly unsupported claim like that turns around and accuses someone else of using "talking points" and being biased. If Schultz has any bias here, its a bias in favor of the facts.

@Rus - Can you cite a

@Rus - Can you cite a specific instance of voter impersonation fraud in Minnesota in the last 20-30 years? Because that's the only type of fraud an ID would "solve".

I am cheered by this article

I am cheered by this article and the difficulty and confusion of implementing it--passing enabling legislation, funds to carry it out (most Minnesotans have no idea of the high cost), probably veto when Gov. Dayton vetoes it.
Maybe in the meantime Minnesotans will understand the complexities of such a law and understand who is really promoting it.
Questioning Schultz's credentials is a cheap shot, inaccurate, and does nothing to move the conversation along.
What are YOUR credential to even say this?

Sloppy or weasely?

I think the latter, really.

"Voter ID" term is a fraud

Calling this a "Voter ID" amendment misinforms voters. The press shouldn't continue to use that fatally-flawed term for the proposal that has little to do with identifying voters and more to do with making it harder for many voters.

This is a proposal that effectively stops our service members overseas from voting, makes it more difficult for our seniors to vote and essentially eliminates same-day voter registration: impacting up to 1.5 million potential voters. If you don't want seniors, service members and the young to vote, then vote yes. Otherwise protect the vote and protect our democracy and vote NO.

So how should it have been written?

Since the author points out that the free ID is a necessary part of the amendment due to precedent, how should the proposed amendment read?

If an amendment passes with about 60-70% of the vote (including non-votes which count as no votes) would you want to be the Governor or party responsible for ignoring the will of the people?

Since felons not entitled to vote, college students who vote twice, and other such instances consistently occur each year and cancel out my legal vote, how is there not a problem? If the implementation language so far won't fix the fraud we have (proven), why not create some that will?

Provide proof

"Since felons not entitled to vote, college students who vote twice, and other such instances consistently occur each year and cancel out my legal vote"

This kind of claim requires proof: documentable and verifiable beyond your simple claim that "these things happen".

Absent such proof, your claims may be ignored.

"Vote cancelling"

First, felons voting won't be stopped by ID unless they stamp felon on your driver's license.

The more pressing concern, is your obvious disregard for democracy. You are worried about your vote cancelling, but care not about the vote suppression of someone else. College students are not voting twice, but you pass this law and they won't be able to vote at all.

How is a student from South Dakota going to vote on the U of M campus which is his supreme court ruled, constitutional right? He can use his South Dakota ID to get a beer in Dinky Town. Can he use his South Dakota ID to vote? From conservatives we know that voting and getting a beer needs to be equivalent.

Sorry I didn't write down the date

The Strib had an artocle this past spring about a college girl who had her mother fill out and sign her absentee ballot back home. Then, forgetting this, she went out and voted locally. The college student and mother admitted the mistake and nobody went to jail. I didn't think about writing down and copying the article. Sorry.

Absentee voting is the answer to the college student question. It has been for decades.

Actually I do care about voter suppression, as do a lot of people. I just wish that some the voter suppression folks might concede that my (and other votes) are being cancelled illegally, and that my vote is JUST AS IMPORTANT as everyone else's.

Not applicable

So here is a great example of how the ID proponent crowd tends to take a single example and blow it up into a systemic problem. Incidentally, it's also a great example of why requiring cites for claims that are made continues to be a critical part of this dialogue.

Your initial comment included the stated claim of "college students who vote twice". When asked for cites, you responded "The Strib had an article this past spring about a college girl who had her mother fill out and sign her absentee ballot back home".

Actually, this was more than just "an article", and the situation is not quite as you state it.

What happened was that the ACLU had issued a challenge, offering a $1000 reward "for finding a case of fraud that a photo ID requirement would have prevented." Despite exhaustive searching, all the ID proponent folks were able to come up with was a couple of cases of felons voting because they didn't realize their voting rights had not been reinstated (would not have been prevented by photo ID) and one - read that carefully - it says ONE - case where a woman voted in person in her own name and then again by absentee ballot in the name of her daughter who was away at college:

http://www.startribune.com/politics/statelocal/141590563.html

So not only is this NOT "college students who vote twice" (the mother voted twice, not the daughter), it's also a single case, and was caught by the safeguards currently in place. Hardly the rampant out-of-control problem that justifies instituting new and potentially onerous requirements on significant segments of the population and enshrining that in our State Constitution.

Incidentally, the ACLU declined to pay out on this claim: http://www.aclu-mn.org/news/2012/04/02/no-eligible-evidence-submitted--a...

But to summarize, this illustrates what actually IS a very real and pervasive problem - people's tendency to take inapplicable or anecdotal single case studies and claim that they justify sweeping measures to safeguard against their ever happening again. Not only is such a response illogical, it is also impracticable and verging on the irrational.

Thanks for digging

I was relieved tonight at a townhall meeting when a local Representative (who opposes the voter ID ammendment) also referenced this two-for-one voting story. She also reported the felons voting who thought that they could when in fact they could not. Glad you found the actual articles as this should silence the people who claim that there is NO fraudulent voting in Minnesota. All it takes is for people to actually check. Sadly, my vote was erased but hopefully when the amendment passes our legislators will craft implementation that solves all of our concerns.

You really think . . . .

You really think your self interest trumps EVERYONE else's?

The point that keeps getting ignored by ID proponents is that even if there is some infinitesimally small number of votes that are not being validly cast, a rational person has to ask whether that justifies instituting difficult and potentially insurmountable hurdles to voting for large segments of the population.

In other words, you're placing barriers to voting in front of a MUCH larger number of people than the number of people who may be casting invalid votes. It's simple math that pretty much swamps the whole "canceling out" argument, but self-centered ID proponents continue to refuse to see that.

But I guess that's what happens when "it's all about you".

On the other hand, some of us are concerned about maintaining the rights of EVERYONE in this society. Everyone is a much larger number than one, because - as much as you may dislike admitting it - it is NOT all about you.

Well

"even if there is" Please, please just admit that it is true, you have the proof.

"difficult" and "potentially" and "large" are rather vague terms, just like in the amendment.

Once again, I'm all for addressing the concerns of those who feel that it will be too hard for them to vote, I'm just pointing out the FACT that there are illegal votes being cast and I'd like someone to try and solve that problem.

Better that a hundred guilty men go free than one innocent man go to jail. Apparently it is all about the one.

"my (and other votes) are

"my (and other votes) are being cancelled illegally"

What if this hypothetical illegal voter cast a ballot for the same candidate as you? Isn't that good for you? Or are you suggesting that illegal voters only vote for candidates you don't like?

Did you just admit the whole premise of voter ID -- to curb votes for Democrats?

It is possible

That convicted felons would vote for law and order type candidates and candidates that want tougher senteces for criminals.

Has it ever occurred to voter ID opponents that there might not be a sinister plot behind the amendment? What if the people just think that having a photo ID might be a good idea? Will 70-80% of the people be wrong if they vote for this amendment?

Aren't we causing hardship on those without photo IDs by not allowing them to purchase cigarettes, liquor, rental cars, purchase lottery tickets or gamble? How is this obvious discrimination legal?

Rights

It's not about hardships. It's about rights.

The question isn't "Are we addressing hardship?". The question is "Are we suppressing rights?"

Making it harder to vote by legally registered voters suppresses their right to vote.

The purchase of cigarettes, liquor, rental cars, lottery tickets or the participation in gambling is not a right. Voting is.

Yet another subtle distinction the ID proponents continue to willfully ignore.

Expand your reasoning

What if we were to require photo ID before we allowed someone to speak publicly? What if people thought it was a good idea, and had good reasons for it?

Incidentally, I'm curious as to why you would equate voting with buying tobacco, alcohol, etc. Does the Constitution guarantee or protect our right to buy cigs? Is renting a car fundamental to a democracy? If the lottery went away tomorrow, I don't think our republic would suffer. Take away voting, and what would you have?

So yes, 70-80% of the people will be wrong if they vote for this amendment. I believe in democracy, but I don't believe in crowdsourcing questions of right and wrong.

I'm not equating

But aren't we discriminating against many people by requiring an ID for anything? Wouldn't that be illegal and an unfair intrusion by the government?

Again, when the actual legislation is actually written, let's make sure that we cover the folks in nursing homes, people who lost their IDs ON ELECTION DAY (good grief!), students (who can't figure out absentee voting), military (absentee and absolutely having government ID), etc. Cover all bases and help ensure that all votes are legit.

I think that the Constitution does guarantee equal opportunity, even if you don't have an ID.

Faith

You're putting an awful lot of faith into whichever legislators will eventually be tasked with writing the enabling legislation in the event this thing passes.

Not only do some of us not share that blind faith (considering all the other shenanigans that have gone on this session), but the vagueness of the wording of the ballot language relative to the scope of the enabling legislation that will be required is of enough concern that there are lawsuits in process on this subject.

A lot of us are just not comfortable with saying "I'm pretty sure things will turn out all right" when it comes to matters of such importance.

Unintended consequences

Now that the healthcare mandate has been approved, the voter ID amendment stands an even better chance of passage. Since all Minnesotans must apply for and purchase health insurance (which may cost over $10,000 per year) the thought of claiming that the burden of applying for a free government idea is too great will seem, well, silly. But good news! Not wanting to be someone who just says no, no, no, without offering solutions, I have the fix:

Since all voter eligible persons will have to have health insurance (good luck getting it without ID), the State requires that all Minnesotans (since that is everyone who has to buy health insurance) will receive a free health insurance card complete with current address and photo from the insurance provider. The legislature then (after the amendment passes this fall) writes into the Voter ID law that amongst the various kinds of acceptable photo IDs, drivers license, military ID, MN state ID, U.S. passport, that a health insurance ID will also be acceptable. Everyone has a photo ID and it doesn't cost the taxpayers a cent.

Makes too much sense doesn't it?

I think the laws are silly,

I think the laws are silly, wasteful and suspect. But I look at it this way: paranoid citizens are probably the worst citizens, but they are expensive. When they ask for the government to strictly enforce existing immigration laws and seal the border, they're asking for a massive expansion of government, more or less Iraq expensive in direct costs and maybe equal expensive in lost economic performance. When they want the executive branch to have carte blanche as long as they claim someone is a terrorist, they put the whole constitution and the honor of the country in jeopardy.

Voter I.D. laws may be a pure waste of money but they have the virtue of being as small as they are trifling. Most petty laws are enormous in scope.

Just another piece in the repeal of the 20th century

Our country fought from the start of the 20th century until the end to increase access to voting. Women, removing Jim Crowe laws, and on. Why do conservatives want to repeal almost every bit of progress attained in the 20th century? Seriously. The "American Century". The "greatest generation". You'd think it would be the country of the 1900's they wanted back, not the 1800's.