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Supreme Court opinion and dissent on voting-amendment petition

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In his dissent, Justice Alan Page called the Voting Amendment a 'bait and switch.'

The following are excerpts from the Minnesota Supreme Court opinion on the petition by the League of Women Voters et al. to remove the voting amendment from the general election ballot this fall. It is followed by excerpts from the dissent.

This action was brought under Minn. Stat. § 204B.44 (2010), seeking to correct an alleged error in the preparation of the ballot for the general election. Specifically, petitioners seek to prevent the people of Minnesota from voting on the question of whether photographic identification should be required to vote in Minnesota. The court is unanimous in concluding that petitioners are not entitled to this unprecedented relief. We express no opinion in this case as to the merits of changing Minnesota law to require photographic identification to vote; that question, as petitioners concede, is not presented in this case. Because we conclude that the petitioners have not met their burden of demonstrating that there is an error that requires the judiciary to intercede, we deny the petition.

In April 2012, the Legislature approved a proposed amendment to Article VII, Section 1 of the Minnesota Constitution. This section currently provides:

Every person 18 years of age or more who has been a citizen of the United States for three months and who has resided in the precinct for 30 days next preceding an election shall be entitled to vote in that precinct. The place of voting by one otherwise qualified who has changed his residence within 30 days preceding the election shall be prescribed by law. The following persons shall not be entitled or permitted to vote at any election in this state: A person not meeting the above requirements; a person who has been convicted of treason or felony, unless restored to civil rights; a person under guardianship, or a person who is insane or not mentally competent.

The proposed amendment would designate the provision above as (a) and add two subsections, (b) and (c), as follows:

(b) 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.

(c) 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.

In the same session law, the Legislature also approved the language of the question to be placed on the November 2012 general election ballot concerning the proposed constitutional amendment:

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?

In order to become effective, the amendment must be agreed to by “a majority of all the electors voting at the election,” not just a majority of those voting on the amendment itself.  The legislation at issue in this case provides that, if approved, the constitutional amendment would become “effective July 1, 2013, for all voting at elections scheduled to be conducted November 5, 2013, and thereafter.”

On May 30, 2012, petitioners filed a petition with our court under Minn. Stat. § 204B.44, seeking to “strik[e] the ballot question pertaining to the Voter Identification and Provisional Ballot Amendment” and to enjoin the Secretary of State from placing the question on the November 2012 general election ballot. Petitioners allege that the Legislature’s ballot question “is misleading because it does not accurately and factually describe the proposed amendment, and because it fails to describe at all certain important substantive provisions contained in the amendment.” ...

In essence, petitioners argue that it would be unconstitutional to submit the proposed ballot question to the voters because the question is misleading. Petitioners seek unprecedented relief — removal from the general election ballot of a proposed constitutional amendment that the Legislature passed and proposed to the people.

Petitioners point to four alleged defects in the question framed by the Legislature. First, petitioners contend that the question is erroneous because it refers to “valid photo identification,” whereas the actual amendment refers to “government-issued photographic identification.” Second, petitioners contend the question is erroneous because it indicates that “all voters” will have to present photographic identification, but under the text of the amendment only “voters voting in person” will have to present such identification. Third, petitioners argue that the question is erroneous because it fails to describe that absentee voters will be subject to “substantially equivalent identity and eligibility verification” requirements, as referenced in the amendment. Fourth, petitioners argue that the question is erroneous because it fails to include any information regarding the provisional balloting referenced in the amendment. Based on these errors and omissions, petitioners request that we strike the question from the ballot. ...

We agree with petitioners that there is a difference between a “government-issued photographic identification,” and a “valid photographic identification.” That the ballot question reads differently than the proposed amendment, however, does not render the ballot question “ ‘so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit’ ” the proposed constitutional amendment “ ‘to a popular vote.’ ” ...

Petitioners also argue that the ballot question is misleading because it indicates that “all voters” will be required to present “valid photographic identification,” when in fact, according to petitioners, the proposed amendment requires that only some voters (namely, those voting in person) present valid photographic identification. This argument is unpersuasive. Petitioners read the ballot question as narrowly referencing only the obligations placed by the proposed amendment on voters voting in person, and therefore conclude that the question is misleading because it states that the proposed amendment will require all voters to present photographic identification. But the ballot question does not refer specifically to only the portion of the proposed amendment that will affect voters voting in person, and petitioners are simply wrong in arguing that the proposed amendment requires only those voting in person to submit photographic identification. ...

Petitioners also contend that two omissions from the ballot question render the question constitutionally misleading. Specifically, petitioners argue that the ballot question does not tell voters that those voting by absentee ballot will be subject to “substantially equivalent identity and eligibility” requirements, nor does it reference the use of “provisional ballots” for voters without photographic identification. These omissions do not render the ballot question unconstitutional under our deferential standard of review.

The omission of “or substantially equivalent” does not render the ballot question misleading under our “high standard,” Breza, 723 N.W.2d at 636, because “substantially equivalent identity . . . verification” means just what it says. Equivalent is defined as “like in signification or import,” or “corresponding or virtually identical [especially] in effect or function.” Merriam-Websters Collegiate Dictionary 392 (10th ed. 2001).

By definition, therefore, all voters would be required to produce valid government-issued photographic identification, or something that is substantially alike in signification or import or that is virtually identical ... . Because all voters would present valid government-issued photographic identification or something that is virtually identical to such identification, the ballot question does not mislead voters to the extent that it is “ ‘a palpable evasion of the constitutional requirement to submit the law to a popular vote.’ ” ...

In sum, the constitutional amendment, if passed, would require that voters who vote in person present a valid government-issued photographic identification and would require all voters present some form of identification that is substantially equivalent to a valid government-issued photographic identification. The ballot question asks the people to decide whether the Minnesota Constitution should be amended to require that all voters present “valid photo identification” to vote in Minnesota. We acknowledge that the ballot question, as framed by the Legislature, does not use the same words used in the amendment itself nor does it list all of the potential effects of implementation of the identification system contemplated in the proposed amendment. These failures may be criticized, and it may indeed have been wiser for the Legislature to include the entire amendment on the ballot. ...

The failures about which petitioners complain do not meet the “high standard” required for the judiciary to intercede into a matter that is constitutionally committed to the legislative branch. Breza, 723 N.W.2d at 636. We therefore hold that petitioners have not met their burden to prove that there is an error that requires correction.12

Petition denied.

D I S S E N T

PAGE, Justice (dissenting).

Bait and Switch: the ploy of offering a person something desirable to gain favor (as political support) then thwarting expectations with something less desirable.

Bait and Switch, Merriam-Webster Online Dictionary, http://www.merriam-webster.com (last visited July 27, 2012). What we are dealing with here is a classic bait and switch.

In April 2012 the Legislature approved a proposed amendment to Article VII, Section 1 of the Minnesota Constitution that would add two subsections to that section as follows:

(b) 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.

(c) 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.

The Legislature also approved the language of a question to be placed on the November 2012 ballot (the ballot question) concerning the proposed amendment. The ballot question approved by the Legislature is as follows:

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? ...

I read Article IX, Section 1 of the Minnesota Constitution to require that the language of a proposed constitutional amendment itself appear on the ballot. Moreover, if there is to be a question on the ballot concerning a proposed constitutional amendment, that question cannot materially misstate the language of the proposed amendment.

The language of the ballot question drafted by the Legislature at issue in this case deliberately and materially misstates the language of the proposed amendment. I therefore respectfully dissent. ...

When the question placed before the voters — on the basis of which the voters will decide whether to approve or reject the proposed amendment — is deceptive and misleading, we should not only be wary; our scrutiny should be at its strictest. ...

The ballot question drafted by the Legislature here offers supporters of the requirement that voters’ identities be verified by photographic identification before they can cast a ballot something desirable — the promise that all voters will be required to show photo identification in order to receive a ballot — to gain the favor of their political support for the proposed amendment. But it delivers something considerably less desirable: a constitutional amendment with many exceptions to the photo identification requirement. A ballot question that so materially and deliberately misstates the language of the proposed amendment to which it relates is nothing more than a bait and switch.

The plain language of the text of the proposed amendment passed by the Legislature differs markedly and materially from the proposed amendment the Legislature’s ballot question describes. The ballot question asks whether the Minnesota Constitution should be amended to require “all voters” to present photo identification. But the proposed amendment as drafted requires only “voters voting in person” to present photographic identification. Unless the Legislature intends to eliminate absentee voting and mail balloting — something that proponents of the proposed amendment steadfastly and specifically denied during the Legislature’s deliberations over the proposed amendment — “all voters” and “voters voting in person” are not the same. “All voters” includes “voters voting in person,” but “voters voting in person” does not include “all voters.” Voters voting by absentee and mail ballot do not vote in person. As a result, voters voting on the proposed amendment will not know from reading the ballot question that a “yes” vote will not in fact require “all voters” to show photographic identification in order to receive a ballot to vote. The ballot question is deceptive and misleading in that respect.

The ballot question also asks whether the Minnesota Constitution should be amended to require that “all voters” present “valid” photo identification in order to vote. But the proposed amendment’s limits on a voter’s photo identification are more stringent than just “valid.” The proposed amendment limits the acceptable photographic identification that in-person voters must present to “valid government-issued photographic identification.” (Emphasis added.) From the ballot question, voters would reasonably conclude that the proposed amendment would allow a voter to receive a ballot on the presentation of any valid photo identification, whether it be a student ID from a private college or university, a private employer’s identification badge, or a photographic credit card. They would be wrong. If the proposed amendment is adopted, none of these forms of photographic identification would satisfy the constitutional requirement, regardless of their validity, because they are not “government-issued.”

The court dismisses these misrepresentations as merely situations in which the ballot question could be clearer, and attributes them to the Legislature’s attempt to concisely summarize the proposed amendment as a ballot question. See Duluth Railway, 102 Minn. at 30, 112 N.W. at 898 (explaining that courts may not review the language of a ballot question prescribed by the Legislature for a proposed statutory change “simply because” the courts may believe “the question was not phrased in the best or fairest terms”).

To be blunt, in this case that is nonsense. This is not a case in which the ballot question was simply “not phrased in the best or fairest terms.” Id. This is a case in which the words of the ballot question were phrased to actively deceive and mislead. By adding three words — “voting in person” — to the phrase “all voters” and two words — “government-issued” — to the phrase “valid photo identification,” the ballot question would have been no less concise but far more accurate. The Legislature’s failure to add these five words is, in my view, fatal to the ballot question.

Furthermore, the court’s superficial analysis of the ballot question fails to do justice to our jurisprudence or to our role as a court. According to the court, the ballot question “summarizes” provisions of the proposed amendment, even though the provisions of the proposed amendment are inherently contradictory. The court assures readers in one breath that the proposed amendment in fact requires all voters to submit photographic identification — and therefore the ballot question is not misleading — and admits in the next breath that some voters will be required to present something different. The court acknowledges there is a difference between “valid photographic identification” and “valid government-issued photographic identification,” but then seems to dismiss the difference as something about which voters either do not care or are not entitled to be informed. ...

The court’s reasoning is faulty for a number of reasons, not the least of which is that the only thing that is substantially equivalent to photographic identification is photographic identification. If the Legislature had intended the term “substantially equivalent identity verification” to mean photographic identification, it would have said so, but it did not. ...

Other than suggesting — falsely — that I have acted as a fact-finder here and engaging in a bit of name-calling, the court makes no effort to explain why my analysis of the ballot question is wrong, because it cannot. ...

I would conclude that the ballot question proposed by the Legislature is materially and fundamentally deceptive and misleading, constitutes a bait and switch, and even applying the inappropriately deferential standard of review adopted by the court, is “so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit the [amendment] to a popular vote.” I would therefore strike the ballot question from the ballot.

Because the court concludes that the language of the ballot question proposed by the Legislature is not misleading, it does not reach the question of the appropriate remedy.  The proper remedy is to require that the text of the proposed amendment as drafted by the Legislature be placed on the ballot, consistent with the requirements of Article IX, Section 1 of the Minnesota Constitution. ...

Underlying this case is the Legislature’s purported concern about threats to the integrity of the ballot. Thus, it is ironic, if not Orwellian, that in the name of “protecting” the vote and preventing unspecified voting “fraud,” the Legislature has resorted to a ballot question that deliberately deceives and misleads the very voters it claims must be protected. I cannot explain, nor can I understand, the court’s willingness to be complicit with the Legislature in this effort. Nor can I explain or understand the court’s fear of putting before voters for their approval or rejection the actual language of the proposed amendment as drafted by the Legislature. Therefore, I respectfully dissent.

ANDERSON, PAUL H., J. (dissenting).

I join in the dissent of Justice Page.

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Comments (12)

Justice Anderson's bitter diatribe...

wouldn't pass muster with the Minnpost censors! It's a pity the people of Minnesota must be exposed to such ill considered amphigory from a member of our highest court.

In my opinion, this will inform thoughtful court watchers of Justice Anderson's motivations for as long as he remains on the court.

Dissent was correct

I too dissent and will continue to dissent. The illogic of the majority is due their highly partisan politics (all pawlenty appointees).

Judicial dissent

It's pretty ironic that you use the word amphigory, Mr. Swift. Perhaps it doesn't mean what you think it means. Certainly, the justice is entitled to his legal opinion. It is well-reasoned, quite frankly, and should have been the majority. The problem is, too much partisan politics has entered into the courts, which are supposed to be politically neutral and focused on the law, and if law isn't sufficient, common sense. The obvious blindness to the law, and common sense for that matter, is something we're seeing in courts at all levels--and it isn't "liberal" judicial activism, either.

Another change of subject

I read MinnPost frequently and therefore have seen many Swift comments. What I have noticed is that when he doesn't have a good position to argue from, he changes the subject, and then many reply comments are about his changed subject, a distraction from the primary issue. Excellent P.R. technique!

In this case, the shift is to: Justice Page's tone, MinnPost editorial standards, and something I cannot understand about Justice Anderson. I wish I had as much time available to comment as Swift does, as I would like to reply with a post pointing out his his change of subject to avoid the issue each time he uses the technique. Perhaps other MinnPost readers who have more time can do so instead.

Ironically, my own post today falls for this trap, but I don't have time to add anything to the rather convincing dissent of Justice Page.

threadjacking

It's win-win for him. Especially when he throws in the personal insults and snark:

He either derails the conversation, or he drives people away from the site in disgust.

One wonders

Why such comments by him are allowed.

Voter ID decision

Before we start proclaiming that this decision was fair arbiter of the challenge, lets remember that 4 majority voters are Pawlenty appointees. Enough said!

Cuts Both Ways

Those who support deceiving voters this way through word choices on a ballot will have to accept it when they are duped into supporting something they have fought against.

As an example a consititutional amendment on the ballot that sounds like it attempts to make it law that men shall be paid fairly for their labors (who wouldn't support that?), and the true language is that women must be paid the same for equal work (egads!).

Thank you for your concern Diane

...but speaking for myself, and most conservatives I'd venture to say, we'll take our chances against being duped without the help of our scary smart leftist protectors.

A judge's political connection

Two weeks ago, a lawsuit seeking to tighten the state's regulations to protect against voter fraud was dismissed by U. S. District Court Judge Donovan Frank. The case was brought by the Minnesota Voter Alliance, the Minnesota Freedom Council and Republican State Representative Sondra Erickson of Princeton.

Judge Frank was appointed by Bill Clinton, a Democrat. People raising the issue of the appointment process for judges should be a bit more consistent in their complaints. Many decisions made by judges are influenced by their political beliefs.

You won one. We won one. Get over it.

If you think that it is ok for

Judges to be influenced by their political beliefs in making a decision, you are sadly mistaken.

winning and losers ...

Is this what the decision was about ? It is too bad that what this amendment is really about was not decided upon the enfranchisement question. Who gets to vote and how they are likely to vote is really what's not being spoken to by my "conservative" citizens. This entire thing is an effort to take away the right to vote from some certain citizens. It is certainly too bad that we cannot really let the voters decide. I certainly hope that when this is all said and done the results in this election will be what I hope what our common values for the good if the many and not the cynical power grabbers.