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Minnesota Supreme Court vigorously questions Photo ID supporters and opponents -- but doesn’t tip hand

Attorney for the Legislature Thomas Boyd
MinnPost photo by James Nord
Attorney for the Legislature Thomas Boyd said the Legislature should have complete control over the ballot question.

The Minnesota Supreme Court on Tuesday vigorously questioned attorneys from both sides of the Photo ID debate and is expected to rule by late August on whether the proposed constitutional amendment will appear on the November ballot.

 The suit, brought by the League of Women Voters and other activist groups, asks the court to strike the proposal from the ballot, arguing that the current language doesn’t accurately portray the amendment’s effects.

An attorney for the state Legislature argued that the court lacks the authority to dictate the form or status of constitutional amendments.

The justices’ mood in the courtroom — pointed at some times and lighthearted at others — gave little indication what the court will do with the amendment.

At least two justices seemed to indicate that they consider the ballot question misleading — which is what opponents of the amendment argue — but then in almost the next breath defended the Legislature’s authority to craft amendments.

Opponents of Photo ID would have to convince the court that the ballot question — which makes no mention of a proposed provisional voting system or different standards for absentee voters — is “so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit the law to a popular vote,” according to legal precedent.

Bill Pentelovitch, an attorney for the League, told the court that the ballot question doesn’t adequately inform the public of what it’s voting on, a view that resonated with Associate Justice Paul Anderson.

Photo ID opponents' attorney William Pentelovitch addressed reporters after arguing before the state Supreme Court.MinnPost photo by James NordPhoto ID opponents' attorney William Pentelovitch addressed reporters after arguing before the state Supreme Court.

“Questions can be deficient by omission as well as misstatement,” Anderson told the Legislature’s attorney, Thomas Boyd. “Let me submit, you have a major omission here that I think can cause real problems for the voters.”

Anderson, one of the most outspoken justices at the proceedings, also questioned how the amendment itself would affect voting in the future.

“Does this provisional voting provision in the amendment essentially eviscerate Election Day registration such that it would have affected one-sixth of the voters … in 2008?” he asked. “If the Legislature presents something that’s deceptive, don’t we have the right to review that?”

But Boyd, who essentially represents the Republican majorities in the Legislature, said if the court intervenes, it would erode the Legislature’s sole authority over constitutional amendments and breach the separation of powers.

“The Legislature had the exclusive authority to present that to the people for a vote if they adopt it,” he said.

The political partisanship that surrounds the Photo ID issue also caused some justices to pause.

“Why shouldn’t we be hands off with this particular question? Why shouldn’t we say, ‘This is a political question?’ ” Associate Justice David Stras asked. “It sounds a lot like there’s not much in terms of a remedy that we can give.”

Stras’ concerns highlight the other quandary before the court: If it finds the ballot question unconstitutional, what can it do to repair the situation? According to the justices and attorneys for both parties, the court has the option to take the question off the ballot or to add the entire wording of the amendment.

But Boyd argued that even submitting the full amendment language would be “unpalatable” to legislators.

“The Legislature does not believe that there would be a good remedy,” Boyd said. “The only course is to proceed with the ballot question and to have it on the ballot.”

Rep. Mary Kiffmeyer and Sen. Scott Newman, chief authors of the Photo ID amendment who attempted to intervene in the lawsuit, said after the hearing that they were pleased with the court’s engagement, but they didn’t try to predict an outcome.

“You just don’t know. I think it’s just best to sit back, let them do their job,” Newman said. “We don’t know what they’re going to do.”

Newman also said that there would be additional litigation forthcoming about Secretary of State Mark Ritchie’s renaming the ballot question, which stirred up controversy last week.

“We will be raising it in the form of a suit similar to the marriage amendment,” Newman said.

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Comments (21)

How in the world

that positively identifying voters to protect the integrity of our elections is unconstitutional?

Answer: it is not. The left is out to destroy this country.

Disenfranchising voters to

Disenfranchising voters to solve a non-existent problem makes no sense. The fact is, there is no evidence that voter impersonation fraud -- the only type of fraud a requirement that voters show ID can prevent -- is actually occurring. If voter impersonation was widespread or even happening occasionally, you would expect to see evidence that voters showed up at polls only to learn that someone already had voted for them. You also would expect to hear evidence that, every once in a while, an impersonator is caught because the poll workers or poll watchers know the voter that the impersonator is attempting to impersonate or the impersonator is unable to convincingly forge the real voter's signature. But I have not seen any such evidence.

Also, it would be extremely easy to perform an empirical study to determine if voter impersonation fraud was occurring: (1) check the poll books to see whether people who died before any given election signed in to vote; (2) contact a statistically significant number of voters who signed in to vote at any election and ask whether they in fact voted; and (3) check to see whether anyone who fraudulently registered to vote actually signed in to vote. The fact that the proponents of the law have not done this study (or, if they have, have not published the results) is telling.

Read the article

The issue with respect to constitutionality is whether the title language accurately reflects the actual amendment, and whether the amendment language accurately and completely reflects the changes required, not whether "positively identifying voters" is constitutional.

For example, the legislature used the term "valid photo ID" for the title, but the amendment says "government issued ID". Many states with ID requirements allow student ID or other forms of ID with photo. So it's not an insignificant distinction.

Many states have implemented some form of ID and, as far as I know, there is not an inherent question about the constitutionality of requiring an ID, unless it's implementation unduly impacted a certain class of people, there would be an issue.

The MN Supreme Court doesn't protect us from stupid laws and unnecessary laws, just unconstitutional ones.

No, it's not confusing.

""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?"

What's the omission?

Answer: There is none.

Next question.

The actual amendment

That's the question that would appear on the ballot. Here is how the constitution would actually be amended.

(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 question says that the photo IDs must be valid, but the actual amendment says that they also must be government-issued photo IDs. That rules out a whole bunch of potentially acceptable IDs (such as student ID cards), which people might assume would be valid.

The question also makes no mention of provisional balloting, which would be a huge change to Minnesota election procedures.

Picture IDs are fine if they

Picture ID's are fine if they are provided for free by the Registrar of Voters and made available at each voting precinct in real-time. Otherwise, it's pure Jim Crow shenanigans all over again.

What is free?

It's one thing to say that the photo IDs must be free. However, what about the documentation required to get a photo ID? In other states that have implemented this, a birth certificate is often required for people without driver's licenses. Unless the birth certificate is free, then the photo ID does have a cost, which is substantially equivalent to a poll tax, which is unconstitutional.

"The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax." -24th Amendment

Verifying your identity

for purposes of insuring the integrity of the electoral system is not a poll tax.

The fact is, there is no

The fact is, there is no evidence that voter impersonation fraud -- the only type of fraud a requirement that voters show ID can prevent -- is actually occurring. Mr. Krasnoff, please respond in detail using facts and documentation to my comment above regarding voter disenfranchisement.

It is if you have to pay to

It is if you have to pay to get the ID or the documents required to get the ID

To legally vote one must be a

To legally vote one must be a citizen. The only government-issued photo ID that actually proves citizenship is a passport or naturalization certificate.

Anyone serious about ensuring voter eligibility (by something additional to a normal voter registration card), would require actual proof of a right to vote. Instead, they only require a drivers license or similar that doesn't prove anything remotely relevant to a right to vote. But obtaining the latter provides just enough difficulty for just enough people to exclude large numbers that are statistically likely to vote the 'wrong' way. There is no other possible reason for this bullshit, and everyone knows it.

A solution looking desperately for a problem

The desperate republicans' sky is falling, again. So they develop a solution without a problem. There hasn't been any voter fraud indentified in two recent recount elections. The republicans are forcing many to spend time and resources chasing another of their imaginary problems as they try to look relevant. All they are really doing is showing the public that their self-proclaimed republican title "fiscal conservative" has zero meaning. Voters, the republicans are demonstrating to you how leaderless and desperate they are. They won't work the real problems the state has so they have to work their imaginary problems. Voters, the choice is yours in November.

"So they develop a solution

"So they develop a solution without a problem." Actually they do have a problem, they are just lying about what it is. The problem they are attempting to solve is there is a sizable block of legal voters who will not vote for them. They need to find a way to keep them from voting. Voter suppression is a tactic that Republicans have been busted using over and over and over again. It got them the presidency in 2000. They know for a fact that when turnout is high, they do not do nearly as well so this voter ID nonsense is a way for them to attempt to lower the number of people voting. It specifically targets voters that are unlikely to vote for them anyway.

"Positively identifying voters"?

Voters are "positively identified" today. They take an oath that they are who they say they are and that they meet the eligiblity requirements. People are sent to prison based on sworn testimony every day; it ought to be sufficient to cast a vote.

While it might not be unconstitutional per se to require MORE positive identification of voters, due process requires there to be a sufficiently important governmental need before doing so, and dit requires the remedy to fit the perceived need. "Prevention of fraud" won't suffice because there is no evidence of ANY fraud (or even nonfraudulent ineligible voters voting) in Minnesota that a photo ID would prevent. The only demonstrated ineligiblie voters voting I'm aware of are a few felons who voted before being off paper, something that having a valid ID wouldn't address.

Furthermore -- and perhaps more important -- since the burden of the amendment falls on a more-or-less discrete class of voters (i.e., students and other eligible voters who move frequently, and eligible voters with low incomes), the government must demonstrate more than a hypothetical possiblity that someone MIGHT commit fraud that would be prevented by a photo ID. It must justify the burden with actual evidence of a problem that the remedy addresses, which it has not done.

Furthermore, even if the proposed amendment wasn't unconstitutional on its face, the ballot question proposed by the Legislature grossly mischaracterizs the text of the amendment being proposed. The proposed question is: "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.,"

This mischaracterizes and misleads as to the effect of the amendment in at least three ways. The proposed amendment requires (a) valid "government issued photographic identification" before receiving a ballot -- that's a lot more than a "valid" ID which may be issued by a school or college, Indian tribe, or other entithy; (b) creation of a "provisional ballot" procedure that requires an eligible voter without "valid government-issued photo ID" to return return and present the ID in some as-yet unspecified way -- not even hinted at in the Legislature's description; and (c) imposing the photo ID requirment on absentee voters as well as those who are able to vote in person, also not mentioned.

I wish the Republicans would simply be honest in their reasons for pushing the amendment:They believe that it is owrth it to prevent many eligible voters from voting than it is to permit a single ineligible voter from voting because the eligible voters who will not be permitted to vote mostly vote Democratic. .

Phony Photo IDs

Has it occurred to anyone but me that a phony, yet fully vetted government furnished photo ID can be created through the simple method of minimal disguise techniques, and a legitimate temporary actual residence in adjoining precincts of the same congressional districts, that can enable duplicate voting by an individual?

And do you honestly believe that the election judges in each precinct can reasonably determine that a person is who they claim to be by simply looking at a photograph that resembles the person offering it at election time, without anything other than that particular item, (false or real) to backup, the authenticity of a match to an accurate listing of that supposed person's name (real or phony) on the official election roster?

This whole thing becomes an exercise in ridiculousness, and a formal invitation to allow gaming the vote by determined individuals, for either profit or purpose.

This whole situation should be re approached from the outset considering a far more positive demonstration of personal identity based entirely on the use of fingerprints along with a requirement that anyone requesting a ballot must leave a copy of a digital depiction of the individual characteristics of that person before they can be given a ballot. Such a requirement can even be satisfied through the use of a non Digital but reasonably distinct inked replica of those people requesting an absentee ballot, or in the case of election day registration, a digital record at the polling place.

Such a requirement would be far less costly than requiring an official record representation of every voter via digital photographic methods for instant comparison to the person requesting a ballot.

Doing so with any reasonable accuracy would require a truly expensive and difficult to maintain system that would still fall far short of positive.

Now, even if there can be more than one person having a characteristic single standard fingerprint digital signature that is alike within a reasonable area of each voting jurisdiction, there is no reason why such a situation can not be handled by requiring those few individuals to be required to providing a record of a designated different digit of their hands that do NOT match.

This to be determined through a far more easily match of recorded digital fingerprint records than could ever possibly be achieved through attempting to match individual characteristics of facial photographs.

How many people do you know who would risk placing themselves in true jeopardy by not being able to avoid leaving a self-incriminating finger print record of an attempt to commit a felony?.

If it will please the Court, this idea would be honored and the Citizenry at large will be grateful to have you consider the above to be a just solution to a problem that may well be created by the false assurance that is generated by this current political proposal now requiring your consideration.

If nothing else

this situation provides an excellent illustration of the problems inherent in legislating by amending the state constitution. The more complex the situation, the less amenable it is to resolution in a relatively few words.

Here, we have a proposed solution for a yet-to-be-demonstrated problem (voter impersonation) that only succeeds in raising questions which the legislature (and courts?) ultimately will have to address.

Frankly, it's a wast of our time, money and energy and, I suspect, is intended as much to draw voters to the polls this November and curry political favor with certain segments of the electorate as anything else.

Finally, I'd point to the dispute over the very title of the question as evidence of both the amendment's complexity and and the apparently mutual convictions that many voters won't read beyond the caption.

To find fraud, you have to look for it.

There's fraud out there, it's just not in the best interest of Mark Ritchie, Mark Dayton or the Democrat party to look for it.

Heck, even when MASSIVE identity fraud is uncovered, you won't hear the leftist media (including MinnPost) reporting about it. A timely case in point:

"Investigators: 10,000 Minn. drivers licenses canceled in possible fraud"

http://www.myfoxtwincities.com/story/19033837/drivers-license-and-id-fra...

"There was about 23,000 records that we think are a good chance of being fraud," Neville said.

23,705 cases of possible fraud to be exact.

People like Pedro Chavez, aka Jose Cisneros, or Carlos Santiago, or Antonia Ledesma -- four separate Minnesota driver's licenses.

Detectives say the Albert Lea man was illegally collecting welfare for a decade, using real Minnesota driver's licenses obtained with phony documents. He was convicted of forgery, and deported.

"Is it a fraudulent birth certificate, is it a fake DL from another state?" Neville said. "Yes in all those cases as well as taking someone else's documentation and presenting it as their own."

Of these 24,000 driver's licenses, about 10,000 have been canceled."

Did Pedro\Jose\Carlos\Antonia vote? We don't know yet, but this is *exactly and precisely* the thing that we're going to discourage with Voter ID.

People will learn that there are few things as closely scruitinzed as a close election. Presenting a forged ID to vote, even to vote for the Democrats (who claim they will lose the most votes due to ID requirements), will bring a heat most won't want to risk.

There is only one explaination to fighting common sense protections: "Some people" think getting the vote irrespective of it's validity, is more important than the integrity of our elections.

The majority of Minnesotan's disagree, and will prove by passing this amendment.

Shucks

I think you just successfully proved a point I have been making for some time. IDs are easy to get, whether "valid" or not. Regardless, I'd still like to know if Pedro/Jose/Carlos/Antonio voted using any one of those fake IDs or whether anyone really wants to pay for all of the equipment, training, and staff that would be required to check those IDs at the poll booths. Finally, the potential constitutional amendment does not provide for the measures necessary to either prevent photo ID fraud or to identify it at the poll booths. You've brought up a completely different problem and pointed out that your supposed solution is really no solution to the original, imaginary problem.

In other words, pointing out the existence of potentially lots of fake IDs doesn't help your case, Mr. Swift.

If you can't win the

If you can't win the argument, disenfranchise those who disagree with you. Supporters of this law, and of voter-ID laws generally, may contend that every vote cast by someone who should not be on the voter rolls casts doubt on the election's outcome. But if so it ought to be equally true of every vote not cast by an eligible voter kept away from the polls.

Not so fast.

"So with 23,000 potential fraudulent IDs, shouldn't we know who's job it is to hold accountable? Neville said that's law enforcement's job, but law enforcement doesn't give anyone to call up.

It's a frustration shared by state Rep. Steve Drazkowski, who last year passed a bill that required vehicle services to share those fraudulent names with human services. But it won't happen until July 2013 -- a year from now."

Bankrupt in all respects

We are talking about amending the state constitution, which is intended to serve ALL the people of Minnesota. We have recently had two recount elections witnessed by a bipartisan group of people looking for fraud who said they didn't find any fraud. Now the republicans want to amend the constitution just because they now believe their own fear mongering. Let's not amend the constitution just because the republicans feel like their sky is falling. Republicans had a chance to lead in the last legislative session, but chose to do their pet social engineering projects and sexual escapades instead. Out of ideas, out of money, and out of leadership the republicans prove over and over they are bankrupt in all respects. The voter ID project is just another example. The republicans have presented their priorities to the voters now voters the choice is yours in November.