As secretary of state, I hear from many who question my assertion that the voting amendment on the ballot this fall will put an end to Minnesota’s law permitting the updating of voter registration and registering for the first time in the polling place on Election Day – a practice commonly called same-day registration. Since more than 500,000 citizens use this service in big election years, and more than half of all Minnesotans have used same-day registration at some point in their voting history, this obviously would be a major change that goes far beyond the question of presenting an ID to vote.
Of course, eligible Minnesota voters can register any time, day or night, including Christmas, New Year’s and Election Day. Mailing in a voter registration can be done at any time, and in a few places this can be done over the Internet.
The proposed election-related amendment would not stop anyone from registering to vote on Election Day (or Christmas) but it would stop voters from being able to cast their ballots and have them counted on Election Day as they have been allowed to do since the early 1970s. Here is the specific change to Minnesota’s election law that is proposed for our Constitution:
“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.”
So what would this change in our constitution mean to the more than 500,000 Minnesotans who normally use same-day registration before voting on Election Day? Here’s how this would affect you as an individual voter:
Under current law you have to update your registration if you move, even across the hall in an apartment building, and if you have a change of name due to change in marital status other reason. Most Minnesotans choose to do this updating of their registration on Election Day in the polling place. You fill in the regular voter registration form and sign an oath that all of the information you are providing is accurate. Once you have completed this part of the process you receive your ballot, complete it in private, and then cast your ballot for inclusion with the Election Day tally of voters.
The morning after Election Day local and state officials begin the process of double-checking all of the new registrations, using nine different databases and information sources to confirm the information provided. If anything is not completely accurate, local officials and law enforcement flag the registration for further investigation. In addition we use a non-forwardable postcard to confirm residency. To do this process carefully and thoroughly takes several weeks.
Same-day eligibility verification is impossible
Under the proposed amendment, no voter registering in their polling place on Election Day could cast their ballot until election officials could double-check the accuracy of all of their information in the same comprehensive way that is used on all other voter registrations. Since it is not possible to mail out a non-forwardable postcard and have it be delivered or returned within the same day, this cannot be done. Equally important, many of the databases used by election officials are not public and can only be used by authorized individuals. Finally, the time it takes to check all of the mandated databases is significant and cannot be done while someone is standing in line.
For example, voter registration information is cross-checked with data from the Social Security Administration, the National Death Registry, the Minnesota Department of Health, the Department of Public Safety, Drivers and Vehicle Services, the United States Postal Services National Change of Address database, the Department of Corrections and the Minnesota Supreme Court Administration.
If it is not possible to check everything and to mail out the non-forwardable postcard, then the voter’s ballot cannot be cast or counted until they have met the proposed constitutional requirement that “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.”
Ballot would be provisional until hurdles are cleared
If a new voter registration form clears all hurdles and all provisional balloting paperwork is in order (from experience, 4 percent will have a fatal flaw in our paperwork) then your provisional ballot will be opened and put into the optical scanning ballot counter. If there is no problem with your ballot it will be counted by the machine. If there is a problem with your ballot – perhaps an over vote or stray mark – the machine may reject it and the provisional balloting board will need to determine your intent and then re-create your ballot.
The good news about this system is that voters who are just registering in their polling place do not have to go down to the county courthouse a second time to complete this process. It will happen automatically if everything is in order. The Help America Vote Act (HAVA) also mandates the creation of a “provisional ballot tracking system” so that all of the half-million same-day registrants can track the progress of their provisional ballot. In addition to the mandates included in HAVA from which Minnesota would suddenly be no longer exempt, Minnesota would also be required to follow the National Voter Registration Act (often called “Motor Vote”) if it adopts provisional balloting. Thanks to former Rep. Tim Penny, Minnesota was exempted from many of these onerous federal laws – but these exemptions are endangered by the proposed amendment.
The problem with a ‘substantially equivalent’ standard
The application of a “substantially equivalent” standard to those voters not voting in person also raises concerns. We have nearly 250,000 military and civilian absentee voters, township mail-in voters and voters in nursing homes and other medical care facilities that are not voting in-person.
It is not clear how a soldier in Baghdad or Kuwait City might meet the same requirements for establishing their residency, eligibility or identity as someone walking into their polling place in St. Cloud. If they cannot meet the “substantially equivalent” standard as required by the proposed amendment they would find it difficult if not impossible to vote. This difficulty may explain why every other state in the nation that has proposed new voting regulations similar to those being considered in Minnesota have automatically exempted military and almost all absentee and other mail-in voters.
It is not possible to apply the same regulations on voters who are using the U.S. Postal Service to mail in their ballots from overseas or from their township in Kittson County. Repeated attempts by some lawmakers to add these normal exemptions (military and absentee voters, seniors in nursing homes, township voters, Amish, etc.) were rejected — and so we have a proposed amendment that would end mail-in voting by townships and create a nightmare for folks trying to find a notary public or some trusted government official to certify their identity, residency and eligibility in Baghdad.
Kittson County has estimated that it will cost them $250 per voter to replace their current system of all-mail-in voting with regular polling places in order to comply with this amendment. Ramsey County has detailed the impact of this proposed amendment on military voters, and a number of veterans’ groups have spoken out about the problems that can be created for active-duty military personnel if there is a requirement of equivalency in the regulation of in-person and absentee voting.
Strong support for our current system
Most Upper Midwestern states now use Election Day registration, as do a number of Western and New England states. Idaho, Montana and Wyoming have been important partners in promoting Election Day registration over the years — along with Wisconsin, Iowa, Maine, New Hampshire and Connecticut.
Voters and local election officials like our system. It makes it possible for us to be ranked No. 1 in voter turnout in the nation year after year. It helps young people to get started voting and voters who are not as mobile as they used to be to stay active in the democratic process. This strong support is evident not only in Minnesota, where more than half of all voters have used this service, but in other states as well.
When the legislature of Maine tried to kill same-day registration last year, the voters put this on the ballot and by a huge margin – 61 percent to 38 percent – they overwhelming rejected the legislature’s effort. This very strong show of support for same-day registration is also what we find in Minnesota.
There is an underlying partisanship to this entire debate that is a departure from our tradition of building consensus on major changes in election law. Govs. Arme Carlson, Tim Pawlenty and Mark Dayton have all stated this in both public statements and in veto letters during the past two decades.
Major changes — forever
It is important to educate the public about what is actually being proposed. What the amendment proposes to do is eliminate the right of Minnesotans to register and vote on Election Day as we have done for 40 years.
The words “Election Day registration” do not appear in the amendment – nor do the words “absentee voting,” “military and overseas voting,” “township all-mail voting,” “religious objections,” among others. The kinds of exemptions that other states take for granted are missing, like senior citizens in nursing homes, the Amish, servicemen and women, and people with certain physical disabilities. The cost to local taxpayers or how this will be paid for is missing. Also missing is any mention of the new technology that has made photographic identification something that is easily faked and commonly obtained on a fraudulent basis.
What is important about constitutional amendments is that they are forever unless changed by a vote of the citizens or found unconstitutional. No legislature, not even one with a unanimous vote, can change a constitutional amendment, and no governor, by veto pen, can change a constitutional amendment.
We have always given special treatment to certain classes of voters. For example, starting in the Civil War we began to allow soldiers and others serving in military to vote by mail. It would be a giant step backward to use the Constitution to mandate “equal treatment” for a Red Bull in Kuwait City and someone in Lake City. We treat voters in nursing homes differently, often going out to where they are living and allowing them to vote from their rooms or even hospital beds if needed. To avoid residents of townships driving 80 miles potentially in a blizzard, we allow them to drop their ballot in the mail. Minnesota election law is clear on these differences, and most people support them.
Potential costs, and chaos, of provisional balloting
Some note that 43 other states use provisional ballots. That is correct. We are currently exempted, and people in the states not exempted are jealous and express this to me whenever we gather as secretaries of state. But the most common concern that other states mention to me is the high cost of litigation that comes with all of the legal challenges to provisional ballots. With a nationwide average of 30 percent never counted, this means many votes are discarded unless there is a legal challenge. The last election challenged due to provisional ballot disputes in the 2010 elections just got settled in Ohio a few months ago – after 15 months of legal wrangling that cost taxpayers.
Since our state has a special “Errors and Omissions” law that allows any citizen who has their ballot rejected to appeal to the Minnesota Supreme Court, the chaos and high cost to taxpayers experienced in Ohio and elsewhere could be magnified in our state.
Changes welcome — but not these
We have some important improvements to make in our election system, and I welcome all opportunities to work on them. For example, I am concerned about felons who are voting before they are done with their probation; our bipartisan Election Integrity Taskforce has made a number of excellent proposals to the Legislature to address this concern. We advanced some of our policy proposals on this issue during the 2012 legislative session but ultimately our bill was denied a hearing in one key committee, despite strong bipartisan support.
During the last legislative session I also worked to build bipartisan support for a very low-cost visual verification approach to be used by poll workers and election judges that would have put Minnesota on the leading edge of election integrity and technological modernization. Other states — including Maine, Colorado, and Nevada — have expressed interest in this idea and may leap ahead of Minnesota. To keep Minnesota No. 1 in both election turnout and election administration, I will be bringing this proposal back to the Legislature next January.
Challenges and opportunities
Over the past 150 years Minnesotans have created the best election system in the nation, and we have kept up the pace of innovation year after year. With the evolution of new technology and demographics, we are facing new challenges and opportunities. We are going to have a larger and larger number of older voters. What is the best way to keep them involved in the community at all levels, including voting? We are going to have a new spike in young voters – not as large as the post World War II boom, but significant. How do we make sure they are welcomed into full participation in our democracy as they turn 18?
Technology is making it possible to inform and educate people in many new and exciting ways. It also comes with the challenges of cost and certain vulnerabilities. In this new digital world we can make many things easier, like on-line voter registration. But this digital age also brings with it hackers and computer system meltdowns that must be addressed with the utmost care.
Read the full text
Keeping Minnesota No. 1 in elections must be our shared goal. We cannot rest on our laurels, nor can we let extreme partisans of any stripe tear apart our system.
Since the Minnesota Supreme Court has ruled that the actual language will not be printed on the ballot, it is up to each voter to find and carefully study the language of the proposed amendment on elections.
I urge all Minnesotans to read the full text. You might be surprised.
Mark Ritchie is Minnesota’s secretary of state.