This year’s shared text at Itasca Community College is “unSpun: Finding Facts in a World of Disinformation.” I recently delved into the book to prepare to participate in the college’s first event related to the book. My presentation focused on spin in the health-care debate, but I understand there will be a number of other presentations, including one on the Voter ID amendment.
Minnesota’s Secretary of State Mark Ritchie offered up a prime example of spin on the Voter ID amendment in a recent MinnPost Community Voices piece, “Minnesota voting amendment would change much more than you might think.”
‘unSpun’ itemizes a number of warning signs that suggest you may have entered a spin zone; here’s the first: “If it’s scary, be wary.” As the authors explain, “raw appeal to fear is often used to cover a lack of evidence that a real threat exists, and should alert us to take a hard look at the facts. Are we being warned or deceived?”
Writing in MinnPost, Ritchie sounded the alarm that the Voter ID amendment will “eliminate the right of Minnesotans to register and vote on Election Day as we have done for 40 years.” Minnesota is one of nine states that allow Election Day registration and 500,000 Minnesota voters (over 15 percent of those voting) tend to do so in major elections.
A scary scenario
Ritchie paints a scary scenario where all of these voters would need to cast a provisional ballot which would not be counted until their registration was verified by multiple government databases. His office has suggested that this process could take up to 10 days, or more. If true — and here’s the frightening part — election results might not be confirmed for weeks.
Obviously, Minnesotans would not tolerate this delay. Thus, it makes little sense that legislators drew up and voted on constitutional language with this result in mind. Nonetheless, Ritchie has been making this scary claim across the state for months. As the authors of ‘unSpun’ direct us to ask: Are we being warned or deceived?
Ritchie insists that the amendment will without question lead to this worst-case scenario. He never admits that there may be alternative ways to interpret or implement the amendment language. But assuming the amendment passes, it’s hard to imagine that he will stick to this story. Indeed, assume Republicans and Democrats eventually come together to pass a law implementing the amendment in a way that retains the current Election Day registration and voting process. Will Ritchie stand by his current position and argue the law is unconstitutional and then refuse to implement it? Doubtful. As I’ll discuss below, expect his views to evolve after the amendment passes.
A more reasonable interpretation
There is a much more reasonable interpretation of the amendment that does not require upending the current voting process. And based on conversations I’ve had with the chief authors of the amendment, the language is indeed not meant to radically change the current process. For nearly every voter, including those registering on Election Day, the amendment simply requires you to show a photo ID to vote.
Here is the disputed language from the amendment:
“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.”
According to Ritchie, this language requires Election Day registrations to be “verified” just the same as regular registrations before their ballot is cast or counted. This would require crosschecking with multiple government databases and possibly mailing out non-forwardable post cards. To be fair — something Ritchie appears unwilling to reciprocate — this is not an entirely unreasonable reading of the amendment. The registration process is certainly part of what can be called “eligibility verification,” two words in the amendment.
However, there are verification requirements and procedures election officials must follow when processing registrations. And then there are verification requirements for voters when voting. The more reasonable interpretation of the amendment language is that it centers on what voters must do to verify their identity and eligibility when they go to vote, not what state officials must do to verify registrations.
Indeed, the amendment language is all about the process applied when people are actually voting and what is required of them when they vote. And there is no mention of the registration process.
Minnesota Supreme Court jurisprudence directs that amendment language adopted at the same time “must be construed together, as a whole.” See State ex rel. Marr v. Stearns, 72 Minn. 200 (1898). The amendment adds two new paragraphs to article VII, section 1 of the Minnesota Constitution — labeled (b) and (c) — and they are clearly meant to be read together. Paragraph (b) opens with “All voters voting in person” and paragraph (c) opens with “All voters, including those not voting in person.” For people voting in person, paragraph (b) creates a requirement on voters to present a photo ID. The disputed language in paragraph (c) recognizes that not all people can or will be voting in person with a photo ID to verify their identity and eligibility. Some people may mail a ballot or vote absentee. Still others may be unable or unwilling to present a photo ID and, consequently, submit a provisional ballot on Election Day. Paragraph (c) provides the flexibility to address these situations. Instead of requiring all voters to provide the same photo ID verification information required in paragraph (b), paragraph (c) allows certain voters to verify their identity and eligibility with something that is “substantially equivalent” to a photo ID.
Thus, the disputed language is actually all about providing the necessary flexibility to accommodate different types of voting and special voter circumstances while at the same time maintaining a high standard for verifying identity and eligibility of all voters when they vote.
Drafters intend language to provide flexibility
And this is exactly what the chief authors of the amendment had in mind. Here’s how Rep. Mary Kiffmeyer explained the language on March 8, 2012, before the Government Operations and Elections Committee.
“We don’t expect our military voters to come home from Iraq to show their photo ID. We understand that. We understand there are others who are unable to leave their home, and substantially equivalent allows us to have the necessary court-approved flexibility. In other words, in front of the U.S. Supreme Court or other state supreme courts when there have been some necessary accommodations for those kinds of unique circumstances we have been able to make those allowances, and that’s why substantially equivalent verification is a very important phrase … .”
Sen. Scott Newman also explained the language at a March 1, 2012 Senate Finance Committee hearing. He clarified, “This phrase does not mean identical. Rather it is intended to give the Legislature some leeway in determining what type of photo ID, proof of identity, or other future technology that would be required to prove a voter is eligible to vote and recognizes the difference between in-person and not-in-person voting procedures.”
Drafters say Election Day registration will remain
The authors also spoke clearly to the question of whether the language ends Election Day registration. After Ritchie testified that this is “a proposal to replace Election Day registration with provisional balloting,” Kiffmeyer responded, “After these repeated statements, I think it’s really important to speak to this. There is nothing in this constitutional amendment that does away with Election Day registration. It does not.”
Similarly, after Beth Fraser — director of government affairs for the Office of the Secretary of State — suggested the language would end Election Day registration and delay election results, Sen. Newman responded, “While Ms. Fraser is sitting here, either she misspoke or I misspoke. But I do want to correct the record in terms of provisional voting, or I should say same-day registration. It was never my intent to have every new same-day registrant vote provisionally. If they show up with the proper identification, their vote should count.”
‘Great weight’ given to Legislature’s interpretation
Fortunately, if there are ever legal disputes over the language of the amendment, a Minnesota court will give far greater weight to the Legislature’s interpretation than the slanted view of the Secretary of State. When the 2013 legislative session begins, the Legislature will have the first chance to interpret and apply the language by passing legislation to implement the amendment. The Minnesota Supreme Court, according to prior caselaw, should give “great weight” to the interpretation embodied in the Legislature’s implementing legislation. In State v. Peterson, 159 Minn. 269 (1924), the court explained, “the legislative exposition of a constitutional provision, following closely upon the adoption thereof, may well be supposed to result from the views which prevailed among the framers of the provision.”
Judges might also look around to laws in other states for guidance. If they do, they will find language from Montana that allows an election judge to rely on a photo ID or some other identification “to verify the voter’s identity and eligibility.” Additionally, Missouri’s voter ID requirement reads: “Before receiving a ballot, voters shall establish their identity and eligibility to vote at the polling place by presenting a form of personal identification.” This language is remarkably similar to the Minnesota amendment and is clearly focused on what voters must provide to the election judge to verify their identity and eligibility when voting.
Don’t expect a suit over ‘substantially equivalent’
That’s not to say we should expect a lawsuit over the meaning of “substantially equivalent identity and eligibility verification.” (Yes, other lawsuits are certainly possible.) The only reason this language is in dispute today is because it’s a key part of the opponents’ strategy to sway people against voting for the amendment. To defeat the amendment, opponents need people to believe their myth that the amendment will radically change the way we vote and disenfranchise voters. But if the amendment passes, opponents’ interpretations of the amendment will likely evolve to allow for the more reasonable interpretation I’ve just outlined.
To be sure, amendment opponents won’t be filing lawsuits to make sure their scary prophecy becomes reality. Instead, we’ll see opponents working with supporters to implement the amendment in a way that avoids radical change and garners broad bipartisan support. That will require a law that (1) upholds our current Election Day registration process; (2) protects easy access to the ballot for all voters — especially for military, low-income and elderly voters; (3) minimizes burdens on local governments; and (4) allows a measure of flexibility for certain voters who don’t vote in-person or are unable to present a photo ID.
The end result of this new law: Minnesota voters will have greater confidence in their election system. Voters will have confidence that everyone who wants to vote can vote and, when they do vote, their vote counts.
Peter J. Nelson is the director of public policy and associate general counsel at Center of the American Experiment.