Legislative commission opts for unprecedented approach to defend Photo ID amendment

Senate Majority Leader Dave Senjem and Legislative Coordinating Commission Chairwoman Michelle Fischbach at Thursday's LCC meeting on whether to retain outside counsel to intervene in the Photo ID lawsuit.

For the first time in state history, the Minnesota Legislature will try to intervene formally in litigation to defend one of its key priorities — the Republican-backed Photo ID constitutional amendment headed for the November ballot.

Senate and House members, meeting as the Legislative Coordinating Commission, voted Thursday to spend $18,000 to hire outside counsel to join the lawsuit, brought by groups who oppose the amendment.

The GOP leaders said the Legislature, which passed the amendment along rough party lines in April, needs to be a part of the suit in order to have its governmental authority adequately represented.

 The two authors of the amendment in the House and Senate also joined the lawsuit separately last week and will be represented by a privately financed attorney.

The voice vote to hire the Winthrop & Weinstine law firm appeared to fall along party lines among the 12 committee members, following less than an hour of debate.

Zellers, Senjem defend approach

Afterward, I asked House Speaker Kurt Zellers and Senate Majority Leader Dave Senjem why the House and Senate Republican caucuses didn’t hire their own attorney to join the lawsuit.

“The Legislature has spoken on this issue, albeit certainly not unanimously, but they have spoken,” Senjem said. “The Legislative Coordinating Commission is, I think, the most appropriate venue to have not only this discussion but to have the funds for the lawsuit coming from.”

The $18,000 will come out of the commission’s roughly $700,000 operating budget.

Zellers argued the commission was an appropriate way to take on the lawsuit because the fundamental issue at stake is fighting for the whole Legislature’s authority to craft and draft constitutional amendments.

The lawsuit — brought forward by the League of Women Voters and the ACLU of Minnesota, among others — asks the Supreme Court to block the amendment from appearing on the ballot because they say the wording of the question is misleading.

The amendment can be broken into three parts: a simple ballot question designed to briefly describe the legislative intent, more specific constitutional language absent from the ballot, and enacting language passed by the next Legislature.

The groups involved in the lawsuit allege that the ballot question doesn’t adequately inform voters that, if passed, the amendment would implement two-step provisional balloting and could end Election Day registration. Supreme Court arguments are slated to begin on July 17.

Former Gov. Arne Carlson blasts move

Former Minnesota Gov. Arne Carlson, a Republican who frequently has strayed from party positions in recent years, questioned why the Republican-led intervention couldn’t be financed by the state party or one of the GOP caucuses.

“What in the world are they doing intervening in lawsuits?” he said in an interview Wednesday. “As a taxpayer, I’m very offended.”

Carlson, who served as governor from 1991 to 1999, wondered whether it was even legal for the LCC to pay for outside counsel.

“Where then do they have the authority to appropriate or spend that kind of money?” he said. “It should come from the coffers of the Republican Party.”

A staffer at the Legislative Reference Library, who worked with an LCC attorney, said the legality of the move is extremely complex. Senate Counsel Tom Bottern, however, said the commission had the ability to appropriate funds.

Still, House Minority Leader Paul Thissen criticized the “unprecedented” legal move.

Rep. Paul ThissenMinnPost photo by James NordHouse Minority Leader Paul Thissen was the most vocal opponent of spending public money on an attorney to intervene in the lawsuit.

“I’m going to be voting against [the resolution] because I don’t think we should be spending more taxpayers’ dollars on the Legislature to be talking about this kind of obsession with constitutional amendments,” he said.

Carlson also questioned whether Republicans chose LCC financing because the Senate Republican Caucus is in fiscal trouble and the state GOP is mired in debt.

“[The Republicans are] looking for money, and they think the taxpayer is the one who should pay the bill, and I think that’s an outrage,” Carlson said.

But Senjem denied the charge and reaffirmed his belief that the commission was the most logical course for coordinating both houses’ approach.

“That’s what the LCC is for,” Zellers said after the meeting ended. “Whether it’s Democrats or Republicans in the majority, the Legislature’s authority needs to be affirmed. Not just one caucus or the other, it has to be the Legislature’s authority.”

GOP wary of secretary of state’s efforts

Republicans also have other, more practical concerns.

GOP Rep. Mary Kiffmeyer, the bill’s chief House author, said last week that she doesn’t believe that Secretary of State Mark Ritchie, a DFLer who opposes the amendment, would vigorously defend the Photo ID measure in court.

Senjem echoed that view.

“The secretary of state has been fairly public about his opposition to this, so the amount of energy and vigor that he will put into it through the attorney general’s office, I suppose, is in question,” he said.

 The attorney general’s office, which is representing Ritchie as a part of the executive branch, declined to also represent the Legislature in the suit.

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Comments (14)

  1. Submitted by Mike Downing on 06/15/2012 - 10:36 am.

    The Sec of State is unprecedented

    It is unprecedented that our Sec of State will not support & defend a Bill from our MN Legislature. Mark Ritchie is part of the Executive Branch who are constitutionally bound to uphold, defend & implement legislative bills.

    • Submitted by Jeffrey Maas on 06/15/2012 - 12:42 pm.

      To pick a couple of nits

      I’ll make no claim to being a constitutional scholar (especially as regards state constitutions), but I am curious as to the source of your claim that the MN SOS, as a member of the Executive Branch, is ” constitutionally bound to uphold, defend & implement legislative bills”. Here’s a link to the Minnesota State Constitution and I see none of that “uphold and defend” language in it. In fact, the language on executive branch duties generally and the SOS duties in particular, is quite sparse. http://www.house.leg.state.mn.us/cco/rules/mncon/mncon.htm

      The other point I’d note is that, even if you are correct about upholding and defending legislative bills, this wasn’t a typical bill the legislature passed; it was instead a proposed constitutional amendment, to be sent to the electorate. As such, it lacked the usual check-and-balance features of bills that become law. Specifically, it wasn’t signed into law by the governor, nor was it passed by a super-majority in the legislature (as would be required in the case of overcoming a veto in order to be made into law). Given those considerations, I’m not sure where the duties of the Executive branch lie in this case.

      I am open to persuasion if you can provide the source(s) of your assertion, but currently, I am skeptical of its merits.

    • Submitted by Dan Hintz on 06/15/2012 - 01:48 pm.


      The Executive Branch is bound to enforce laws, not legislative bills. A bill does not become a law until it is signed by the governor, the legislature overrides the governor’s veto, or as is the case here, with a constitutional amendment, the measure is approved by the public. Until one of those things happens, anything passed by the legislature has no legal effect, and does not create any duties for the Secretary of State or anyone else in the Executive Branch.

  2. Submitted by Connie Sullivan on 06/15/2012 - 12:02 pm.

    It seems that Ritchie, as Secretary of State, is a defendant himself, as holder of that office, in the lawsuit. I’m no lawyer. but he’s going to be defending his office, and it seems only fitting that, if any state officer defends the attempted constitutional amendment, it be the Attorney General L. Swanson, not Ritchie.

    But the issues here are: the GOP is trying to claim–with a LCC voice vote that obscured the fact that only Republican members voted to hire an attorney with taxpayer money; Democrats voted NO–that there is bi-partisan support in the legislature for such outside counsel hiring with taxpayer money. It was only the GOP, and not even all the GOP members of the legislature, who voted up this referendum item; no Democrat voted for it.

    And, the GOP’s attempt to prevent the third branch of government–the courts–from ruling on unfortunate, unnecessary, ALEC-cookie cutter laws they passed this last session. Everybody who really knows anything specific about elections and MN’s election laws and procedures is against this attempted constitutional amendment, for what huge harm it does without realizing what it does.

    Gov. Carlson is right: we should all be outraged that the GOP is using taxpayer money to try to salvage bad GOP legislation from constitutional scrutiny by the courts.

  3. Submitted by Tom Christensen on 06/15/2012 - 01:16 pm.

    The republicans “Free Voter ID System”

    The cost of the republican “Free” Voter ID system continues to go up. $18,000 is the “opening” lawyer fee. We haven’t even got to the “Free” cost of installing a program that will guarantee a “Free and perfect election”, in the eyes of the republicans. All this for a solution without a problem. This is all about their fiscal conservatism. It is okay to spend your tax dollars if it is for republican causes only. Lets just forget about the real problems this states has because they don’t have any solutions. The republicans are only working their issues trying to look relevant to voters. The republicans do have to keep going because they are so far into it now they need to save face. What is the next thing that will cause them anxiety? Lets look for something to deregulate. Wake up voters. The republicans are sending you a very strong message. It is your choice in November.

  4. Submitted by Lora Jones on 06/15/2012 - 02:18 pm.

    Go Arne!

    Perhaps the last sane Republican to hold state office, and even he wasn’t endorsed. (Remember Grunseth — one of the earliest adopters of do-as-I-say-and-not-as-I-do Family Values?) This latest is just one more instance of the sleaziness and irresponsibility of the current crop of CONs. It’s just bait and switch legislation and making other people front the money for their bad acting this time instead of frolicking with 15-year-old girls.

    • Submitted by Steve Rose on 06/16/2012 - 07:36 pm.

      Our own Jimmy Carter

      Arne Carlson has become to Minnesota what Jimmy Carter is to America, the irrelevant voice that refuses to fade. Who cares what he thinks?

  5. Submitted by Paul Udstrand on 06/15/2012 - 02:36 pm.

    This is not a “bill”

    Again, the funniest thing about this whole deal is that Republicans don’t seem to realize that this is not simply legislating by other means. They didn’t pass a bill, they passed a question that’s supposed to be answered by the electorate, and they did it without a single Democratic vote. This is not normal legislation that the AG or the Executive would have to defend and implement. The question is completely misleading. The Democrats offered amendment after amendment to clear up the language for hours and hours and the Republicans voted each suggestion down on strict party line votes. What I’d like to know is what kind of remedy the court can offer? Can the court re-word the question or do they have to send it back to the legislature?

    • Submitted by Steve Titterud on 06/16/2012 - 11:11 am.

      Reword it so it can go through to the voters? Oh no! That…

      would be legislating from the bench, now wouldn’t it?

      I’m sure those sound conservatives would be against that!

  6. Submitted by Michael Jacobs on 06/15/2012 - 03:25 pm.


    Does this then mean that they finally got the past-due rents paid???

  7. Submitted by Pete Barrett on 06/15/2012 - 05:10 pm.

    Send Lawyers Guns And Money

    For people who don’t like lawyers or spending government money, they sure spend a lot of government money on lawyers.

  8. Submitted by Clayton Haapala on 06/16/2012 - 09:57 pm.

    Question of authority?

    There is no question of the legislatures authority, here.. The lawsuit is about what they produced, and not that a bill was passed by them. They have no authority to have their crappie not be contested. (Heh, the spell check is fishy but you can tell what I meant.)

  9. Submitted by Kenneth Kjer on 06/17/2012 - 05:15 pm.


    I think the only conclusion that one can draw from this is that the GOP is not interested in the welfare of the citizens of the state, only pushing there own agenda.

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