Ever since the Legislature first began considering the proposed voting amendment early this year, Secretary of State Mark Ritchie and his staff have used nearly every venue available to hammer away on one key point.
The innocuous-sounding requirement that voters must show a photo ID at the polls, they say, is only a small part of far-reaching language that actually would end up dismantling or significantly altering absentee balloting and Minnesota’s popular Election Day registration system.
Ritchie made that point again Thursday in a MinnPost Community Voices piece, urging every voter to “carefully study the language of the proposed amendment on elections …. You might be surprised.”
But the big question: Is Ritchie right in his interpretation of what the proposed constitutional amendment would do?
Many voting amendment opponents think so, including a coalition of groups and individuals that include former Vice President Walter Mondale, former Gov. Arne Carlson and several public officials. The group Our Vote Our Future is leading the anti-amendment campaign.
Most recently, two Minnesota Supreme Court justices weighed in on the matter, issuing vigorous dissents in two court cases that cleared the way for the amendment to appear on the November ballot in the form its Republican backers had hoped. One dissenting justice, Alan Page, labeled the amendment a “classic case of bait and switch” for not disclosing the far-reaching impact of the election changes.
Not true, though, argue the amendment’s proponents, including two key legislators and the citizens group Minnesota Majority, which runs a committee campaigning to pass it. They say the amendment was carefully worded to preserve Election Day registration and absentee balloting, among other forms of voting that Ritchie says could be affected.
Rep. Mary Kiffmeyer, a former secretary of state and one of the sponsors of the ballot initiative, contends that “the essence of the constitutional amendment is Photo ID … pure and simple.” Rep. Keith Downey, in a recent Pioneer Press op ed piece, criticized Ritchie’s descriptions of the measure’s consequences, calling them “pure scare tactics” and “outlandish partisan politics.”
Most at issue is the legal meaning of six words (shown in boldface) in the last sentence of the amendment’s language: “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.”
Does phrase hurt or help?
Ritchie and amendment opponents argue that the short phrase is the reason that many of the elections systems that Minnesotans rely on today would have to end.
Kiffmeyer and other supporters, however, say the language is actually the key to keeping Election Day registration and not- in-person voting intact.
Doug Chapin, an elections expert at the University of Minnesota, takes a more cautious view than either the advocates or opponents of the amendment.
He said there’s no way to be sure how absentee, mail-in or military voting would be affected by the “substantially equivalent” language, or what will happen to Election Day registration.
“The first question that has to be answered is what does ‘substantially equivalent’ mean?” he said, noting that the interpretation of a seemingly common-sense string of words in legislation “can be big.”
And if voters approve the measure, both sides are prepared for more Capitol fights over enabling legislation that would be required to implement it — and for eventual lawsuits.
“In some ways, they’re both right,” Chapin said. “It’s an ID law which could result in major or significant changes to Minnesota election law, but … we won’t know for sure who’s right, or if either one of them is right, until” it passes in November, is defined by the Legislature and challenged in the courts.
“The devil is in the details,” he added.
Supporters, opponents make their case
Both sides can make cases for why their respective interpretations of the amendment’s potential effects are correct.
Ritchie and his team are convinced the proposed amendment could spell doom for same-day registration — a process that some say sets Minnesota ahead of most states in terms of election administration.
To the secretary, requiring a photographic ID to vote isn’t the amendment’s intended effect, contrary to what Republicans repeated throughout the laborious legislative and legal journey it took to bring the question before voters.
“It’s consistent with 10 or 12 years of other efforts to eliminate Election Day registration,” he said.
Through the legislative committee process, Ritchie and his staff constantly pointed out what they see as the amendment’s potential flaws.
By some estimates, the amendment could change how nearly 1 million Minnesotans cast their ballots, all because of the six disputed words.
Under current law, Election Day registrants’ eligibility is fully verified after their ballots have been cast and counted, Ritchie said.
To fully verify eligibility, a non-forwardable mailing, called a Postal Verification Card, is sent to the addresses provided by all newly registered voters who applied early or on Election Day. The office also checks information against state and federal databases, some of which require special access.
With the equivalency language in effect, Ritchie said, it’s difficult to imagine Election Day verification at a polling place that would be “equivalent” to pre-registration, thus forcing about 540,000 voters to cast provisional ballots.
With a voter turnout of nearly 3 million in the 2008 presidential election, Minnesota’s election system could become clogged with provisional ballots — which wouldn’t be counted until after a voter provides the proper identification or eligibility information.
Under such a system, election results in close races could be delayed for days.
“Nobody’s going to know who won any of the elections [for days] afterwards,” Secretary of State staffer Beth Fraser told a legislative committee in February. “I know that people are on pins and needles on Election Night. That feeling is going to last for quite a while if we don’t know for … days who won anything in Minnesota from governor down to school board.”
Following the same logic, Ritchie also questions how the state’s 250,000 military, overseas, mail-in and absentee voters could possibly provide the “substantially equivalent identity and eligibility verification” as someone who presents an ID in person to an election judge at the polling place.
“Other states have always exempted those not voting in person because … how would you subject somebody in Thailand or somebody in Kuwait City or somebody in Bogota, Colombia, to the same identity and eligibility verification process as somebody walking into your township in Cottonwood, Minnesota?” he said.
And with these significant changes to voting systems, opponents say, come equally significant costs.
A report last week from Citizens for Election Integrity Minnesota, which opposes the amendment, estimates that rolling out the new system could cost at least $36.5 million and possibly as much as $77.6 million for state and local governments.
The costs alone for preserving Election Day registration — based on scenarios ranging from its total elimination to requiring significant technological investments to save it — range from $23 million to about $50 million.
If for some reason Election Day registration were completely eliminated, Minnesota’s exemption from the National Voter Registration Act would be revoked.
That would require the Department of Motor Vehicles and agencies that provide public support to offer and track voter registration services. “[T]he cost of losing the NVRA exemption, which is unprecedented, could reach millions of dollars,” according to the report.
“It’s interpreting one sentence, but I think it is fair to raise the concern,” said Steven Carbó, a state advocacy director at Demos, a New York-based think tank. “It’s a legitimate concern that Election Day registration in Minnesota could be unraveled, and if it is unraveled, one of the consequences could be losing the NVRA exemption and having to create something that doesn’t exist today.”
‘Solutions’ to the ‘problems’?
Kiffmeyer vehemently denies that the proposed amendment would end or alter same-day registration or complicate not-in-person voting.
And in the time since the session ended, supporters have offered a clearer picture of how the forms of voting that Democrats say are in jeopardy would continue.
Dan McGrath, executive director of Minnesota Majority, which supports the amendment, ticked off in an interview a list of potential solutions to DFLers’ complaints.
“It presumes that voters will be verified instantly in the polling place and given a live ballot,” said McGrath, who helped write the amendment. “Only voters who lack ID will be given a provisional ballot. Ninety percent of Election Day registrants will notice no difference in the process.”
The Postal Verification Card system could be eliminated next session, he said, and technological upgrades could be added at polling places to ensure only eligible voters cast a ballot on Election Day.
Or, a so-called paper “challenge list” of ineligible voters — such as felons and non-citizens — could be compiled from database information and kept at polling places to disqualify same-day registrants who don’t meet the criteria to vote. That arrangement would negate the need for expensive technology upgrades.
The supporters also scoff at the eye-popping cost estimates suggested by opponents of the amendment.
“Ritchie claims the photo ID ‘system’ would cost local governments millions of dollars and raise property taxes,” Downey wrote in the Pioneer Press op-ed article. “What system? Voters just bring their ID. There will of course be costs for training, voter outreach and free state IDs. Well worth it. But nothing in the legislation requires local governments to buy new technology.”
McGrath also takes a common-sense look at the “substantially equivalent” language.
“Substantially equivalent … means as close as you can get, given the circumstances,” he said, noting that not-in-person voters like those who use mail ballots might simply show a witness their ID and write an identification number on the ballot.
But that doesn’t mean he and Kiffmeyer aren’t prepared for lawsuits, as well.
“I don’t think it matters one bit what language it was,” Kiffmeyer said, referring to the “substantially equivalent” wording. “They were going to sue no matter, or they are inclined to sue no matter what, because that’s what they’ve done in many other states.”
Election outcomes at stake?
Through hours of debate and public testimony, as well as numerous amendments and counter-proposals, Democrats and Republicans never managed to agree on the actual motivations behind the voting amendment.
Each side accuses the other of partisan rhetoric and veiled motives meant to gain the political upper hand in increasingly high-stakes elections.
Opponents believe the voting amendment would disenfranchise many citizens – students, minorities, the poor, the elderly and the disabled — by ending same-day registration or putting barriers between voters and valid forms of identification.
Perhaps that’s why the outcome matters so much to the two sides.
DFL Rep. Ryan Winkler, an attorney who repeatedly challenged Kiffmeyer on the House floor, is outspoken.
“It’s not a conspiracy, but it’s an effort by well-funded conservative groups and Republican politicians to create restrictions on voting that will help Republicans win elections, and any denial of that fact is a lie,” Winkler said in an interview.
The other side’s view: “This is highly politicized. I think it’s clear that the DFL politicians in Minnesota are trying to block every effort to stop ineligible voters from voting,” said Andy Cilek, co-founder of pro-amendment group Minnesota Voters Alliance.
“Why would they do that? Because I think they believe that gives them an advantage to keep their office and to keep their power,” he said. “I think that’s pretty obvious.”