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Proposed Minnesota Voter ID Amendment: Classic Bait and Switch or Concise Ballot Summary?

In April 2012, the Minnesota Legislature approved a proposed amendment to Article VII, Section 1 of the Minnesota Constitution. The proposed amendment would add two subsections as follows:

"(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."

In the same session, the Legislature also approved the language of the question to be placed on the November 2012 general election ballot concerning the proposed constitutional amendment:

"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?"

On May 30, 2012, petitioners filed a petition under Minn. Stat. § 204B.44 seeking to strike the ballot question and to enjoin the Secretary of State from placing the question on the November 2012 general election ballot. Petitioners alleged that the Legislature's ballot question "is misleading because it does not accurately and factually describe the proposed amendment, and because it fails to describe at all certain important substantive provisions contained in the amendment."

The House and Senate argued that there is no requirement that all substantive provisions of the proposed amendment be included on the ballot. Indeed, according to the House and Senate, it has been the longstanding practice in Minnesota to describe only the "general purpose" of proposed constitutional amendments when those amendments are submitted to the voters in the form of ballot questions.

The court determined that review was limited to determining whether the ballot question as framed was "'so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit the law to a popular vote.'" Breza v. Kiffmeyer, 723 N.W.2d 633, 636 (Minn. 2006) (quoting Stearns, 72 Minn. at 218, 75 N.W. at 214).

The ballot question does not explicitly address the constitutional provision applicable only to voters voting in person (who must present valid government-issued photographic identification) nor does it explicitly address the "substantially equivalent identity" provision (which applies to all voters). Rather, the ballot question constitutes an amalgamation of the individual provisions of the proposed constitutional amendment which, taken together, can fairly be characterized as generally requiring photographic identification for all voters.  

The court found that the omission of "or substantially equivalent" does not render the ballot question misleading under our "high standard," Breza, 723 N.W.2d at 636, because "substantially equivalent identity . . . verification" means just what it says. By definition, all voters would be required to produce valid government-issued photographic identification, or something that is substantially alike in signification or import or that is virtually identical to a valid government-issued photographic identification. Because all voters would present valid government-issued photographic identification or something that is virtually identical to such identification, the ballot question does not mislead voters.

Dissenting justices, however, called the legislature's action a classic bait and switch.  The dissent argued that the language of the ballot question drafted by the Legislature at issue in this case deliberately and materially misstates the language of the proposed amendment.  It further argued that the sufficiency of the ballot question at issue here was a question of first impression for the court.

The plain language of the text of the proposed amendment passed by the Legislature differs markedly and materially from the proposed amendment the Legislature's ballot question describes. From the ballot question, voters would reasonably conclude that the proposed amendment would allow a voter to receive a ballot on the presentation of any valid photo identification. They would be wrong.

The court dismissed these misrepresentations as merely situations in which the ballot question could be clearer, and attributes them to the Legislature's attempt to concisely summarize the proposed amendment as a ballot question.  The dissent, however, argued that the words of the ballot question were phrased to actively deceive and mislead. By adding three words - "voting in person" - to the phrase "all voters" and two words - "government-issued" - to the phrase "valid photo identification," the ballot question would have been no less concise but far more accurate. The Legislature's failure to add these five words should have been fatal to the ballot question. subscribers can access the Lexis enhanced version of the League of Women Voters Minn. v. Ritchie, 2012 Minn. LEXIS 438 (Minn. Aug. 27, 2012) decision with summary, headnotes, and Shepard's.

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