Guest blogged by Ernest A. Canning
This week, the Minnesota Supreme Court heard the League of Women Voters’ argument against language set to be used in a ballot initiative this November which, if passed by the electorate, would amend the state’s constitution to require that valid, Government-issued Photo ID be presented at the polling place before voters are allowed to vote.
The initiative was placed on the ballot by the GOP majority in the state legislature, but, as we detailed earlier this month, the League has filed suit charging that the language used in the ballot question is extremely deceptive and that it fails to accurately explain how the constitutional amendment would change the voting system in Minnesota, while putting the legal rights of voters at risk.
During oral arguments (video clip posted below) in League of Women Voters of Minnesota v. Ritchie [PDF], veteran MN Supreme Court Justice Paul H. Anderson suggested that the issue before the Court, of whether the ballot question was misleading, was more profound than even the League’s attorney, William Pentelovitch, was characterizing it.
The hearing produced the following remarkable colloquy…
Question for you. Does this amendment affect voters’ rights?
PENTELOVITCH: Yes.
JUSTICE ANDERSON: Are voters’ rights fundamental rights enshrined in the constitution?
PENTELOVITCH: Yes.
JUSTICE ANDERSON: Isn’t it game, set, match when you look at what Hamilton said in Federalist 78; Madison said in the Federalist papers; Marshall said in Marbury v. Madison“¦that the judiciary is to guard against the ill humors that may emanate from the designs of men (and women we should add) and that may emanate from the people?
And so, if we’re talking about the standard of review, and we’re talking about something so fundamental as voter rights, don’t we at a minimum, look at it with a skeptical eye”¦because it goes to the heart of what the constitution is about?
The constitution is the people’s document, and the right to vote is an institutional way to peacefully revolt.
Justice Anderson later asked Thomas Boyd, the attorney representing the GOP controlled state legislature: “And voting rights are a fundamental right, is that correct?” Boyd conceded that voting “is a fundamental right…”
While one must be careful not to confuse questions posed during oral arguments by a single jurist with the ultimate outcome of a case, Justice Anderson has touched upon a vital, but untested issue that arises now that the GOP has sought to move from polling place Photo ID restrictions contained in legislation to polling place Photo ID restrictions by way of a voter-approved constitutional amendment.
‘Strict scrutiny’
As we explained in our original coverage of Ritchie, the task of establishing that Photo ID legislation is unconstitutional is relatively straightforward in cases where they run up against a particular state’s constitution which — like the one in Wisconsin — expressly establishes that voting is a fundamental right.
Under classic equal protection analysis, a statute that impairs a fundamental right is subjected to what is called “strict scrutiny.” That means, the proponents of a statute, which may affect that fundamental right, must establish that the legislation is narrowly tailored to achieve a compelling government interest.
In cases, like Weinschenk v. State (2006), it was impossible for the GOP in the state of Missouri to meet that high burden because cases of in-person impersonation — the only form of voter fraud that can be prevented by polling place Photo ID legislation — were demonstrated by the opponents of the ballot measure to be about as scarce as hen’s teeth. Indeed, the MO Supreme Court, in that case, expressly found that there had not been a single case of in-person voter impersonation in The Show Me State between the 2002 adoption of the federal Help America Vote Act (HAVA) and their 2006 decision.
Proponents of similarly crafted GOP restrictions in other states have been forced to admit the same thing: They are unable to cite a single instance of fraud in their respective states that might have been deterred by their attempted new restrictions on voting rights.
Photo ID constitutional amendments may be unconstitutional
In striking down Wisconsin’s photo ID legislation as a violation of his state’s constitution, Dane County Circuit Court Judge Richard Niess observed that the “right to vote belongs to all…citizens who are qualified electors, not just the fortunate majority from whom [the polling place Photo ID statute] poses little obstacle at the polls.”
But, as in Weinschenk in MO, Judge Neiss was faced only with a statute that ran afoul of a state constitution that treats voting as a fundamental right.
Should the same level of strict scrutiny be applied when Photo ID restrictions are advanced by way of a voter-approved constitutional amendment?
The answer, if one looks to last February’s narrowly drafted U.S. Ninth Circuit Court of Appeal decision in Perry vs. Brown [PDF], should be a resounding “yes”!
While Perry dealt with the issue of the right of same-sex couples to marry, the principle is the same. Per an earlier CA Supreme Court ruling, at the time voters went to the polls on Nov. 4, 2008, same-sex couples had a fundamental right to marry under the CA Constitution. The court, in Perry, reasoned that, once that fundamental right to marry had been recognized, voters could not go to the polls and strip them of that right.
If Justice Anderson is correct that voting is a fundamental right — and the attorneys for both sides in the League of Women Voters’ challenge in Minnesota are on record as having agreed to that fact — then it truly should be, as he averred from the bench, “game, set, match.”
Whether a majority of Anderson’s colleagues would agree remains to be seen.
Although, during oral arguments, the League’s able counsel told Justice Anderson that he was in agreement with his observations, Pentelovitch, appropriately, did not address that issue as it had not been raised in his briefs. In response to a query from The BRAD BLOG, Pentelovich explained that he did not want to create confusion between the issue of “the constitutionality of the amendment itself” and the deceptive “ballot question.” The issue of the constitutionality of the amendment itself, Pentelovitch told us, is “preserved for the future.”
If the measure should find its way onto the ballot and be approved, that future could potentially involve a case in which a record is made not only of the absence of in-person voter fraud in MN but the numbers of citizens who could be adversely affected because they lack the requisite, Government-issued Photo ID — a record that no doubt, as elsewhere in the nation, would reflect a disproportionate impact upon minorities, the poor, the elderly and students.
Video of the exchange between Justice Anderson and Mr. Pentelovitch, courtesy of the Uptake.org, follows…
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.
I’m confused, if its an amendment to constituion, how can it be unconstitutional, at unconstitional to the MN State constitution? Federally maybe, but if state constitution is so amended, isnt that then the constitution?
I’m from MN and I have this process. WE have no means of forwarding a referendum, like say California does, to get some legislation passed when legislature and governor cant deliver, but we have an easy way to get constituional amendment on ballot, legislator passes, governor has no veto and simple majority in ballot enshrines it as a part of our constitution…when really most of our recent amendment have nothing to do with basic rights (other than taking them away)these issues should generall be referendums..
Karen,
If a state constitution is amended in such a way that the amendment violates the voter’s or citizens’ rights, then that amendment, although passed by the voters, would be properly challenged in court. The court would rightly rule the amendment unconstitutional and it would be stricken from the state constitution.
Karen: The legal theory I’ve advanced here is that if a state has created a fundamental right, the people can not then deprive citizens of that fundamental right.
That was the basis for the 9th Circuit’s decision in Perry. The right to marry is considered a fundamental right. However, there is no obligation on the part of a state to grant same sex couples the right to marry where it was never previously recognized the right.
In California, however, the right of same sex couples had been established before voters went to the polls and extinguished that right. That, the 9th Circuit ruled, was unconstitutional.
In MN, all citizens possess the right to cast a ballot without having to present a government-issued, Photo ID. That right is fundamental.
The question presented is whether a majority of MN citizens can extinguish the right to vote for the minority of citizens for whom the obtaining of the requisite Photo ID may be unduly burdensome, or, in some cases, virtually impossible.
I believe Karen’s question stems from the issues of state constitutionality versus U.S. constitutionality. If we were not clear on those points above, perhaps we should review it to clarify where possible.
If a state amends its constitution to say, for example, that only white people can vote. That would be “constitutional” according to the state constitution, but unconstitutional as a clear violation of the U.S. Constitution.
Good point, Brad. The problem with attorneys is that too often they write as if their audience was the judiciary or other attorneys, instead of the public at large.
Mea culpa!
Sorry this is off topic but I can’t find anything in search regarding my question…
“Two USB keys missing from Elections Ontario contain the names, sex, voting histories and addresses of up to 2.4 million people.”
Some news outlets say they were encrypted some say not so.
What could be done as far as the next Federal or provincial election if someone has the info?
http://news.ca.msn.com/ontario/...-region-voters
But this is the state supreme court, so they can’t overturn a state amendment anymore than the SCOTUS can overturn US 14th amendment (other than by narrow interpretation).
MN judge refers to federal standard which would be fine as precedent of reviewing legislation, implementation of law, but isnt it sort of powerless in regards to MN’s court ruling, CA supreme court couldn’t over turn gay marriage amendment, Fedreal courts may. Isn’t Anderson’s statement just meant to influence federal courts?
Also, I have little to no faith in MN court to do anything special or advancing civil rights…these guys are not like the IA court that ruled against ban on gay marriage
Karen @7 wrote:
The U.S. Constitution, and especially the 14th amendment, limit the scope of a state’s power. No state can deprive its citizens of a right which is guaranteed by the U.S. Constitution.
The issue as to whether either legislation or a ballot measure violates the U.S. Constitution can be raised in state courts. As it pertains to federal questions, the U.S. Constitution is the supreme law of the land.
State court rulings must comport to the limitations imposed on a state’s power by the U.S. Constitution. State judges are not only empowered but legally obligated to ensure that neither a state’s statutes nor the amendments to its state constitution violate the U.S. Constitution. However, because a state supreme court decision on a federal question can be appealed to the U.S. Supreme Court, that state supreme court decision is not necessarily the last word on the subject.
The intriguing feature here is that, per Crawford, the right to vote is not treated as a fundamental right under federal law. Likewise, the right for same sex couples to marry has not been treated as a fundamental right which all states must provide for.
However, in Perry, because the right of same sex couples to marry had been construed as a fundamental right by the California Supreme Court under the CA constitution before voters went to the polls, the U.S. 9th Circuit determined that Prop H8 violated the U.S. Constitution. CA voters did not have the right to strip same sex couples of a right that had theretofore been considered “fundamental.”
Here, all parties are in agreement that the right to vote is fundamental under the MN constitution. Thus, the argument could be made, either in state or federal court, that the proposed Photo I.D. amendment to the MN constitution would violate a right of those citizens who lacked the requisite Government-issued, Photo I.D. Under the Perry rationale, a majority of MN voters should not be able to strip the minority of a voting right which had heretofore been considered as fundamental.
Thanks Ernest, great explanation, that clears it up….
This is an interesting discussion (above, on state vs. federal courts). However, I’m not sure Earnest’s last post (#8) fully clarifies it.
My understanding is that the federal Constitution does NOT guarantee us a right to vote. This lawsuit is possible because the Minnesota STATE Constitution guarantees its citizens that right.
If I understand correctly, the federal right to equal protection says that if a state grants a right, it can’t do so in discriminatory fashion.
So its the interplay of the state and federal constitutions that are important here. If the MN state constitution didn’t have a right to vote provision to begin with, the equal protection clause of the federal constitution would not come into play (or at least the burden of proof would be different).
If I have this wrong, please explain.
Randy: The U.S. Supreme Court in Crawford did not treat voting as a fundamental right under the U.S. Constitution. Many state constitutions treat voting as a fundamental right.
Likewise, there are no cases, as yet, that establish that same-sex couples have a fundamental right to marry. If they have never extended the right to marry to same-sex couples, a state is not obligated to do so.
What occurred in Perry, however, is that the CA Supreme Court ruled that under The Golden State’s constitution established that same sex couples have a fundamental right to marry. What the 9th Circuit determined was that, once a state extended the fundamental right to marry to same-sex couples, the effort by voters to strip them of that right violated the U.S. Constitution.
What I am suggesting here is that if voting is regarded as a “fundamental right” in MN, then an effort by a majority of voters to strip a minority of voters of that fundamental right would, under the Perry rationale, violate the U.S. Constitution.