By Ernest A. Canning on 7/20/2012, 1:19pm PT  

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...

JUSTICE ANDERSON: I think you’re missing the point on the standard of review. I think you may be looking at a blanker slate than you may think. Because, as I look at [past MN cases dealing with misleading ballot questions], none of those questions dealt with fundamental rights that’s enshrined in the constitution. They dealt with legislation that the legislature was to submit to the people.

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.

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Video of the exchange between Justice Anderson and Mr. Pentelovitch, courtesy of the Uptake.org, follows...

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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.