Misleading Or Not? Minn. Court Mulls Voter ID Case

ST. PAUL, Minn. (AP) — The Minnesota Supreme Court on Tuesday waded into a fight over a proposed constitutional amendment requiring photo identification for voting, even as justices asked whether they had authority to strip the measure from the November ballot, rewrite it or take other action.

In a fast-paced hearing, two justices openly objected to the wording of a ballot question, with one calling it misleading and another describing it as "bait and switch." But several voiced concern about interfering with a ballot question bound for voters.

The case brought by the measure's opponents is the first of a few legal skirmishes surrounding the voter ID proposal and another highly charged constitutional amendment fortifying a state gay marriage ban.

While prompting an attorney for amendment opponents to describe why the voter ID question that will appear on the ballot is considered misleading, Justice Paul Anderson added, "I think it is." But Anderson went on to say the Minnesota Constitution seems to give the Legislature sole power to put questions before voters.

Later, Justice David Stras asked: "Why shouldn't we be hands off with this political question?"

The ballot question at issue reads: "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?"

The amendment that would go into the constitution is 119 words long, describes verification requirements for voters and broadly lays out a provisional balloting system for voters who lack proper ID at the polls.

Attorney William Pentelovitch, who represents the League of Women Voters Minnesota and a coalition of groups, said it is the court's duty to step in if voters will be deceived. That's happening here, Pentelovitch said, because the question doesn't adequately explain what constitutes a valid ID or how the provisional ballots will be handled and counted.

"No voter looking at the ballot question standing on its own would have any idea they are voting to institute provisional balloting," he told the court.

Chief Justice Lori Gildea pointed out that state law requires ballot questions to be concise.

Thomas Boyd, the lawyer for amendment backers, didn't even get a word in before an engaged judicial panel began grilling him.

Justice Alan Page challenged Boyd on differences in the ballot question and the proposed amendment when it comes to what identification would be considered valid. The question leaves it at "valid photo identification" while the amendment itself would demand "valid government-issued photographic identification" or "substantially equivalent identity and eligibility verification." It would be up to lawmakers to later define each of those.

"Not to be crass about it, but it's a bit of a bait and switch," Page said.

Anderson interjected before Boyd could respond, but later the attorney said voters bear some responsibility to educate themselves beyond the question.

"Ultimately it's for all of us to read the proposed amendment and make up our own minds," Boyd said. Only then will the Legislature adopt a law to carry the requirement out, he said.

Even if justices find the question palpably evasive — the standard for invalidating it — their remedy isn't clear. The attorneys appeared united in their belief the court couldn't rewrite it. One option may be to have the full amendment appear on the ballot, which the GOP sponsor of the amendment legislation has said could be a fallback.

Only six of seven justices are participating in a case they expect to decide before late August. Five were appointed by Republican governors and the sixth, Page, was directly elected to the court. Justice Helen Meyer, an appointee of independent Gov. Jesse Ventura, recused herself without explanation.

Meanwhile, Sen. Scott Newman said after the hearing that amendment backers would go to court to block Secretary of State Mark Ritchie from rewriting the title that will appear above the ballot question. He swapped out the Legislature's version of "Photo Identification Required for Voting" for one that says "Changes to In-Person & Absentee Voting & Voter Registration; Provisional Ballots."

A similar court case is playing out over Ritchie's move to rename the marriage amendment. That case is set for a July 31 hearing in the Supreme Court.
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