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Minnesota Supreme Court justices peppered lawyers with pointed questions about the right to vote and the Legislature's power as the volatile issue of photo ID landed at the state's highest court Tuesday.
"The right to vote is an institutional way to peacefully revolt,'' said Justice Paul Anderson, who criticized parts of the proposed constitutional amendment. "It doesn't get much bigger than this."
The stakes indeed are high. The League of Women Voters-Minnesota and other plaintiffs are asking the court to strike the issue completely from the Nov. 6 general election ballot, arguing that the question voters will see is misleading. The Republican-controlled Legislature, which voted to put the issue on the ballot, says that writing ballot questions is its sole prerogative, and that voters have a right to make the ultimate decision.
Justices Paul Anderson, Alan Page and David Stras raised questions about differences between the language of the ballot question and language of the proposed constitutional amendment, which voters will not see on the ballot.
"Don't the people have a right to vote on something that's not deceptive?" said Anderson. Page suggested that differences between the language of the ballot question and the actual amendment constituted "a bit of bait and switch."
"It seems to me, in responding to the ballot question, I can't know what I'm voting on," Page said.
At issue is whether the ballot question, as worded, fairly describes the amendment, and whether the court has any role in the dispute. The League of Women Voters notes that the ballot question contains no reference to major changes such as a new system of provisional balloting, new eligibility standards for some voters and the fact that the IDs must be "government-issued."
But Stras and others, including Chief Justice Lorie Skjerven Gildea, cited laws that give the Legislature the power to submit ballot questions to voters. And they wondered how the court could "fix" the ballot question without creating other constitutional problems.
In a colloquy with the Legislature's attorney, Thomas Boyd, Anderson asked, "Would you agree that this amendment affects voting rights?"
"It does, your honor," replied Boyd.
"And voting rights are a fundamental right -- is that correct?" Anderson asked.
"It is a fundamental right, just as the right to vote on a constitutional amendment is a fundamental right. ... " Boyd replied before Anderson cut him off.
Boyd said that throughout state history, ballot questions have "come in all shapes and sizes. ... It's the Legislature and the Legislature alone that gets to formulate that brief summary."
The court, minus Justice Helen Meyer, who has announced her retirement and is not participating in the case, heard oral arguments and is expected to make a decision by late August. That would give the state and local election officials time to prepare ballots for November.
During the hearing, several justices raised the possibility that the court could throw out the ballot question and substitute the entire text of the amendment, allowing voters to say yes or no to the actual language that would be inserted into the state's Constitution.
Attorney Bill Pentelovitch, representing the League of Women Voters and other plaintiffs, said the court can take the measure off the ballot, but rewriting it would turn the umpires into players.
"If this were a baseball game, and you're calling balls and strikes, after you call them out, you couldn't then go pitch," he said.
When Anderson mentioned Alexander Hamilton's statement that judges should guard against the "ill humours" that could emanate from unjust laws, Boyd said, "They were focused on laws when they were enacted, rather than preventing the people, the citizens, from voting on whether something might become a law."
Stras said the type of ID to be required -- and the way that is described in the ballot question -- "is really a concern for me." The ballot question refers to "valid" IDs but the underlying amendment specifies that they be "government-issued."
Said Stras, "One could make an argument that that's an affirmative misrepresentation." Gildea came to Boyd's defense, saying it appears the totality of the amendment satisfies the court's precedent for evaluating ballot questions.
Stras concluded near the end of the hearing that "this is sounding an awful lot like a political question," and that perhaps the court should be "hands off" on such issues. "It sounds like there's not much of a remedy we can give," he said.
After the hearing, Sen. Scott Newman, R-Hutchinson, a sponsor of the photo ID bill, said he was upset that Secretary of State Mark Ritchie changed the title of the amendment as it will appear on the ballot. He said a separate legal action is forthcoming. "We will be raising it in the form of a suit," Newman said.
Staff writer Rachel E. Stassen-Berger contributed to this report.
Jim Ragsdale • 651-925-5042