Secretary of State Mark Ritchie held a press conference recently at the State Capitol in St. Paul in which he unveiled an alternative to voter ID: electronic poll books that could verify voters’ identities.

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Court fight inevitable for voter ID

  • Article by: JIM RAGSDALE
  • Star Tribune
  • March 17, 2012 - 7:13 PM

The turmoil and contention surrounding voting rights and election integrity does not cease when a state adopts the type of photo ID requirement Minnesota is moving toward.

It just moves into the courtrooms.

Two Wisconsin district court judges blocked the state's strict, new ID requirement this month, after just a single election. One judge said a government that limits the right to vote "imperils its legitimacy." The state is appealing.

In Texas and South Carolina, concerns dating back to the Civil Rights era have caused the federal government to block ID laws, fearing minority voters will be disenfranchised. Those states are appealing.

Even Indiana and Georgia, two states with the longest history of using strict photo ID requirements, had to battle multiple legal challenges, culminating in a 2008 U.S. Supreme Court decision that upheld the Indiana law as being in "the interest in deterring and detecting voter fraud."

The far-flung cases are important for Minnesota, where Republican legislators are expected to pass photo ID this year as a proposed constitutional amendment. Case by case, relying on state and federal constitutional protections, and with memories of the poll taxes of the Jim Crow era, the courts are drawing the boundaries for ID requirements.

It will take time.

Common Cause Minnesota, which opposes photo ID, is prepared to fire the first legal shot. If the Legislature approves it, the group will sue to keep it off the November ballot.

"It's just an endless morass of court challenges,'' said Rep. Ryan Winkler, DFL-Golden Valley, a lawyer and leading opponent of photo ID. Responded the sponsor, Rep. Mary Kiffmeyer, R-Big Lake, formerly the state's chief elections officer as secretary of state: "The integrity of elections is always worth fighting for."

Supreme but not final

Minnesota's plan has been shaped by previous court decisions, particularly the Indiana Supreme Court decision. That ruling did not preclude future challenges based on evidence of voters being disenfranchised by the ID requirement.

"We've taken a look at those court cases and drafted our language with those court cases in mind," Kiffmeyer said.

There have also been victories for those who oppose photo ID. In 2006, the Missouri Supreme Court ruled that its new law violates "Missourians' specific constitutional protection of the right to vote." The two Wisconsin judges made similar decisions, although one, Dane County Judge David Flanagan, was later revealed to have signed a petition to recall Republican Gov. Scott Walker. Republicans filed a judicial complaint.

The legal status of voting is complicated because the U.S. Department of Justice must approve changes to voting laws in states with a history of racial discrimination. That is why the feds shot down the South Carolina and Texas ID laws, and will apply similar scrutiny when Mississippi finishes work on its law. The states call the action overreach by the Obama administration, but the Justice Department worried that minorities without IDs could be disenfranchised.

"Every state's voter ID law passed in the last decade has been subject to some kind of legal challenge," said Richard Hasen, elections expert and law professor at University of California-Irvine.

Words matter

The courts have given states considerable advice on how to proceed, said Jennifer Bowser, who follows the issue for the National Conference on State Legislatures. States must provide free IDs to all who ask for them, must make sure obtaining an ID does not pose an undue burden for those in need of required documents, and have to conduct voter outreach and education efforts about the new requirement.

"States may have to expand ID-issuing offices, extend hours, and provide means for voters to obtain underlying documents like birth certificates," Bowser said.

Kiffmeyer said she has read all the court rulings and would expect the state to follow these directives. In Minnesota, the electorate would decide in November whether to require a photo ID for voters; if they approve the amendment, it would be up to the 2013 Legislature to spell out the details. Legislators in both houses are laboring over the exact language of the amendment, which, according to Winkler, will be dissected word-by-word in court.

In Senate debate on the language of the ballot question, attention focused on the requirement that it be a "government-issued" ID, which senators saw as more restrictive than "government-approved." Kiffmeyer's current version merely calls for "valid photo identification."

Winkler said phrases in the bill such as "substantially equivalent eligibility verification" for all groups of voters create "room for interpretation."

"Interpretation," Winkler said, "leads to litigation."

Long litigious road

Mike Dean of Common Cause Minnesota said if photo ID becomes law in Minnesota, "this is going to be litigated for the next five to 10 years."

But Hans van Spakovsky, a photo ID advocate with the Heritage Foundation, said he believes the legal trend is gradually moving toward wider acceptance of the concept, even though many legal fights remain. He said if evidence of disenfranchisement existed, the Indiana and Georgia laws would be challenged on that basis.

"They never talk about Georgia and Indiana," he said of ID opponents. "All of the election turnout data in polling places completely refutes the claims they're making."

Missouri's experience shows how long the fight can last. After the 2006 Supreme Court decision, ID supporters regrouped. This year, they have passed the concept as a proposed constitutional amendment -- the same path being taken in Minnesota.

"We have an acknowledged unconstitutional provision, and the legislators want to get around that by just changing the constitution to make it OK," said Denise Lieberman, attorney for the Advancement project, which is in court fighting the proposed amendment.

Much of the future course of litigation depends on how the laws are applied, and what kind of evidence of actual disenfranchisement ID opponents can bring to court. Justin Levitt, law professor and elections expert at Loyola Law School in Los Angeles, said it's like "waiting for a car accident before you can stop it."

Jim Ragsdale • 651-925-5042

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