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Noah Musser, Kansas City Star

Your vote, your right, your duty

  • Article by: PETER J. NELSON
  • June 20, 2012 - 8:52 PM
A petition was recently filed on behalf of the League of Women Voters, Common Cause and others to strike the voter ID constitutional amendment question from the ballot on grounds that it is "fundamentally unfair and misleading."

I have some empathy for the petitioners' position, but the law is not on their side.

Back in 2008, I had a similar objection to the Legacy Amendment then on the ballot. That ballot question simply asked whether funding should be dedicated to clean water, conservation, parks and the arts by raising the sales tax.

Nothing explained how the funding was to be apportioned or explained that it couldn't be used to substitute for current funding. These were important facts. How could voters make an informed decision?

However, after some brief legal research, I discovered that I was wasting my time with these questions.

Two old cases from the turn of the 20th century clearly show that the Legislature is free to write ballot questions just about however it wants. The only standard is that the question "must not be so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit the law to a popular vote."

In the case (State ex rel. Marr vs. Stearns) where this standard was first articulated, the ballot question at issue simply asked: "For taxation of railroad lands. Yes. No."

By voting yes to this question, voters were enacting a 502-word statute. Not a problem according to the court. Voters were basically expected to inform themselves.

Not long after that, another ballot question reached the Minnesota Supreme Court -- State vs. Duluth & N. M. Railway. This time, the court explained: "The courts cannot review the judgment and discretion of the legislature in prescribing the form and substance of the question to be submitted, simply because they may be of the opinion that the question was not phrased in the best or fairest terms."

Importantly, the court found that the language in question did not "indicate a purpose to mislead," which confirms the importance of showing an intent to evade the constitutional requirement.

Despite my wish for a more descriptive ballot question, it seemed there was nothing constitutionally wrong with the Legacy Amendment language.

The same should be obvious to those complaining about the voter ID ballot question. Nonetheless, they have filed their petition with the state Supreme Court, making three main arguments, which are all easily overcome.

First, they complain that the ballot question "states the amendment would require photo identification from 'all voters,' when the amendment actually states photo identification is required from those who vote 'in person.'" There is nothing misleading about "all voters."

Based on the text of the amendment, "all voters voting in person" will need to present photographic identification and those not voting in person will, at the very least, "be subject to a substantially equivalent identity" verification process.

Could the ballot question be more precise? Sure. But the wording does not confuse matters and, more important, there is clearly no intent to mislead.

Second, petitioners say the ballot question omits certain substantive changes that the amendment would make to the constitution. But, according to the court's precedents, the ballot question could have left out all substantive changes and simply asked something like: "Shall voting requirements be changed? Yes. No."

Finally, the petitioners argue that the "legislature unlawfully provided a misleading title for the proposed amendment." Minnesota statute requires the secretary of state to "provide an appropriate title for each question." The claim here is that the Legislature is not permitted to specify the title under state law.

But the state Constitution puts the current Legislature fully in charge of any constitutional amendment. There is no constitutional role for the secretary of state in the amendment process, and a constitutional allocation of power cannot be amended by statute.

And there is no role for a prior Legislature. According to Duluth & N. M. Railway, one Legislature cannot "bind its successor" in these matters. So the statute is not binding on the Legislature, and there's no need to debate the very debatable language of the statute.

In short, precedent grants the Legislature broad discretion in proposing an amendment, and nothing in the petitioners' brief presents the court with the clear rationale it would need to justify a dramatic decision to overturn the will of the Legislature.

Though the law might be clear, that is not to say there's no value in complaining about the current state of the law. Maybe the Minnesota Constitution should require more information on a ballot question. Wouldn't that better guarantee that voters will make an informed choice? It might also help avoid legislating via the constitutional-amendment process.

Maybe I'm on to Minnesota's next constitutional amendment. How's this for the ballot question? "For amending the state constitution? Yes. No."

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Peter J. Nelson is director of public policy for Center of the American Experiment in Minneapolis.

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