Justice Paul Anderson seemed to advocate for declaring the amendment unconstitutional just minutes into oral arguments on the amendment when he started questioning the attorney for groups petitioning to have the amendment struck from the ballot.
Justice Anderson reasoned that since voting is a fundamental right enshrined in the constitution, it was “game,set, match” that restrictions on fundamental rights were unconstitutional. He chided the petitioning groups for not making that argument. Those groups were asking the court to stick to the precedent of its 2006 Breza v Kiffmeyer ruling where it found ballot questions need to be misleading before the court can take them off the ballot.
“I think you may be looking at a blanker slate than you may think,” Justice Anderson said.
The amendment would require a government issued photo ID of most voters, but some absentee voters might only need to give the last four digits of their social security number. It would also require a new provisional balloting system for people who do vote in person, but do not have their photo ID with them. The ballot question does not mention the provisional balloting system and says that all voters must have a “valid ID”, but doesn’t mention it must be government issued.
Petitioners defend their strategy
Common Cause is one of the groups asking the court to take the amendment off the ballot. Mike Dean of Common Cause said despite what Justice Anderson said, going after the wording of the ballot question instead of the constitutionality of the amendment was the right strategy, but said the court could just declare the amendment unconstitutional.
“I mean that was one justice”, said Dean. ” I think he raised an important issue though going forward and you know the court could still move in that direction if they so desired. I mean the court has sort of broad ability to do that. I think we’ve questioned the constitutionality of photo ID for quite a long time. And so whether that’s in hindsight, was that a better strategy? I really can’t answer that. But I think overall, he raised some important questions throughout this and feel very confident about the outcome for today.”
The court is expected to rule on the case before Minnesota starts printing its election ballots. The Secretary of State’s office says it needs a ruling by August 27 to modify the ballots and would prefer to have a ruling no later than August 21.
Transcript of video at top of page and links to the cases mentioned:
Justice Anderson: Now let me submit something to you that I think that you’re maybe 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 Breza, I look at Duluth, I look at Stearns, none of those questions dealt with a fundamental right 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 effect voters’ rights?
Attorney Bill Pentelovich: Yes
Justice Anderson: Is… are voters’ rights a fundamental right enshrined in the constitution?
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 vs Madison, and amplified in Fletcher vs Peck? Is 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, when we’re talking something so fundamental as voter rights, don’t we at a minimum look at it with a skeptical eye? That’s what said in Crawford or maybe even a gimlet eye? Because it goes to the heart of what the constitution 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. It allows us to reinvent ourselves. So aren’t we looking at least something more that what we articulated in Duluth, Stearns, or Breza? I mean they can inform us, but it doesn’t get much bigger than this sir.
Mike McIntee: Anderson kept saying you guys have a blank slate and was talking about that perhaps you erred in focusing on the question when you should have been asking the court to strike down the amendment based on constitutionality. Should you have done that?
Mike Dean: I think that we proceeded with the right strategy. I mean that was one justice. I think he raised an important issue though going forward and you know the court could still move in that direction if they so desired. I mean the court has sort of broad ability to do that. I think we’ve questioned the constitutionality of photo ID for quite a long time. And so whether that’s in hindsight, was that a better strategy? I really can’t answer that. But I think overall, he raised some important questions throughout this and feel very confident about the outcome for today.
McIntee: So you’re saying then that the court could come back and say it’s not the question, it’s the constitutional amendment itself. This is unconstitutional we can’t have it. You say that’s a possible outcome?
Dean: That’s a possibility because of what Justice Anderson said today. Whether that’s likely, I mean that was just one justice. I mean it’s always hard to read into what’s going to happen based upon the questions today. We saw this with the health care bill vote. Everyone thought it was going to go down based upon the questioning and look what ended up happening. And so today it’s really hard to sort of judge this. But based upon that I still feel really confident because you saw almost every justice really question the question itself and saying its deceptive/ misleading. I think the real issue is going to be what is the remedy. Do they feel it’s too political so they’re not going to do anything? Do they feel that they’re going to strike it down completely and they don’t have the power at all to change the question? Or do they go for some sort in-between step which essentially would be strike the question, put the entire amendment on the ballot.