The Minnesota Supreme Court will decide whether the voter ID constitutional amendment will be on the statewide ballot in November or if the Legislature must try to re-write the question.
The court heard oral arguments today in a lawsuit filed by amendment opponents, who claim the ballot question is too vague and misleading.
The measure Republican state lawmakers passed back in May includes the following ballot question: "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?"
Opponents of the measure contend that question is faulty because it doesn't adequately describe the vast changes they predict such a requirement would bring to Minnesota's current election system.
Bill Pentelovitch an American Civil Liberties Union of Minnesota lawyer who represents League of Women Voters Minnesota, Jewish Community Action, Common Cause Minnesota and other individual plaintiffs, told the justices that the question makes no mention of the creation of a new provisional balloting system.
"To me that's the biggest flaw in this," Pentelovitch said. "I mean there are other flaws that are significant, but in terms of materially misleading to 100 percent of the people who are going to vote on this amendment, whether they vote in person or absentee, is that it does not explain to them that they are bringing Minnesota into an entirely new system of voting: provisional balloting."
But Thomas Boyd, a lawyer representing the Minnesota Legislature, countered that the effects of the amendment, including provisional balloting, won't be known until lawmakers pass the enabling legislation for the new system. Boyd also argued that courts have previously given legislators wide latitude in the presentation of constitutional amendments. He said there have been more than 200 crafted in the state's 150-year history.
"They will not always contain every aspect of its subject," Boyd said. "But the Constitution says it's the Legislature and the Legislature alone that gets to formulate that brief summary."
During the questioning of the plaintiff's attorney, Justice Paul Anderson said he too thought the wording of the ballot question was misleading. But Anderson said he didn't think a case had been made for the court to keep the proposed amendment off the ballot.
"You haven't told me that the amendment language itself is unconstitutional or offends the federal Constitution," Anderson told Pentelovitch. "And Article 9 says if it's passed, it goes to the people."
The hearing touched frequently on the separation of powers between the judicial and legislative branches of state government. Justice David Stras said the case sounded a lot like a political question that the court shouldn't be answering.
"Why shouldn't we be hands off with this particular question?" Stras asked. "Why shouldn't we say this is a political question that's textually committed to the Legislature? Therefore we shouldn't interfere, because it sounds a lot like there's not much in terms of a remedy that we can give."
Stras had earlier raised the possibility of replacing the current ballot question with the language of the entire amendment. But attorneys on both sides objected strongly to that suggestion. Pentelovitch said the court would be overstepping its authority.
"The Legislature made a decision not to do that," he said. "And you would then be usurping the legislative prerogative by deciding to do it."
Boyd, the attorney for the Legislature, told the court that placing the entire amendment on the ballot was a bad option. But he suggested it was a better solution than others.
"The only, only relief I can think of is that the court would have to put the text of the proposed amendment on the ballot," Boyd said. It's not clear when the justices will issue a ruling in the case, but it will likely come next month.
In a recent letter to the court, Democratic Secretary of State Mark Ritchie said the justices would have to rule by Aug. 27 to ensure the timely printing of general election ballots.