Why sloppy drafting will kill the photo-ID amendment

 Today's blog appeared in the Community Voices section of Minnepost on June 21, 2012.

Whatever the merits of the Minnesota voter photo-identification amendment, chances are that it provisions will not take effect soon, if at all, even if adopted by voters this November.

The reason is not that it is a bad bill, which it is, or that it will do little to combat the virtually nonexistent in-person voter fraud in the state, which is also the case. Instead, the amendment's authors did such a horrible job of drafting it that either the Minnesota political process or the courts will prevent it from ever going into effect.

Criticism of the voter-ID amendment has centered on the issues of fraud, disfranchisement and cost. Critics contend that it is a solution in search of a problem. Two major recounts have demonstrated that in-person voter fraud is de minimis and that what little that does exist will not be remedied by photo identification.

Additionally, the argument is that the photo-ID requirements will disenfranchise many populations, such as the elderly, students, the poor, and people of color.

Finally, critics assert that the photo ID will cost the state and local governments millions to administer, while also inflicting personal costs on individuals. All these are valid criticisms, but none of these speaks to the problems with the amendment that will prevent it from going into effect.

The single-subject rule
Assume the voter-ID amendment does pass this November, what then? The first major defect is that it violates the single-subject rule. Article IV, section 17 of the Minnesota Constitution states: "No law shall embrace more than one subject, which shall be expressed in its title." Minnesota, similar to what is found in approximately 40 other states, mandates that a specific bill or law include only one subject. This rule also applies to constitutional amendments in Minnesota.

Courts across the country have taken an aggressive position in recent years applying the single-subject rule, especially to ballot propositions and constitutional amendments, to invalidate measures voted on by the people. The reason is simple: Voters should not be forced to vote yes or no on ballot propositions that contain more than one subject, especially if they object to one of the provisions. Imagine a constitutional amendment asking voters "Should the mosquito be named the state insect and abortion banned?" I may oppose abortion or dislike mosquitoes and forcing a yes or no on the entire proposition makes it difficult for voters to express their true preferences.

Consider the voter ID proposal language put before the voters: "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?" This ballot question has two subjects: One refers to presentation of a valid photo ID and the other to requiring the state to provide free identification.  Conceivably, a voter could favor presentation of voter photo ID but not providing free identification, or vice versa.

In the last few years in cases such as Unity Church of State Paul v. Minnesota (2004), and Associated Builders and Contractors v. Ventura (2000), the Minnesota courts have aggressively enforced the single-subject rule, and there is no reason to think they will not do so here. Thus, even if the voters approve this amendment, it is likely the amendment  falls to the single-subject rule.

But backers of the amendment were stuck. Courts across the country have invalided voter identification bills under state or federal constitutional clauses because they did not provide for free identifications. This happened, for example, in Georgia. Voter-ID supporters thus had to attach this provision to the constitutional amendment. Were this ordinary legislation maybe the free ID would have survived single-subject, but as a constitutional amendment it creates problems for voters in making their choices.


The enabling problem
Again assume voter ID passes this November. The amendment requires additional enabling legislation to go into effect. Unless the Republicans obtain veto-override majorities, Gov. Mark Dayton can simply veto any enabling legislation, rendering the voter ID amendment unenforceable. Assume the DFL takes back one house of the Legislature; it can refuse to act. In either case, the amendment is dead. Assume the DFL takes back both houses; then either the Legislature does nothing or it enacts  enabling legislation so watered-down that it meaningless.

GOP Rep. Mary Kiffmeyer contends no enabling legislation is needed, since the constitutional amendment is self-executing or self-enforcing. She is wrong.

First, in Freeman v. Goff (1939) the Minnesota Supreme Court stated that constitutional provisions are presumed directory or mandatory. The presumption is that they must be enforced as described in the amendment unless there are other reasons to think not. But the voter-ID amendment cannot be enforced as written without enabling legislation explaining critical terms such as what constitutes a "valid" photo identification. The vagueness of this word dooms enforcement, leaves public officials open to charges of abuse of discretion, and raises potential due-process and equal-protection violations if they simply try to enforce the requirements as written.


The precedents
More important, repeatedly Minnesota courts have long declared in cases such as  Willis v. St. Paul Sanitation Co. (1892), State v. Kiewell (1902), State v. McColl (1914), Aase v. Langston (1928),  Payne v. Lee (1946), and In re Wretlind (1948) that: "Prohibitive clauses of the constitution such as the due process clause are self-executing and require no legislation for their enforcement."

By that, generally Bill of Rights provisions that limit the state and protect individual liberties are self-enforcing, whereas provisions that direct the state to do something require enabling legislation. In the case of the voter-ID amendment, at the very least the state is required to provide free identifications, necessitating enabling legislation defining what is considered a valid ID and how it will be distributed.  The same is true when it comes to the first part of the amendment, requiring presentation of a "valid" photo identification. Again, what constitutes valid? This, too, requires enabling legislation to clarify and implement.

Overall, the potential political landscape after the November elections, as well as firmly entrenched state and federal constitutional principles, are enough to bog down and prevent enforcement of the voter-ID amendment for years even if it does pass this November. Millions of dollars will be wasted on this amendment in an effort to pass, defeat, and litigate it, and taxpayers will be angry no matter the result.

When that happens, supporters of the amendment can blame themselves and the authors of it for sloppy drafting that doomed the amendment from the start.