Education, Racial Disparities, and the Minnesota Constitution

Minnesota has one of the worst K-12 racial education achievement gaps in the country and

something needs to be done. Yet contrary to a  recent proposal by former Minnesota Supreme Court Justice Alan Page and Minneapolis Federal Reserve Board President Neel Kashkari, amending the Minnesota Constitution to fix it will do little and potentially make it worse. 

            Minnesota has a persistent problem with race.  The Twin Cities is one of the most racially segregated metropolitan areas in the nation.  The state’s racial financial wealth gap is the worst in the nation.  The racial incarceration gap is among the worst. There is a persistent racial  health care outcomes disparity among the worst in America. Among so many measures Minnesota ranks among the bottom when it comes to racial issues.  The same is true with K-12 education.

            Minnesota’s story when it comes to race and education is an extreme example of what happened nationally.  When the US Supreme Court ruled in Brown v. Board of Education, 347 U.S. 483 (1954) that separate but equal was an unconstitutional principle when it came to segregated schools, many thought that this court case would promote integration and end racial disparities in education.  Instead it produced an intense fight over schools, resulting in white flight from the cities to the suburbs, including in Minnesota, only exacerbating the problem.  Then when the Supreme Court ruled in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) that educational funding disparities did not violate the US Constitution, the Supreme Court effectively signaled it was abandoning the battle to address educational equality.  Over the next 20 years it eventually issued several decisions that eased federal oversight or enforcement of desegregation.  This shifted the battle to the states.

            The state battle was a litigious one.  All 50 states have constitutional clauses that provide some guarantee of free public schools.  The language varies across states, but like many, Minnesota’s original 1857 Constitution in Article XIII, section 1, called for a “general and Uniform system of public schools…throughout the state.”  This language remains the same today.  Over time, litigants used state constitutional clauses to address racial discrimination.  Then there was a second wave of litigation to promote equal funding, then a third to demand adequate funding.   Nationally and in Minnesota this litigation promoted some gains, but the problems persisted.  Thus, it is not completely unreasonable to think that adopting new constitutional language would impose new state mandates and funding in Minnesota, thereby either allowing for new state policies to be developed or new options for litigation to force change. 

            The Page and Kashkari proposed language is:  “All children have a fundamental right to a quality public education that fully prepares them with the skills necessary for participation in the economy, our democracy, and society, as measured against uniform achievement standards set forth by the state. It is the paramount duty of the state to ensure quality public schools that fulfill this fundamental right.”

Legal change can promote social change.  Except improving educational outcomes is more complex than simply passing an education constitutional amendment.

            There are numerous flaws in the constitutional amendment approach.  First the achievement gap is part of a complex process of racial and economic segregation in housing and neighborhoods.  It is also a product of wealth, income, and health disparities.  Students of color are more impacted by these problems than are whites.  No matter how much one tries, it is hard to study and achieve in school with a growling belly, or forced to move constantly because of costly housing, or because parents are working multiple shifts or unable to afford day care.  Performance in school is hugely driven by background socio-economic forces that this constitutional amendment will not address.

            Second, in the very first education classes I ever took my teacher drew a triangle on the board and on one corner wrote school, and then home and community on the other two corners. He then said that students are educated in all three places–school, home, and community–with teachers, parents, and others all working to educate. His point was to drive home that schools and teachers at best are responsible for one-third of all the learning that takes place with students. Teachers cannot teach unless parents and other reinforce what they do and what their children learn in school.  We need to strengthen not just schools do, but also parents and families. A simple constitutional amendment will not do that.

            Three, the proposed amendment measures equal achievement by way of standardized test scores.  Overwhelming research already documents the racial and class biases built into these tests.  Additionally, especially since the days of No Child Left Behind which under President George Bush, the push for standardized testing has proven to be highly flawed.  Teachers are forced to teach to the test and curriculum limits learning to rote activity so that students do well on these exams.

            Fourth, and perhaps the biggest flow, is that the constitutional amendment does something without doing anything.  It puts all the energy into changing the constitution, but it kicks the more fundamental problems down the road.  The language is not a self-executing amendment, but it will require legislative action to define what are “ the skills necessary for participation in the economy, our democracy, and society.”  This mandates important decisions to be made to define these skills, how to construct a curriculum to achieve desired goals, who can teach, and how to fund all of this.

Current constitutional language does not prevent the development of any of this, the problem has not been law but political will.  New constitutional language as suggested by Page and Kashkari too will not guarantee it, but instead would potentially push critical decisions about educational decisions into the courts where judges will have to make these decisions.    It is not clear that this approach is desirable, and it leaves policy formulation up to the distortions of plaintiff legal strategy, and not one necessarily based on promoting overall sound educational policy.

            Finally, stripping the language of uniformity from the current constitution does run the risk of opening the door to more privatized education.  In Florida, the Florida Supreme Court in Bush v. Holmes, 919 So.2d. 392 (Fla. 2006) used the uniformity clause to strike down a voucher system in that state.    Take away a uniformity clause and one increases the risk of undermining public schools. Thus, this language arguably would make the state less responsible for educational performance if it produced more private schools.   All of this is in additional to evidence that charter schools have exacerbated segregation, and at best there is mixed evidence that the school choice models have improved educational quality in Minnesota or internationally.

            Page and Kashkari should be commended for raising the issue of educational achievement disparities and the need for a new public policy approach.  But it is not clear that their constitutional amendment approach will achieve the outcomes Minnesota needs.

January 3, 2018–A Day of Constitutional Infamy in Minnesota Politics

January 3, 2018 might turn out to be one of the most important days in recent Minnesota history, both in terms of politics and constitutional law.  For it is on that date that Tina Smith takes over for Al Franken as US Senator, potentially triggering a major constitutional battle, and Rebecca Otto has oral arguments before the Minnesota Supreme Court in a case that will decide the power of the State Auditor.  These two events are part of a broader political battle in Minnesota politics that now engulfs the state constitution.
Minnesota is no longer your grandfather’s state where the Democratic Farmer Labor Party ruled.  While Minnesota remains the most loyal of Democratic states in terms of presidential politics by not having gone for a Republican since 1972 with Richard Nixon, it is otherwise a state that is partisanly divided.  Republicans control the legislature; the congressional delegation is split by parties, and Donald Trump nearly beat Hillary Clinton in 2016, coming within 50,000 votes of flipping the state.  Clinton won only nine counties in 2016, Dayton as governor won only 37 of the 87 counties in 2014, and in general the political geography points to a state hotly divided between  Hennepin, Ramsey, Olmsted, and St. Louis counties and the rest of the state.  Democrats have lost the farmers, and the dwindling density of the percentage of the state collectively bargaining means that it too may soon lose what is left of labor.
The partisan divide ha produced a polarization that has wrecked havoc on Minnesota.  It has included government shutdowns and repeated special legislative sessions that are no long special but the new normal.  But the intensity of the political divide has over the last decade, and especially in the last two years, taken the state to the level of constitutional fights.  When the Minnesota Constitution was significantly overhauled in 1972 it provisions were the product of the political consensus of the times, reflecting shared understandings about how the state and it various entities should work.  That shared consensus and understanding is gone, and with it the glue that held together state politics and the constitution.
Perhaps the first case in this new era of constitutional politics  was Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010), challenging the authority of the governor to use his unallotment powers to balance the budget when he simply disagreed with what the DFL Legislature wanted to do.  Then there were the 2011 Ramsey County Court decisions In re Temporary Funding of Core Functions in the Executive Branch of Minnesota and  In re Temporary Funding of Core Functions in the Judicial Branch of Minnesota that allowed for the funding of the state government even though there governor and the legislature had not agreed on a budget.  In 2012 the Republican Legislature was unsuccessful in its attempt to bypass the governor and amend the Constitution to change the law regarding voting and same-sex marriage. And last year the State Supreme Court failed to resolve the constitutionality of the governor’s use of the line-item veto to eliminate funding for the state legislature in response to their passage of budget bills he did not like.   While the Court did not officially rule in favor of Dayton in Ninetieth Minnesota State Senate v. Dayton, 903 N.W.2d 609 (Minn. 2017), it effectively acquiesced this use of the line-item veto because the legislature was not without resources to act.
All this brings us to January 3, 2018.  Most notably the date will be known as the one where Senator Al Franken was replaced as US Senator by Lieutenant-Governor Tina Smith who was nominated to that post by Governor Dayton.   This leaves a vacancy in the Lieutenant-Governor’s position and according to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michele L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution.   Except that Fischbach does not want to give up her Senate seat and she and Republicans are trotting out a Minnesota Supreme Court decision State ex rel. Marr v. Stearns, 72 Minn. 200 (1898) as precedent to allow her to retain both her senate and lieutenant-governor seats.  There are lots of good reasons to think that precedent is bad law,  including the fact that some of the constitutional provisions at play in that decision were repealed  by amendment in 1972.
But the validity of the precedent is immaterial, as is who really fills the lieutenant-governor vacancy.  The case is about politics.  Democrats hope that forcing Fischbach out might shift the balance of power in the Minnesota Senate slightly, which was controlled 34-33 by the Republicans after the  2016 elections and which now is 34-32, pending a special election to replace a DFLer who had to resign.  Assume Democrats win the seat, forcing Fischbach out shifts the Senate to 33-33.  Once Fischbach becomes Lieutenant-governor, look to see a lawsuit filed to challenge her ability to hold both positions.  With a Dayton-appointed majority on the Minnesota Supreme Court, she will lose.  But the timing of the litigation, when a decision is issued, and when a special election occurs may all impact the Senate balance of power.  And at the end of the day, forcing Fischbach and Republicans to spend money to litigate and run for her seat again (Fischbach has said if she is forced out of her Senate seat she will run for her Senate seat again in a special election and if she wins will then resign as Lieutenant-governor) is worth it to some DFLers.
The other major January 3, 2018 event is Otto v. Wright County.  Here oral arguments will be heard challenging the authority of the State Legislature to take some audit authority from the State  Auditor by allowing counties to hire their own private auditors.  The case raises important constitutional law questions about separation of powers (may the legislature remove some powers from a constitutional office without undermining its core functions) and perhaps the single-subject rule (since the provision that authorized this was snuck into a larger bill with a variety of assorted and arguably unrelated provisions).  Otto v. Wright County has looming and important constitutional questions that will affect the state, but this case too was rooted in petty partisan and possibly intra-party fights that were meant to damage Rebecca Otto’s political ambitions.
Look for more constitutional battles in 2018 and beyond.  These battles will take the form of litigation and constitutional amendment.  These battles are the product of a political consensus that has broken down, challenging the norms and shared understandings that held state politics together for the last 50 years.

Tina Smith, Michelle Fischbach, and Minnesota Constitutional Politics

The selection of Tina Smith by Governor Mark Dayton to replace Al Franken as US Senator is degenerating  into a political fight that ultimately may require the Minnesota Supreme Court to decide whether Senator Michele Fischbach gets to keep her seat in the Senate.
Here is the issue.  Al Franken’s resignation from the US Senate, triggering Minnesota Statutes  §204D.28, allowing Governor Dayton (DFL) to replace Franken.   Dayton picked his Lieutenant-Governor to replace Franken, thereby creating a vacancy in that office.  According to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michelle L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution. 
Except, does Fischbach have to vacate her Senate seat?  Democrats argue yes, pointing to two clauses in the State Constitution.  The first is Article III, Section 1 stating that:

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

The second is Article IV, Section 5, declaring that:

No senator or representative shall hold any other office under the authority of the United States or the state of Minnesota, except that of postmaster or of notary public. If elected or appointed to another office, a legislator may resign from the legislature by tendering his resignation to the governor.

Taking a plain language reading of the Minnesota Constitution, DFLers contend that Fischbach  must  assume the position of Lieutenant-Governor and vacate her position as state senator.  It seems open and shut, except Republicans say it is not.  They contend first that the reason Dayton picked Smith was to force a Republican vacancy in the Senate, hoping in a special election to flip the 34-33 GOP majority into DFL control.  Republicans are conjuring up images of DFL political chicanery in hopes of repeating the Minnesota Massacre sweep of the 1978 two US Senate, governorship, and legislative races again in 2018. 
But Republicans also claim law is on their side, citing to the Minnesota Supreme Court’s State ex rel. Marr v. Stearns, 72 Minn. 200 (1898).  In that case the legal issue was a challenge to a decision by an Aitkin County auditor to tax three railroad-owned properties, pursuant to a state law.  In challenging their taxation, one argument was that the state senate did not adopt the legislation by the required majority vote as required by the State Constitution.  Specifically, Honorable Frank A. Day, who voted for the bill, and whose vote was necessary to pass it, was not then a senator, and his vote thereon was void.
  According to the Court, Day was elected as a senator from the Sixth senatorial district of this state for the term of four years, commencing January, 1895, and on January 25, 1895, became president pro tempore of the senate. Six days thereafter, Gov. Nelson resigned, and Lieut. Gov. Clough became governor; and thereafter, and until the close of the Twenty–Ninth session of the senate, Mr. Day performed the duties of, and acted as, lieutenant governor. He also, until the close of the session, continued to act and vote as senator, with the tacit approval, at least, of the Senate.
In rejecting the claim that he had left the Senate and became Lieutenant-Governor the Court rejected arguments that either Article III, Section 1 or Article IV, Section 5 forced Day out of the Senate.  The Court argued that in interpreting all of the state constitutional provisions as a whole, there was no explicit or clear language that said the senator must resign.  Additionally, the Court also noted how Article VIII which discusses impeachment excludes the lieutenant-governor from being impeached as an officer, suggesting that this person remains a senator.  Finally, the Court noted that the impeachment clause specifically excluded the Lieutenant-governor from serving or voting when the governor is impeached.  Providing for this specific exclusion is proof for the State ex rel. Marr v. Stearns that the Constitution, taken as a whole, means that the presiding officer of the senate of vacates that seat when becoming lieutenant-governor.
State ex rel. Marr v. Stearns is an interesting precedent, but is not convincing.  First, the Court’s real holding in the case was about taxation and not on the matter of whether the president pro tempore of the senate loses his senate seat when becoming Lieutenant-governor.  The latter issue was collateral to main issue.  Second, in the nineteenth century Minnesota and other states court applied the “enrolled bill” doctrine, a presumption that the judiciary would not second guess how the legislature did its business or count its votes.  That doctrine is mostly dead now.  Third, the decision in State ex rel. Marr v. Stearns was overturned by the US Supreme Court in Stearns v. State of Minnesota, 179 U.S. 223 (1900).  While the US Supreme Court cannot overturn the Minnesota Supreme Court’s own interpretation of our Constitution, the former’s decision clearly erodes the authority of State ex rel. Marr v. Stearns as precedent.
But the strongest reason to why State ex rel. Marr v. Stearns is not good law is that the Minnesota Constitution has been significantly amended since that decision.  For example, back in the original Constitution (Article V, Section 6), the Lieutenant-Governor was named ex-officio president of the senate.  This is no longer the case as a result of constitutional amendment.    Back in State ex rel. Marr v. Stearns one could argue that the specific language of the Constitution blended the Lieutenant-Governor into a position that stood as an exception to Article III, Section 1 or Article IV, Section 5.  That is no longer the rule or the case today.  Yes the current Constitution fails to subject the Lieutenant-Governor to impeachment, but that is an oversight in the amending process.
Thus, the current constitutional basis for the Court’s decision in State ex rel. Marr v. Stearns is questionable on many fronts.  If the GOP were to bring their case to the Minnesota Supreme Court there are many reasons to doubt the validity of this old decision.  Finally, given that a majority of the Minnesota Supreme Court is now Dayton appointees, and given how they ruled in the line-item veto case, the prospects of the Republicans winning and allowing Fischbach to stay in the Senate are bleak.

Minnesota's Constitutional Crisis

Minnesota is in the middle of a constitutional crisis.  As is true with most constitutional crises, it is a crisis precipitated by a political crisis. The political crisis is battle between the legislature and the governor, rooted in political disagreement and polarization, and where it is about ready to engulf the Minnesota Supreme Court.

            The constitutional crisis has been long coming.  It is rooted in the change in Minnesota politics that began 20 years ago—perhaps marked when Jesse Ventura won the governorship and the Republicans the House.  That point represented the point when DFL domination in the state since the 1960s ended, and the emergence of Minnesota as a state increasingly torn by the political cultures of urban liberals and rural conservatives.  The DFL has lost its farmer leg, and it is becoming clear that as Trump Democrats have fled the party, it is also losing labor.  

             Since 1998 special sessions have become the norm—three for every four years—and there were partial or near shutdowns in 2001, 2005, and 2011.  In 2009 Pawlenty used his unallotment power to balance a budget and end a legislative session.  In all these instances, the Minnesota Courts had to step in to resolve political disputes.  All these instances point both not only to the political forces dividing Minnesota, but all were examples of constitutional crises; specifically, what to do when the political process breaks down and fails to perform according to the procedures outlined in the State Constitution.

            Now we have another and more glaring constitutional crisis. It appears to have started on Tuesday, May 30, the when governor announced that he was signing all the budget bills after yet another special session.  Yet, the state constitution gives the governor the right to line-item veto specific budget items. The governor chose to line-item veto the money that would fund the state legislature for the next two years.  The governor said he was doing this for two reasons.  First, he did not like what he called a “poison pill” provision in the tax bill that would defund the Minnesota Department of Revenue if he vetoed that bill.  Second, in a letter to the legislature he said that he would only authorize funding for the legislature’s operation if they agreed to specific changes in the budget bills he signed.  This would necessitate yet another special session.

            This battle has triggered a major political and constitutional battle in Minnesota politics.  One constitutional question is whether the legislature can defund a state agency many deem essential without violating the State’s separation of powers or single subject clauses in the constitution.  Conversely, can the governor use his veto to defund the legislature, also without violating this clause?  These constitutional questions form the context for perhaps a major political battle and negotiations, but it is also certain that the Minnesota Supreme Court may be asked to settle these questions, as it looks as if the state legislature is going to the court to sue the governor. 

In addition to the legal battles between the governor and the legislature, this week the Minnesota court of Appeals upheld a law passed by the state legislature two years ago that stripped away some of the powers of the State Auditor by giving counties the discretion to hire private auditors.  This legal battle raises separation of powers issues, but also questions regarding the State Constitution’s single-subject rule which mandates that legislation may only incorporate a single-subject.  The law removing some of the Auditor’s powers was included in another larger bill.

While Dayton’s line-item veto is the immediate cause of the constitutional crisis, flagrant violation of the single subject rule by the legislature is the real culprit.  Historically, the single-subject clause and the line-item veto are connected and rooted in fear of legislative mischief that corrupted state legislatures across the country.  Back then state legislatures were hotbeds of graft, corruption, and political shenanigans.  The single-subject rule was adopted in many states, including Minnesota, to prevent voter confusion, log-rolling, and the slipping into major bills extraneous provisions under the cover of darkness.  If the single-subject provision was unable to police the legislature, giving governors a line-item veto would allow them to extract improper appropriation provisions from bills.

The stripping away of the State Auditor’s powers was attached to a larger unrelated bill under the cloak of darkness.  The same can be said about the legislature’s poison pill in the tax bill.  But even if they were not hidden as the Republican legislative leaders contend, they still violated the letter if not the spirit of the single-subject rule.  They also point to how leadership has failed to enforce germaneness rules that would keep policy and appropriation bills separate.  Viewed in this context, the governor’s line-item veto was constitutionally under-minded.  Yes, Dayton could have vetoed entire omnibus budget bills, but that would have triggered another political and constitutional crisis in terms of another governmental shutdown.  No matter the choice Dayton faced, there was a constitutional problem.

Viewed in isolation Dayton’s line-item vetoing of the legislature’s funding is constitutionally wrong.  He cannot use that veto to negate or undermine the authority of another constitutionally-explicit branch of the government—this is a major separation of powers issue.  Yet if the only lawsuit filed is one by the legislature then that may be the decision the Minnesota Supreme Court is forced to bring.  However, there needs also to be a lawsuit brought by legislators—and Senator John Marty is contemplating one—raising the single-subject rule to many of the omnibus bills passed this term.  They should also join the State Auditor in her appeal to the Supreme Court.  Why?  If the Court is given the opportunity to rule on both the line-item veto and the single-subject rule then it would perhaps be able either to join the cases or resolve them in a way that defines the proper limits on what the legislature can do, thereby also drawing lines regarding what the governor can do.  Defining the limits of the single-subject rule and the line-item veto would then also clarify the separation of powers issue.

Of course, the Supreme Court could take another approach-refuse to grant jurisdiction to the Republican challenge to the governor, ruling the matter a political question for them to work out.  While at one time that would have been a viable solution, prior Minnesota court decisions to fund the state during a shutdown, over unallotment authority, and even over the single-subject rule make that option nearly impossible.  The constitutional crisis already has engulfed the state court system and it is not clear it can simply walk away.

Dissing Democracy Minnesota Style

The 2015 Minnesota legislative session and the soon-to-be special session will be noted for  passing few laws, failing to get its work done on time, and simply for sidestepping important policy choices that it needed to address.  But it should also be noted for its contempt for open government, democracy, and respect for the State Constitution.  In effect, it is a simply dissing of democracy and the rules for process for how government should operate.

Closed Door Budget Negotiations
Consider first the most obvious and blatant assault on democracy–the behind the door negotiations to resolve the budget.    It’s bad enough when legislative leaders and the governor did private talks and deals on the budget at the governor’s mansion.  Bad enough when votes take place at the end of session at the wee hours of the morning.  Bad enough when they take place in impromptu conference committee hearings that effectively exclude the public and most legislators.  But now the talks to resolve the disputes over the three budget bills are being done in private between Governor Dayton and Speaker Daudt.  No public, no media, no other legislators.  The deal they carve will be presented as take-it-or-leave-it to other legislators in a special session that will be perfunctory at best.   There is no real accountability and public inspection of these negotiations, no real chance to raise objections, and no real deliberation and debate.  Public matters such as the state budget should be done in public, not behind closed doors as if this were corporate America.

Big Money Wins
Second, Democrats and Republicans joined together with the governor to eliminate the political contribution rebate (PCR) program.  These program, one of the true hallmarks of political reform in Minnesota, allowed for Minnesotans to contribute up to $50 per year and have it rebated to them by the state.  The PCR was nationally hailed as a powerful campaign finance reform tool that encouraged small contributors to give.  Repeated studies pointed to how legislators successfully used it to reduce their dependence on large donors and special interests.  It was also a mechanism to help  third party candidates.
But now it’s gone.  Governor Pawlenty killed it once and it came back.  But now it is gone again, and probably dead forever.  It, along with horrible legislation passed a couple of years ago raising contribution limits and weakening disclosure laws in Minnesota have just about killed off all of the reforms this state had adopted in the early 1990s.  Minnesota has effectively deregulated  money in politics, benefitting noone except for special interests, big money, and the incumbents who voted for these reforms.

Gutting the State Auditor’s Office
Finally, consider legislation that guts the State Auditor’s Office.  The State Auditor is an officer provided for in the Minnesota Constitution and its primary responsibility is to audit local governments in the state to make sure that they are spending their money appropriately.  It is an important position in the state that promotes accountability to ensure tax dollars are spend the way they should be.  Yet the legislature voted to privatize the audit functions, giving local governments the option to hire private audit firms.  The governor signed this bill but now seems to want the legislature to undo this.
The governor should have never signed a bill that allowed for this.  Nothing against private auditors, but this is the constitutional duty for the Auditor.  The privatization will cost tax payers more in the long run–as is typically the case with many privatizations.
But in many ways, it probably does not matter whether the governor wins to get this privatization overturned–the provision is probably unconstitutional, conflicting both with Article V, section 1, of the Constitution creating the office of the Auditor, and Article III, section 1, the separation of powers clause of the Constitution.
There is a rich jurisprudence in Minnesota that carefully protects and respects separation of powers.   One of the best cases on this issue is State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777 (1986).  In that case at issue was a  1985 law enacted by the legislature, in special session, which transferred most of the responsibilities of the State Treasurer, an executive officer, to the Commissioner of Finance.   The reason for the transfer of responsibility was that the Treasurer, then a constitutional officer, essentially abandoned the state and was no longer performing his duties.  The Supreme Court rejected this transfer of duties.
The Court reasoned that even though the duties of the treasurer were prescribed by law, that “does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.”  One branch of government, or even another part of the executive branch, cannot act in such a way either to undermine the core functions of another constitutional part or make it impossible for it to perform its constitutional duties.
Other Minnesota cases have reinforced that point.  In In re Marriage of Sandra Lee Holmberg at issue was whether a law regarding  child support  giving administrative law judges power to modify district court orders and to assume duties of district court judges violated the state separation of powers clause?  The Court said yes, arguing that the transfer of power violated separation of powers.   In supporting its decision the Court referred to precedents and decisions in other states reaching the same conclusion.
In  State v. Baker the Minnesota Supreme Court voided a state enhanced gross misdemeanor statute as unconstitutional because it allowed for local imprisonment without a 12 person jury trial.  Here the Court said that the law sought to redefine crimes to avoid the constitutional mandate.  In State ex rel Birkland v. Christianson, the Court declared that the legislature cannot change form of government which would change separation of powers.  In In re Temporary Funding of the Judicial Branch, a case involving funding for the judicial branch as a result of a government shutdown in Minnesota, the Supreme Court ruled that it had the authority to require the legislature and governor to fund the courts, for failure to do so would prevent the judiciary from performing its constitutional duties and therefore it would be a separation of powers violation.  Similar conclusions were reached regarding separation of powers and constitution in Clerk of Court's Compensation for Lyon County v. Lyon County Commissioners.
The point simply is that there is good reason to conclude that this privatization is unconstitutional and in a law suit the Auditor would likely prevail.  Given these precedents, it should be clear that this legislation does nothing more than express contempt for the State Constitution.  It does that, along with the current negotiations on the budget and the elimination the PCR.  The three together are a huge step backward for transparent, fair, and constitutional government in Minnesota.  Process matters.

Amending the Minnesota Constitution

Hi all:

On Thursday, November 1, 2012,  I presented  a talk at Central Lakes College, in Brainard, Minnesota entitled "Amending the Minnesota Constitution."  I prepared a Powerpoint presentation on the history of the amending the Minnesota Constitution that also included a discussion of the two amendments on the ballot this fall.  I upload the Powerpoint presentation to my web page and you can find it there.  At my Web page scroll down on the left until  you get to the section entitled "Amending the Minnesota Constitution."  Here  you will find and can download my presentation.   Feel free to share.

Minnesota's Constitutional Politics and the Tyranny of the Majority

 (Please note:  This blog is drawn from my comments at a October 26, 2012 conference at Hamline University sponsored by the Hamline University Law School that discussed the two constitutional amendments.)

The case against the Marriage and the Elections amendments can be made on many grounds.  But one argument often overlooked is that their proposal and perhaps adoption by the people represents what America’s constitutional framers feared most–the tyranny of the majority. 
    Consider the context that influenced the framing of the Constitution  in 1787.  On the one hand the framers feared strong central authority and power as exemplified by King George III.  Our American Declaration of Independence is literally an indictment of the king.  Conversely, events such as Shay’s rebellion 1786 instilled a fear of mob rule and the instability that accompanies it.  Thus, the writing of the Constitution set a task: Create a government powerful to maintain stability yet not too powerful to threaten individual liberty.
    This problem of politics is the subject of the Federalist Papers.  According to Alexander Hamilton and James Madison in Federalist 47 and 49, "all government rests on opinion" (Federalist, p. 329).  Public opinion is composed of the sentiments and passions of the majority of  people organized together for particular purposes.  Arguably the strength of popular government is that it rests upon public opinion, drawing its democratic impulse and authority from the consent of the government.   Yet, the weakness of republican government also rests upon public opinion. Alone, humans can be reasonable but not in crowds, at least this is the sentiment expressed in the Federalist.  Crowds and the crowd sociology turns individual thoughts into restless sentiment and passion.  Public opinion is both popular sentiment and popular sovereignty.  The sentiment of public opinion is the ruler in a popular democracy yet this sentiment is not firm but unstable, subject to frequent changes, and to fits of passion and excess.  But the real danger is how such public opinion can decay  and become destructive, degenerating into a faction.
    What is a faction for Madison and how do factions relate to speech and public opinion?  According to Madison:

By a faction, I understand a number of citizens, whether amounting to a majority of minority of the whole, who are united and actuated by some common impulse of passion, or interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.

Madison is saying four things about factions.  One, people join factions because of some common interest or, two, because of some common passion.  Three, factions can either be composed of a minority or a majority of the population.  However, while Madison is concerned about both types of faction, his real concern is with majority factions because the regular votes of the majority and the weakness of the minority will prevent the latter from being a real threat to others.  Finally, a faction is not defined as simply any band of people who share common impulses or interests.  Their association must be destructive of the rights of others or of the interests of the entire community.  The latter suggests that there is an identifiable common good that can be known and should be defended .  Individuals banding together, can do great things and pursue the public good, but they can also let their passions and interests run wild, thereby threatening the rights of others and the public good.
    Individuals have a propensity to band together for common base interests and desires and this pursuit of desires can constrain or distort the rights of others including the community.
    If a faction is simply a small portion of our society then the majority can outvote them. But what if a faction is composed of a majority, then what?   This is the question Madison asks and in Federalist 10 he states the core problem facing the framers: 

    When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.

The issue for the framers was how to preserve individual liberty and popular government from the threats of majority faction.  Phrased otherwise, the problem, as Alexis DeTocqueville would later ask, is how can the American republic deal with the threats of the tyranny of the majority?  Another way of stating it: How to balance majority rule with minority rights?  How does one allow for majority opinion to rule, as it should in a popular government, but not let it become destructive to minority rights?
    The constitutional solution is a complex combination of ways to break up political power and slow down the forces of political change.  It involves appeals to separation of powers, checks and balances, federalism bicameralism, and the enabling of a robust competitive political process to prevent anyone group from getting too powerful.   Bit is also included eventually in 1791 the adoption of a bill of rights.
    The Bill of Rights takes some issues out of politics.   As Justice Jackson eloquently stated in  West Virginia v. Barnette:

    The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The essential problem for American democracy is balancing majority rule versus minority rights.  Majorities get there way on most issues, but not when it comes to minority rights.  And the problem with ballot measures such as the two constitutional amendments is there legacy in targeting minority rights.
    There is unfortunately an ugly side to American politics where fear and prejudice have prevailed.  The Salem witch trials, slavery, denying women the right to vote, the McCarthy era, and Stonewall.  Majorities do ugly things and the constitutional framers were correct that pure majority rule needs to be tempered by minority rights.
    Seldom do ballot measures and votes by majorities protect minority rights. Barbara S. Gamble’s “Putting Civil Rights to a Popular Vote,” 41 American Journal of Political Science 245 (1997) examined local and state ballot measures related to AIDS testing, gay rights, language, school desegregation, and housing/public accommodations desegregation), from 1960 to 1993. that Minorities almost always lose. In the eighty-two initiatives and referendums surveyed in this Article, majorities voted to repeal, limit, or prevent any minority gains in their civil rights over eighty percent of the time.
        Gamble also found that measures aimed at limiting the civil rights of minority groups were much more successful than other types of initiatives and referendums. She noted that a previous study of ballot measures between 1898 and 1978 found that only 33% of measures  succeeded.  Low passage rates change dramatically when it came to the  limitation of civil rights is the subject of the proposal.  In this case, 78%  of the 74 civil rights measures that she studied resulted in a defeat of minority interests.
    Gamble's findings are consistent with those of political scientists Haider-Markel and Meier. Mei-er and Haider-Markel's study on gay ballot initiatives found that 77% of those seeking to repeal the rights of lesbians and gays were successful in doing so, and in the 13 attempts to extend rights of gays and lesbians, 84% were unsuccessful.  Gays and lesbians, as well as other minority groups, lose when their rights go to the ballot box.
    What does all this mean?  Direct democracy and majoritarian politics inconsistent with the broader substantive values of the Constitution and Bill of Rights which the Framers understood.  They recognized the problems of the tyranny of the majority and the threat that the ballot box poses to individual liberty.  In the case of the marriage amendment, it singles out a specific group for a special disability, in ways that the Supreme Court found unconstitutional in Romer v. Evans.  Gays and lesbians (and transgenders too) are the classic discrete and insular minority  that the Supreme Court speaks of in footnote four of United States v. Carolene Products.  Groups unable to defend themselves in the normal political process are those which the judiciary are supposed to protect against the tyranny of the majority.
    Moreover, Carolene Products also spoke of special judicial scrutiny in cases where legislation circumvents the normal political process and closes it down.  Normally we say that if you do not like a specific policy use the ballot box to change it.  The Elections amendment targets the political process, seeking to close down and make it more difficult to vote.  It and the Marriage amendment, by constitutionalizing these policies, aim to circumvent the normal legislative process and place political change beyond the reach of ordinary legislation.
    The opening three words of the Constitution are “We the people.”  Our nation is one that is supposed to be inclusive, respecting the rights of all to compete fairly and equally in the political process.  The tragedy of the Marriage and Elections amendments is how they undermine the promise of We the People and hoe they are inconsistent with the values that our Framers endorsed.
   

Voter ID: A Costly, Unnecessary Abuse of the Constitution

This blog appears in the August, 2012 Minnesota Bench & Bar Journal.

From its 1858 statehood Minnesota has been a leader in voting rights.  We take pride in the fact that Minnesota leads in the nation in voter turnout, and it has a history and bipartisan tradition of encouraging citizen engagement.  Minnesota is also a state of common sense, embodying a pragmatic “If it ain’t broke don’t fix it” mentality.  It is for these two reasons and the cost borne to the state and individuals that the proposed amendment requiring voter identification at the polls should be rejected.

Minnesota’s Constitutional Tradition

Minnesota in its constitutional convention was one of the first states to debate voting rights for African-Americans.  Even though both the United States and Minnesota supreme courts have declared voting to be a fundamental right,¹ it is textually explicit in Article VII of the State Constitution. Among the 211 previous attempts to change Minnesota’s constitution, 12 adopted amendments have addressed individual rights, with five of them seeking to expand voting rights.  In the entire history of the state only one constitutional amendment, in 1896, restricted voting rights.  Here it limited the practice in place that allowed aliens or noncitizens to vote in Minnesota.  Minnesota’s tradition then is one of expanding the franchise, not limiting it.

The voter ID amendment is an abuse of our constitution and tradition.  Minnesota’s Bill of Rights offers more protection for individuals than found at the federal level. We protect freedom of conscience and privacy more vigorously than does the U.S. Bill of Rights. We also protect some rights—hunting and fishing, and peddling farm produce—that are not found at the federal level. We have constitutionalized our commitment to education and support for the environment and the arts. This reflects our culture and who we are.

The voter ID amendment wrongly sidesteps the political process and challenges our state identity. Instead of trying to use the normal legislative process, it is an effort to bypass it and our legacy.

The Absence of Fraud

Some will claim that voter photo identification is needed to prevent voter impersonation and fraud at the polls. The reality is that in-person voter fraud is so insignificant in Minnesota and around the country that one has a better chance of being struck by lightning than having it affect the outcome of an election.³

What evidence does exist documenting voter fraud?  Nationally, the three most persistent claims of voter fraud come from the Wall Street Journal’s John Fund,⁴ a report from the Senate Republican Policy Committee in Congress,⁵ and the Carter-Baker Report.⁶ None of these studies have documented provable and significant voter fraud.  The Carter-Baker report asserts that: “[W]hile election fraud is difficult to measure, it occurs.”⁷ Proof of this assertion is citation to 180 Department of Justice investigations resulting in convictions of 52 individuals from October 2002 until the release of the report in 2005.⁸ Yet while the Carter-Baker Commission called for photo IDs, it also noted that: “[T]here is no evidence of extensive fraud in U.S. elections”⁹ As with other studies, absentee voting is singled out as the place where fraud is most likely to occur.¹⁰ 

As the Brennan Center stated in its analysis and response to the Carter-Baker call for a voter photo ID: “None of the Report’s cited examples of fraud stand up under closer scrutiny.”¹¹ Even if all of the documented accounts of fraud were true, the Brennan Center points out that in the state of Washington, for example, six cases of double voting and 19 instances of individuals voting in the name of the dead yielded 25 fraudulent votes out of 2,812,675 cast—a 0.0009 percent rate of fraud.¹² Also, assume the 52 convictions by the Department of Justice are accurate instances of fraud.  This means that 52 out of 196,139,871 ballots cast in federal elections, or 0.00003 percent of the votes, were fraudulent.¹³ The chance of being struck by lightning is 0.0003 percent. 

Similarly, Minnesota is devoid of significant in-person voter fraud.  The state has witnessed two close elections and recounts in 2008 with the senate contest between Al Franken and Norm Coleman and then in 2010 with Mark Dayton and Tom Emmer.  In both cases the recounts failed to show any real in-person voter fraud or impersonation at the polls.  Even in its oral arguments before the Minnesota Supreme Court in Coleman v Franken,¹⁶ Coleman’s attorney Joseph Friedberg, when asked by a Justice whether widespread voter fraud existed, conceded that it had not.

The Minnesota Majority has alleged many instances of voter fraud over the years.  Mike Freeman, Hennepin County Attorney, has investigated many of them in his jurisdiction.  He found none involving in-person voter fraud.  Yes, 40 ineligible felons voted, but voter ID would not prevent that because drivers’ licenses do not indicate criminal records.¹⁷ In 2008 seven voter-impersonation charges were investigated by Minnesota county attorneys; there were no convictions.¹⁸

Some election fraud may exist, but it is de minimis in Minnesota.  It takes place not at polling places but as studies have repeatedly pointed out, in the absentee voting process which will not be addressed by voter ID.

The Costs of Voter ID

What are the costs associated with adopting the amendment?  Minnesota will spend millions of dollars issuing identifications for those who currently lack them.  The Secretary of State has estimated that 215,000 Minnesota adults lack a state-issued ID. Minnesota and local governments will spend millions of dollars to implement the new ID requirements. Additionally, individuals will bear costs to secure these IDs.  In Weinschenk v. State¹⁹ the Missouri Supreme Court noted that approximately 3 percent to 4 percent of the state population lacked an appropriate identification to vote under its voter ID law.  It found that for many the costs of getting the ID were significant, even if the state issued it for free.  Many individuals lacked state birth certificates, or were born out of state, or naturalized, and they lacked the required documents to secure the state ID.  Many of these documents cost money, in addition to the time and ability to navigate the bureaucracy to obtain them.²⁰  For these reasons, the Missouri Supreme Court invalidated its voter ID law under its state equal protection and right to vote clauses.

Many of the individuals who lack valid IDs are the elderly in nursing homes, recent immigrants to the state, students away at school, and those who have recently moved into a new home or apartment.  Imagine trying to get your elderly mom or grandmother out of a nursing home and into a state driver’s license office to get new photo identification.  The costs to these individuals may be enough to disenfranchise or discourage them from voting.

Legal Issues

Finally there are the legal issues surrounding voter ID that could delay implementation for years and cost million to defend.  The Supreme Court did uphold Indiana’s voter identification law, but it was a facial challenge.  The Court did note that as applied challenges are possible if the law is discriminatory. In Minnesota, challenges to the voter ID amendment could range from violation of the single-subject rule²¹ to concerns over vagueness in determining what constitutes a “valid” photo identification as described in the amendment’s description.

Conclusion

The voter ID amendment is bad public policy.  It runs against the grain of the state’s constitutional tradition of expanding rights and encouraging voting, it is not needed given the absence of significant in-person fraud, and it will be costly to the state and citizens.

Notes

¹ Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); State ex rel. South St. Paul v. Hetherington, 240 Minn. 298, 303, 61 N.W.2d 737, 741 (1953).

² “Wisconsin Recall Exit Polls: How Different Groups Voted,” New York Times (06/05/2012) http://tinyurl.com/7h7oey8 (site last visited on 07/23/2012).

³ David Schultz, “Less than Fundamental: The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement,” 34 William Mitchell L. Rev. 484 (2008); David Schultz, “Lies, Damn Lies, and Voter IDs: The Fraud of Voter Fraud,” Harv. L. & Pol. Rev. On-line (03/17/2008). Available at http://tinyurl.com/28j5qcq (site last visited on 07/23/2012).

⁴ John Fund, Stealing Elections: How Voter Fraud Threatens Our Democracy. San Francisco: Encounter Books, 2004.

⁵ United States Senate Republican Policy Committee. “Putting an End to Voter Fraud” (2005). Document located at http://rpc.senate.gov/_files/Feb1504VoterFraudSD.pdf (site last visited on 01/02/2012).

⁶ Center for Democracy and Election Management, American University.  “Building Confidence in U.S. Elections: Report of the Commission on Federal Election Reform” (2005), [hereinafter Carter-Baker Commission].  Document located at http://www.american.edu/ia/cfer/report/full_report.pdf (site last visited on 07/23/2012).

⁷ Id. at 45.

⁸ Id.

⁹ Id.

¹⁰ Id. at 46.

¹¹ Wendy Weiser et al., Response to the Report of the 2005 Commission on Federal Election Reform. New York: Brennan Center for Justice (09/19/2005), p. 9 (emphasis omitted). Available online at http://tinyurl.com/d7vamom (site last visited on 07/23/2012).

¹² Id.

¹³ Id. at 10.

¹⁴ 553 U.S. 181 (2008)

¹⁵ Indiana Democratic Party v. Rokita. 2006. 458 F.Supp.2d 775, 792 (D. Ind. 2006).

¹⁶ 767 N.W.2d 453 (Minn. 2009).

¹⁷ Mike Freeman, “Hennepin County Attorney:  Historically We Expand Voting Rights,” Star Tribune (02/20/ 2011).

¹⁸ Jay Weiner, “Voter ID issue advances at Capitol, but facts continue to get in the way,” Minnpost, located at http://tinyurl.com/7fthfpg (04/25/2011) (site last visited on 07/23/2012).

¹⁹ 203 S.W.3d 201 (Mo. 2006).

²⁰ Id. at 214-15.

²¹ Minnesota Constitution, Article IV, section 17:  “No law shall embrace more than one subject, which shall be expressed in its title.”