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.

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.