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home : opinion : opinion September 15, 2014

10/29/2012 10:47:00 AM
Editorial Unconstitutional Amendment

Minnesota legislators were so busy trying to figure out a way to give Ziggy Wilf a billion taxpayer dollars that they failed to give the constitutional amendment requiring a photo id enough attention to even make the amendment constitutional under the U.S. Constitution. As presently worded, the amendment requiring all in-person voters to present a photographic identification would deny many Amish, fundamentalist Christians, Jews, Muslims and other faiths that have objections to photographs from being allowed to vote, a violation of their rights under the U.S. Constitution and upheld by the U. S. Supreme Court in 1985, when it ruled that states may not require a photographic identification from a citizen seeking to exercise a right due them under the law.

Proponents of the amendment have argued that it is constitutional because the U.S. Supreme Court did not strike down Indiana's voter id law, which also requires photo identification. That ruling did not really address the constitutionality of photo identification, it merely found that the petitioners had not presented evidence to support a finding that the law was unconstitutional on its face.

The case, Crawford et al v. Marion County Election Board et al, was brought by Democrats and civil rights groups in anticipation of the law violating citizens' rights. Bush Administration Solicitor General Paul Clement urged the court not to take the case because no one had yet been denied the right to vote under the law. It is rare that the Supreme Court grants review to a law where there has been no actual problem with the law, but for some reason it chose to accept this case. Its decision found that the petitioners had not presented sufficient argument for the law to be declared unconstitutional.

However, Justice Stevens, who wrote the opinion, Justice Kennedy and Chief Justice Roberts said that in another case in which a voter's rights had been violated, a plaintiff could prevail.

Crawford v. Marion County did not really address the question of using photographic identification and it did not even touch on religious freedom.

The U.S. Supreme Court did, however, address both issues in its ruling in the case of Frances Quaring, a Nebraska Christian who objected to having her photograph appear on her drivers license. The case, 728 F 2nd 1121: Frances J. Quaring, Appellee v. Harry "Pete" Peterson, Director of the Department of Motor Vehicles, State of Nebraska; William Edwards, deputy Director of the Department of Motor Vehicles, State of Nebraska, Appellants, addressed the requirement of the state for photo identification for state interests which included:

• ensuring only persons with valid drivers licenses operate motor vehicles;

• promoting state's compelling interest in public safety;

• giving police an accurate and instantaneous means of identifying a driver.

The court found that these interests of the state did not justify violation of a citizen's right to freedom of religion and did not justify requiring a photographic identification process.

Note the similarity to the arguments Minnesota proponents of the voter id amendment use. Proponents argue that the amendment will ensure that:

• only persons with a valid photographic identification will be allowed to vote;

• it will promote the state's compelling interest in election integrity;

• it will give election judges an accurate and instantaneous means of identifying voters.

If the Supreme Court found those arguments deficient in the past, it is unlikely to be persuaded by them today. The U.S. Supreme Court ruled that states cannot require a photographic identification in any case where it may result in a citizen being denied an essential right, and being allowed to vote is a more essential right than being allowed to drive.

I discussed this with our local legislators and they argue that they can write legislation interpreting the amendment to allow other forms of identification than photographic but, even if that were true, if their intent is to allow other forms of identification, then why did they spend so much time and cause so much controversy getting an amendment for a photo id on the ballot?

I doubt they can lawfully write legislation violating the provision in the amendment that states quite clearly: " All voters voting in person must present valid government-issued photographic identification before receiving a ballot." Laws must comply with the constitution and its amendments, and this one pretty clearly requires photographic identification.

Our legislators suggested the sentence in the amendment, "All voters, including those not voting in person, must be subject to substantially equivalent identity and eligibility verification prior to a ballot being cast or counted," will allow them to exempt some voters from being required to present a photo id. That is a ludicrous proposition which would create different classes of citizens and insurmountable problems for election officials.

The voter id law is unconstitutional, foolish and expensive. It should be rejected and sent back to the legislature for reconsideration.

Larry Dobson


Claremont Service




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