Contributed by: Teresa Nelson, Legal Counsel
Attorneys for the ACLU-MN today submitted a reply brief in our challenge to the language of the ballot question for the proposed photo ID and provisional ballot constitutional amendment. Our petition asks the Minnesota Supreme Court to strike the ballot question from the ballot because it is unconstitutionally misleading. Our brief first rebuffs the Legislature's claim that the Minnesota Supreme Court lacks jurisdiction to decide the constitutional adequacy of a proposed ballot question. The brief notes that there is ample precedent for the Court's jurisdiction including a 1932 decision, Winget v. Holmes, that squarely addressed the issue of the Minnesota Supreme Court's role in reviewing constitutional amendment ballot questions and found that the Court does have jurisdiction, and a decision issued by the U.S. Supreme Court over 200 years ago, Marbury v. Madison, that established the bedrock constitutional principal of judicial review.
The brief also refutes the Legislature's claim that they need only "properly describe...the general subject of the proposed amendment" in a ballot question. The brief argues that the Legislature's proposed standard deviates substantially with the Court's well-established standard requiring that ballot questions must not be "so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit the [amendment] to a popular vote." Breza v. Kiffmeyer. The brief goes on to argue that, even if the Legislature's standard were the appropriate standard, the ballot question does not dimply describe the general subject of the proposed amendment. The Legislature instead chose a ballot question that sets out to describe the meaning and effect of the amendment. As such, they cannot describe the meaning and effect of the amendment in a false and misleading way. This standard is consistent with Minnesota's common-law fraud principles. In the case of common-law fraud, even when somebody does not have a duty to speak regarding a monetary transaction, once they do speak, they must speak truthfully and not omit material facts that would tend to mislead the listener. In contrast, the ballot question contains affirmative misrepresentations and omits material facts that will mislead voters.
Oral argument in the case is scheduled for Tuesday July 17th at 1:30 PM in Courtroom 300, Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Boulevard, Saint Paul, Minnesota. A decision in the matter is expected by mid-August.