ST. PAUL, Minn. -- The Minnesota Supreme Court is extremely reluctant to undo something that's been done by the State Legislature, and that applies almost doubly to any ballot question lawmakers send directly to the voters in the form of a constitutional amendment.

But that's exactly what the High Court is being asked to do by critics of the Voter Photo ID amendment. They contend the ballot question voters will see in November is misleading because it doesn't fully explain how the elections system will change if the amendment passes.

"Don't the people have a right to vote on something that's not deceptive?" Justice Paul Anderson asked Tuesday during a hearing on the lawsuit brought by the AARP, ACLU and Common Cause.

"There's a law that says when we're dealing with a fundamental right like voting, we are to cast a skeptical eye."

The ballot question makes no mention of the fact that a "yes" vote will create a new provisional voting system in Minnesota.

Registered voters who arrive at the polls without valid photo ID, or people who register on Election Day -- something currently legal in Minnesota -- will be issued "provisional ballots." That ballot won't be counted, or added to the vote totals, until the voter's identity and current address are verified.

"The amendment establishes a provisional ballot system, but the ballot question doesn't reference it," Bill Pentelovitch, an attorney for the groups challenging the ballot, told the court.

But Thomas Boyd, an attorney representing the legislature, said the public will have ample opportunity to read the full amendment before Election Day even if it's not on the ballot.

"They (the Legislature) published the amendment as a session law, and it is available for all to read," Boyd told the justices.

"I don't see how that could be considered deception."

The amendment's wording also establishes a new standard for ID verification, that eliminates the current vouching system which allows neighbors to vouch for voters who recently moved into precinct and must register on Election Day.

Justice Alan Page went as far as calling it a "bait and switch" situation, with the caveat it may sound crass in reference to an act of the legislative body.  He said, depending on how the provisional voting system is implemented, it could end same-day registration.

But Justice David Stras said the new voting system may be implied by basic purpose of the constitutional amendment.

"One could make the argument that photo ID is the main part of this amendment, and the provisional balloting is the way to implement it," Justice Stras said.

"In other words, you really need a provisional ballot for those people who don't have a photo ID."

Anderson noted that one out of six voters who went to the polls in Minnesota, roughly 450,000 people, registered on Election Day.  With that many people potentially affected by the provisional voting system, he wondered why it wasn't mentioned on the ballot.

He also appeared to be troubled by the fact the Legislature has yet to decide how to implement the amendment, or what will be accepted as valid photo ID at the polls.  That's to be decided during the 2013 legislative session, the same year the voter ID system would go into effect if it passes.

Pentelovitch cited that as a flaw in the ballot question.

"It just says a 'valid photo ID' so a voter would not know they couldn't use their Jewish community center card or my Sam's Club card or whatever else," he said.

His opposing attorney, Boyd, said the legislature will be able to settle those issues and election administrators would make sure voters are informed by 2013.

Anderson wondered aloud if the legislature will strictly interpret the voters' decision at the polls or make inferences that aren't part of the ballot question's wording, and say it's what voters decided.

"I'm in a position where I want to make sure the people understand what they're voting on," he said. "And I don't want to be in a position where you come back and say, 'Well, this is what they meant'?"

Next Move

The justices clearly struggled with the question of what remedies would be available to them if they were to side with the plaintiffs. The court will most likely rule on the issue before August 27th, the cut-off date for ordering general election ballots from the printers.

"Why shouldn't we be hands-off with this particular question?" Justice Stras asked. "Why shouldn't we say this is a political question that's committed to the legislature?"

Pentelovitch, citing case law, said the Minnesota Supreme Court assumed as long ago as 1860 the court had the right to review the federal constitutionality of state constitutional questions. And one precedent opened the door to the court stepping in before the voters decided the issue.

The justices could decide to take it off the ballot and ask the legislature to craft a new amendment with language that better reflects the new voting system. They could also order the ballot language changed, but that could jeopardize the delicate balance of power between the judiciary and the legislative branch.

"It's either constitutional and it goes on the ballot, or it's unconstitutional and it doesn't go on the ballot in this form," Pentelovitch told reporters after the hearing.

"And the legislature would have to decide how it is going to go, if it ever does go on again."

The attorney defending the ballot, Boyd, conceded the issue of remedies is a complicated question.

He doesn't want to see the Voter ID amendment knocked off the ballot entirely by the Supreme Court, but if justices choose to rewrite the question they'd be usurping the legislature's authority to write ballot questions.

"The State Constitution is very clear in providing that the legislature, and the legislature alone, is responsible for placing a proposed amendment before the people of this state," Boyd said.

"I don't find it misleading. I find it entirely consistent with the history of the legislature's development formulation of ballot questions."

At least one justice hinted that the lawsuit may be a moot issue, now that Secretary of State Mark Ritchie has changed the official heading of the ballot question. The new heading of the ballot question is:

"CHANGES TO IN-PERSON & ABSENTEE VOTING; VOTER REGISTRATION; PROVISIONAL BALLOTS".

Ritchie cited Minnesota Statutes Section 204D.15, which provides that "the Secretary of State shall provide an appropriate title" for each constitutional amendment.

That move by Ritchie has already been challenged in court lawmakers and the groups that championed the voter ID issue at the Capitol. She same Supreme Court justices will rule on that case as well.

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