Oral Argument Preview: Schroeder vs. Simon

Adam Shelton · November 29, 2021

Tomorrow, the Minnesota Supreme Court will hear oral arguments in a much-anticipated voting rights case: Schroeder v. Simon. The case is a challenge brought by the ACLU to Minnesota’s system for restoring voting rights to felons. Minnesota restores voting rights for felons who have been released from prison and completed their sentences. But the state does not restore voting rights to felons who are released from prison into the community to complete the rest of their sentence. The ACLU is representing the latter group, arguing that not restoring their voting rights violates equal protection.

That sounds like a straight-forward civil rights case. But once you examine the constitutional text underlying it things get a bit weird. It’s not the ACLU’s fault; it’s the Minnesota Supreme Court’s decades of neglect of a language at the core of the Minnesota Constitution. The Institute for Justice filed a brief in the case, however, that tells the court how it can make things right.

The ACLU sued under the Minnesota Constitution, meaning their equal protection challenge is proceeding under the Minnesota Constitution and not the Fourteenth Amendment of the U.S. Constitution. But the Minnesota Constitution lacks a textual equal protection clause. Instead, the Minnesota Supreme Court has interpreted Article I, Section 2, of the state constitution as guaranteeing “equal protection” even though it says neither “equal” nor “protection.”

The first sentence of Article I, Section 2, of the Minnesota Constitution says: “No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.” The Fourteenth Amendment says: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” See the similarities? No? Well, the Minnesota Supreme Court does. And not only has the Minnesota Supreme Court determined that Article I, Section 2, guarantees equal protection—without so much as an explanation—but it has determined that outside one small exception, it provides exactly the same protection as does the Fourteenth Amendment.

This is why my colleagues and I at the Institute for Justice decided to file an amicus brief. In the brief, we argue that the Minnesota Supreme Court should use this opportunity to return to the text of Article I, Section 2. Doing so would make clear that Article I, Section 2, is not only textually distinct from the Fourteenth Amendment, but that there are also important historical differences between the two. First, and most importantly, Article I, Section 2, was adopted over a decade before the Fourteenth Amendment. This alone makes it illogical to interpret Article I, Section 2, in line with the federal jurisprudence under the Fourteenth Amendment. But that is not all. The Civil War and resulting protections for the freedmen were critical catalysts for adopting the Fourteenth Amendment. This motivation was absent from Article I, Section 2, as it was adopted four years before the War. Instead, that clause should be interpreted at a due process clause protecting the “rights or privileges” of Minnesota citizens. And, far from failing to guarantee protections to Minnesotans, the clause as written has the potential to extend far more expansive protections than are recognized today.

This being the case, we urged the Court to, at a minimum, interpret Minnesota’s equal protection guarantee as separate from the guarantee laid out in the Fourteenth Amendment. Up until 2020, the Court often treated the two guarantees as separate. In fact, Minnesota had its own three-part heightened scrutiny test that it applied in lieu of the federal rational basis test. But in 2020, in Fletcher Properties v. City of Minneapolis, the Court rejected this three-part test in favor of the federal rational basis test—under which the vast majority of challenged laws survive review—for all but a slim number of cases.

This case is one of the few situations in which Minnesota still might apply its own state-specific standard. But it is silly that the ACLU and the individuals they represent have to rely on a sliver of heightened protection. Minnesota’s equal protection guarantee is in no way similar to that of the Fourteenth Amendment. And Minnesota for decades recognized this difference and applied their own distinct test.

This is how it should be. State constitutions are an important font of rights for individuals because they can protect more rights, more meaningfully, than the U.S. Constitution, which sets only a floor that the states cannot go below. The Minnesota Supreme Court should take the opportunity presented here to rethink their own equal protection jurisprudence and return to interpreting the Minnesota Constitution independently from the U.S. Constitution.

Adam Shelton is IJ’s Immunity and Accoutability Fellow.