Minnesota Lawyer
Secretary of State Mark Ritchie angered conservatives when he altered the titles that will introduce the questions on the ballot. Staff photo: Peter Bartz-Gallagher
Conservatives looking forward to seeing two of their signature issues voted on this November as constitutional amendments were outraged when Secretary of State Mark Ritchie unveiled the titles that will introduce the questions on the ballot.
Backers of the constitutional amendment asking voters if marriage should be defined as a union between one man and one woman and of the amendment seeking to requiring photo ID at the polls are upset that Ritchie, a DFLer, discarded the titles included in the amendment bills and inserted his own.
Republican legislators and conservative interest groups have petitioned the Minnesota Supreme Court to reverse Ritchie’s actions, which were previously approved by DFL Attorney General Lori Swanson. The Supreme Court will hear oral arguments on Tuesday. The hearing, where arguments will be presented separately on behalf of each amendment, is a matter of some urgency because the format for the amendments needs to be ready for the printer by August 27.
At the end of the 2011 legislative session, the Legislature passed the marriage amendment bill with a title stating: “Recognition of Marriage Solely Between One Man and One Woman.” Ritchie rewrote the title to state: “Limiting the Status of Marriage to Opposite Sex Couples.”
The photo ID amendment was passed by the Legislature during this year’s regular legislative session with the title: “Photo Identification Required for Voting.” Ritchie refashioned the title as: “Changes to In-Person & Absentee Voting & Voter Registration; Provisional Ballots.”
Conservative groups like the Center of the American Experiment and Minnesota Majority have issued statements claiming that Ritchie lacks the legal authority to replace the Legislature’s title. But both sides have law and precedent to argue from in making their cases to the justices. And constitutional amendment titles have never generated controversy in the past, leaving the justices without a reference point in case law.
The litigation has prompted some dense amicus briefs, including an offering signed by 19 law professors from the Twin Cities in support of Ritchie’s position.
Among the disagreements in the case, the issue that’s the most deeply imbedded in interpreting state law concerns the separation of powers between the legislative and executive branches. Minnesota Statute 204D.15 reads: “The secretary of state shall provide an appropriate title for each question printed on the pink ballot.”
The amendment backers, who are represented by a couple of prominent conservative attorneys, including Erick Kaardal of Minneapolis, contend the title matter isn’t controlled by the statute. Rather, the statute is trumped by the Minnesota Constitution, which in Article IX gives authority to the Legislature to submit constitutional ballot questions to Minnesota voters. (Governors do not have veto power over constitutional amendment proposals that pass the Legislature.)
The title controversy is a new judicial problem because until 2008, the Legislature had never included titles in its constitutional amendment bills. But when the Legislature passed the so-called Legacy Amendment ballot question in 2008, asking voters to increase the sales tax to pay for outdoors and cultural projects, the legislation did include a title. And Ritchie did not change it en route to the November ballot.
That’s a pivotal point in the petitioner’s brief in the voter ID case, which notes: “Consistent with its decision in 2008, here, the Legislature has exercised its constitutional authority to provide a title for the voter ID amendment. By so doing, it left the Executive Branch with no role in the titling process.”
In a brief by Kaardal in the gay marriage amendment case, he places the Legislature’s constitutional authority as paramount and the statutory direction for Ritchie in Chapter 204D.15 as pertaining only to instances when the Legislature doesn’t include its own title in the bill.
“In other words,” Kaardal wrote, “when the Legislature itself does not fully ‘propose’ the matter to the people, it has designated the secretary of state to complete the portions of the ‘proposal’ that it did not complete. But in the instant case, the Legislature itself fully ‘proposed’ the matter to the people, leaving no power for the Secretary to exercise.”
While the constitution gives the Legislature the sole authority to put amendments before the voters, the opponents of the amendments are arguing that the titles aren’t part of the ballot question that voters will read or the proposed language to be added to the constitution.
One important detail for purposes of the legal briefs is Gov. Mark Dayton’s apparently ceremonial vetoes of both bills after they passed the Legislature. Ritchie’s backers are arguing that the title was part of normal legislation and was struck down by the veto even as the rest of the bill was unaffected by Dayton’s action.
In making the case, the law professors and others point to Gov. Tim Pawlenty’s 2005 veto of the transportation bill, which contained a constitutional amendment proposal to dedicate 100 percent of the Minnesota Vehicle Sales Tax to transportation. Pawlenty’s veto negated the other provisions of that bill (including, most notably, an increase in the state’s gas tax). The titles in the gay marriage and photo ID bills, they claim, were struck down in the same fashion as the non-amendment provisions in the 2005 transportation bill.
“The veto of the ballot title was not overridden, and thus that portion of the bill containing ordinary legislation instructions to Executive Branch officers on how to exercise their exclusive and mandatory rights did not become law. The Secretary of State’s duty to select a title for the proposed constitutional amendment — chosen by him and approved by the Attorney General — is undisturbed,” according to the law professors’ amicus brief.
The amendment supporters, however, contend this view gives the executive branch unconstitutional power.
“There is no constitutional distinction between the title of a proposed constitutional amendment and the rest of the ballot description,” according to the petition in the photo ID case. The petitioners add:
“To now allow such a veto would vest in the governor the power in the constitutional amendment process that simply does not exist.”
Beyond disagreements about which powers are vested where, the amendment supporters view Ritchie’s title as casting their causes in a negative light. In the case of the gay marriage amendment title, the petitioners contend the term “limiting” carries negative connotations. Swanson’s brief, however, defends Ritchie’s wording.
“Should the amendment pass, it will have the effect of limiting — indeed precluding — any future Minnesota Legislature from expanding marriage beyond opposite sex couples,” according to the brief.
In the case of the photo ID title wording, the amendment supporters take exception to the mention of voter registration, among other things. Photo ID supporters have maintained throughout the campaign that the amendment is limited to whether voters should present a photo ID at the polls, and that any issues that arise as a result of photo ID will be addressed by the Legislature through enabling legislation.
In the words of the plaintiffs’ brief, “The Secretary’s statement that the Voter ID Amendment will change voter registration in Minnesota reveals his political motivation in substituting his title for the Legislature’s title[,] as it is an obvious effort to elicit negative emotions and encourage voters to reject the Voter ID Amendment with which he disagrees.”
