Minnesota Lawyer
Secretary of State Mark Ritchie relied on a state law, a version of which was originally enacted in 1919, stating that the secretary of state shall “provide an appropriate title” for ballot questions. (Staff photo: Peter Bartz-Gallagher)
Justices say Secretary of State Mark Ritchie overstepped his authority by providing new titles for November ballot questions
Republicans won an unequivocal victory on Monday in a pair of Minnesota Supreme Court rulings on issues related to constitutional amendments on the November ballot.
The state’s top court rejected arguments that the ballot language for the proposed amendment requiring voters to show photo identification at the polls is vague and misleading. The Supreme Court also rebuked Secretary of State Mark Ritchie, who had changed the titles attached to the ballot questions by legislators, for overstepping his constitutional authority.
The rulings — each decided by a 4-2 split — came on the last day that Ritchie’s office said it could wait before starting to prepare ballots ahead of the absentee voting period and Election Day. The photo ID ruling means that — barring an extraordinary development — there will be two proposed constitutional amendments on the ballot in November. Most legal observers fully expected the court to defer to the Legislature on the wording of the ballot question. To strike it from the ballot would have been, as the four justices in the majority noted, an “unprecedented” act.
“We acknowledge that the ballot question, as framed by the Legislature, does not use the same words used in the amendment itself nor does it list all of the potential effects of implementation of the identification system contemplated in the proposed amendment,” the unsigned ruling stated. “These failures may be criticized, and it may indeed have been wiser for the Legislature to include the entire amendment on the ballot. The proper role for the judiciary, however, is not to second-guess the wisdom of policy decisions that the constitution commits to one of the political branches.”
The question of whether the Legislature or the secretary of state had the ultimate authority to provide titles for the ballot questions was more legally vexing. Both sides seemingly had strong legal arguments to muster. Ritchie relied on a state law, a version of which was originally enacted in 1919, stating that the secretary of state shall “provide an appropriate title” for ballot questions. But Republicans and their allies referred to the constitutional authority to propose amendments to the constitution granted to the Legislature. In addition, they pointed out that in the only previous instance where the Legislature provided a title for a ballot referendum — the 2008 proposal to increase the state sales tax to support environmental and arts program — Ritchie went with their preferred language.
Ultimately the majority of the justices decided, in crudest terms, that constitutional authority trumps state law. “There is no dispute in this case that the constitution does not specifically provide a role for the Executive Branch in the amendment process,” the unsigned opinion stated. “Allowing the Secretary of State, an Executive Branch Office with no constitutional authority over the form and manner of proposed constitutional amendments, to simply ignore the Legislature’s action in proposing and passing a title to accompany a ballot question on a constitutional amendment potentially risks interfering with the Legislature’s constitutional authority.”
Ritchie faces criticism
At the end of the 2011 legislative session, the Legislature passed a gay marriage amendment bill with this title: “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 switched the title to: “Changes to In-Person & Absentee Voting & Voter Registration; Provisional Ballots.”
Ritchie’s decision to change the ballot titles had already turned him into a political pinata for Republicans, who argue that his actions are driven by opposition to the two proposed amendments. The ruling will almost certainly embolden GOP partisans to ratchet up the criticism.
Sen. Scott Newman, R-Hutchinson, the chief sponsor of the photo ID legislation, points out that Ritchie’s job is to impartially implement election laws passed by the Legislature. “Secretary of State Ritchie has been doing just the opposite,” Newman said. “In his actions and words he is trying to influence the outcome of a ballot question. I don’t think that’s his job.”
Whether the wording of the title will actually make any difference in the outcome of the ballot questions is impossible to project with any certainty. But Sen. Warren Limmer, R-Maple Grove, the chief sponsor of the proposed marriage amendment, believes that it will make a difference. “It sets the tone,” Limmer said, of the titles, at a press conference on Monday. “It’s the very last influence that a voter will have before they consider the question. We tried to be as neutral as we could.”
There is some empirical evidence to back that up. In a 2010 study conducted by political scientists Craig Burnett, of Appalachian State University, and Vladimir Kogan, of University of California, San Diego, they found discernible differences in outcomes depending on the language utilized. On the gay marriage issue, for instance, there was an 8.5 percentage point decrease in support for a ban if the question was framed as “eliminating” the right to marry, as opposed to “limiting” the right to marry. But the researchers also determined that providing additional context, such as would typically occur during a campaign, significantly reduced the number of people who changed their minds depending on the verbiage. “As voters are exposed to new information, whether campaign media or direct appeals and conversations with their friends, the important of the official title and summaries diminishes,” Burnett and Kogan wrote in a paper detailing the study.
Christopher Elmendorf, a law professor at the University of California, Davis, argues that even a small change in voter behavior based on ballot language is still significant. “It’s widely believed, and there’s a decent amount of evidence to support, the view that labels do matter and they have the potential to shift the outcome by maybe a couple of percentage points, which in a close election could make all the difference,“ Elmendorf said.
More court challenges likely ahead
There is a possibility that further legal skirmishes related to ballot questions could be on the horizon. The justices did not rule on whether the entire amendment should be properly placed on the ballot, as argued by plaintiffs in the photo ID case. William Pentolovich, the attorney who argued the case on behalf of the League of Women Voters and other advocacy groups, says that’s possibly grounds for further legal action.
“I really don’t know if any of my clients would have an appetite to do another piece of litigation between now and the election, but any citizen of Minnesota could,” Pentolovich said. “With this case there’s nowhere else to go. There’s no further right of appeal.”
But even if this is the end of the legal wrangling prior to Election Day, the photo ID amendment is almost certain to be back in the courts if it is adopted. In other states there have been prolonged legal challenges in both the state and federal courts. In Wisconsin, for example, two judges struck down a photo ID requirement earlier this year because it was deemed to violate the state’s constitution. The Wisconsin Supreme Court is expected to eventually weigh in on the matter.
Elmendorf says that Minnesota’s photo ID requirement, if adopted by voters, will almost certainly be challenged in state court and possibly under the Federal Voting Rights Act. “I think there are a number of open questions,” Elmendorf said. “There’s at least a couple of other layers of legal challenges that might be brought.”
