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Amending the amendment process

Minnesota’s test of civic duty sometimes comes with a bonus question. Eight times in the last two decades, citizens stepping into voting booths to pick their elected representatives have also been asked to cast a vote for or against a proposed constitutional amendment; often, a single ballot has featured more than one amendment proposed.

In 2016, Minnesotans will decide if a new council should set the salaries for state legislators, the 15th ballot question to appear since 1988. Some say that’s too many and that legislators are all too willing to raise taxes or change state policy by forever altering the state’s guiding document.

Interestingly enough, a change to the method used to amend the constitution would, itself, require the passage of an amendment. Two such proposals were heard in the House Government Operations and Elections Policy Committee on Tuesday, and legislators — including committee chair Rep. Tim Sanders, R-Blaine — seemed positively disposed toward the idea.

Finding evidence of legislators’ affinity for the amendment route did not require a long memory. Earlier Tuesday morning, another House committee considered a bill that would add protection of private digital data to the Minnesota Constitution. The bill, chief authored by Rep. Peggy Scott, R-Andover, passed on a voice vote, though the Senate companion has yet to be scheduled for a hearing.

If passed, the proposal would join the legislative compensation question on the 2016 ballot.

Of the 14 most recent amendments put before voters, 11 have passed into law. In 1994, voters rejected a question on legalizing off-track horse race gambling, and in 2012, Minnesotans voted down amendments that would have inscribed a voter ID law and a gay marriage ban into the constitution.

But if the law were changed to require a “supermajority,” as has been proposed, many of those ideas would never have made the ballot in the first place. Only five amendments received more than two-thirds support in both the House and Senate since 1988. Two others received more than 60 percent in both chambers, clearing the bar previously suggested by Senate Majority Leader Tom Bakk, who introduced a bill to that effect last session.

One bill introduced during Tuesday’s government hearing would provide for gubernatorial input on the process, which currently does not exist. The bill authored by Rep. Clark Johnson, DFL-North Mankato, would add a provision allowing a governor to veto a proposed amendment. In that scenario, the Legislature would need to override the veto with a two-thirds majority to get the amendment placed on the ballot.

The proposal from Johnson, now in his second term, is a new one, and committee members expressed hesitancy to cede new authority to a governor. Already, some observed, the governor can hold a ceremonial “veto,” as Gov. Mark Dayton did on the gay marriage ban and voter ID amendments, to make his views known to the public.

The other bill heard Tuesday was a repeat offering from Rep. Kim Norton, DFL-Rochester, who wants to require a two-thirds majority threshold regardless of the governor’s position. Norton told legislators that 26 other states require a supermajority of some kind to approve an amendment.

She also explained that the idea is hardly a new one in Minnesota: The two-thirds requirement was suggested as far back as 1948, when a constitutional commission recommended that level to the Legislature. Norton conceded that she is not an “elections expert,” but still felt changes to the constitution should be “bicameral and bipartisan.”

The bill was discussed briefly and laid over, but not before Sanders commented that it was a “very valid idea,” and one he hopes to revisit this session.

His counterpart on the Senate elections panel, Sen. Katie Sieben, DFL-Newport, declined to comment on the proposals, saying neither had been entered in the Senate yet this year. But Sen. Patricia Torres Ray, DFL-Minneapolis, chair of the Senate State and Local Government Committee, said she thinks there is probably bipartisan interest in a change to the amendment statute, though she was not sure of a “magic number” of 60 percent or 67 percent for the supermajority.

“I think there is support for incorporating language that makes it a little more difficult,” Torres Ray said. “Having a majority vote gives the opportunity for the party that controls either [chamber] to move an amendment with their vote. It becomes a really political vote.”

Later in the same hearing, the committee got a first look at a bill that would strengthen the language barring public officials from using their office on either side of a ballot question. The bill from Rep. Glenn Gruenhagen, R-Glencoe, does not have a name, but could rightly be christened the “Mark Ritchie law.” The former Secretary of State’s activity around the 2012 amendments that inspired Republican accusations of partisanship at the time, and inspired Gruenhagen to revisit the issue this year.

Legislative Auditor Jim Nobles presented the committee with his findings from that time period, when a pair of Republican senators accused Ritchie of using public resources to campaign against the voter ID amendment. Nobles looked into the matter, and ultimately determined that the current law lacked clarity, though he warned that lawmakers would need to be “very careful” in drafting a legislative fix to address the issue.

In one example of the complexity at hand, Nobles recalled the Human Rights Commissioner Kevin Lindsey had told him that he campaigned against both amendments as part of his official duties in that role, saying the proposals posed a threat to individual rights. Ritchie, meanwhile, told Nobles that he only used staff and public materials to inform Minnesotans the practical impact of passing either amendment.

Nobles made clear that he was not advocating in favor of Gruenhagen’s bill, which committee DFLers seemed to oppose — no vote was taken Tuesday — but wanted to encourage lawmakers to try to achieve clarity in the law.

“These questions arise,” Nobles said. “They have arisen, they will continue to arise, as to whether or not somebody has inappropriately used public resources.”

Torres Ray later expressed disinterest in Gruenhagen’s bill, which she said is “pretty confusing,” and unlikely to get adequate Senate support.

“This whole idea was borne out of political frustration on the part of Republican members [of the Legislature],” Torres Ray said. She added: “Many of us believe that we have an obligation to educate the public on these ballot questions. How that can be interpreted is up for interpretation, I guess.”

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