Who has power to name amendments? Supreme Court poised to settle dispute

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Solicitor General Alan Gilbert, who represented the attorney general and Secretary of State Mark Ritchie, argued that the executive branch has the authority to title constitutional amendments.

The Minnesota Supreme Court heard a round of “power” arguments on Tuesday over who has authority over two Republican-backed constitutional amendments set to appear on the November ballot.

The arguments — separate from a case the court heard in mid-July over the actual Voter ID ballot question — center on whether the legislative or executive branch controls the wording of constitutional amendment titles.

The court merged two separate lawsuits from legislators who claim that DFL Secretary of State Mark Ritchie used his political position to mischaracterize the titles of both amendments.

The attorney general’s office, on behalf of Ritchie, argued that a 1919 statute gives the executive branch (the secretary of state in conjunction with the attorney general) final authority over ballot question titles.

Attorneys for the legislators, however, contended that the separation of powers and other constitutional provisions grant the legislative branch sole influence over the form and substance of constitutional amendments.

MinnPost photo by James Nord Jordan Lorence, an attorney for GOP lawmakers, said the Republican-led Legislature should be able to name the two amendments.

Jordan Lorence, an attorney with the Alliance Defending Freedom who represented the Republican lawmakers, said the Legislature has the constitutional authority to propose ballot question titles or to choose to delegate that responsibility to the secretary of state. In this case, he said, the executive branch overstepped its bounds for political purposes.

“The question before the court is not the politics,” Lorence told reporters after the hearing. “The legal question is: ‘Who is the final authority?’ and we think it’s clearly the Legislature.”

But Solicitor General Alan Gilbert, representing Ritchie, said that Gov. Mark Dayton’s vetoes of the two constitutional amendments – as well as a state statute that says the secretary of state “shall provide an appropriate title for each question printed on the … ballot” – requires the executive branch to intervene in the ballot question title.

Gilbert also warned that if the courts stepped in to limit the executive branch’s authority over amendment titles, it could jeopardize 90 years of constitutional amendments that the citizens of Minnesota have passed.

“I don’t want to be an alarmist here,” Gilbert said. “It’s just a consequence of 90 years of doing it one way and then somebody coming in 90 years later and saying, ‘Well, the secretary didn’t have authority to do it.’ ”

The high court is expected to rule by late August in keeping with the timetable necessary for the secretary of state’s office to prepare ballots. Associate Justice Helen Meyer is sitting out the case in anticipation of her retirement, leaving six justices on the bench.

The typically inscrutable court didn’t offer many hints into how it might rule, though there were several interesting comments. Chief Justice Lorie Skjerven Gildea, for example, appeared to side with the Legislature.

“If [the title] has an impact on the voters, then I can’t understand why it’s not part of the Legislature’s exclusive authority … to propose amendments to the people,” she told Gilbert. “In other words, I think this is a deal between the legislative branch and the people of Minnesota and that’s it.”

She then beat back Gilbert’s protests that such a precedent would upset years of history.

“The fact that somebody has been behaving unconstitutionally for years … that doesn’t make it right,” Gildea added.

Associate Justice Paul Anderson, a lively questioner in both lawsuits, seemed to lean toward cutting the titles and simply placing the entire questions on the ballot.

“These are emotionally charged, politically motivated amendments, and I see an almost unsolvable problem because one side is going say it’s described this way, one side is described the other and I see problems with both descriptions,” Anderson said. “Do we have a power to say a pox on both houses?”

The Voter ID amendment would require in-person voters to show a photo ID before casting a ballot and also would implement a new provisional balloting system. The marriage amendment would define marriage as between one man and one woman in the Minnesota Constitution.

In early July, Ritchie announced that he had changed the Photo ID amendment’s title to: “Changes to in-person & absentee voting & voter registration; provisional ballots.” The Legislature’s original title, passed in April, is “Photo identification required for voting.”

Earlier, Ritchie renamed the marriage amendment to read: “Limiting the status of marriage to opposite sex couples.” Its original 2011 title is “Recognition of marriage solely between one man and one woman.”

Ritchie, who has remained largely silent about the lawsuits, released a statement after the hearing.

“I appreciate the Minnesota Supreme Court’s effort to address this separation of powers issue and look forward to their decision and specific instructions,” he said. “As the attorney general’s counsel explained before the court, providing a title for each proposed Constitutional Amendment has been the responsibility of the Minnesota Secretary of State since 1919. Under state statutes no other agency or branch of state government currently has this authority.”

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Comments (16)

  1. Submitted by Thomas Swift on 07/31/2012 - 03:49 pm.

    Asked, but not answered.

    Forget, for a moment, the offensive lengths Ritchie took it to. If the SoS has had the authority, nay, the responsibility, to provide titles for ballot questions since 1919, how many times has an SoS followed through by changing the title under which the question passed the legislature?

    I’ve asked this question several times, but no one seems to know, or want to talk about it.

    • Submitted by Bill Coleman on 07/31/2012 - 04:26 pm.

      Tradition

      According to Myron Orfield, the SOS has titled the last 100 amendments going back to 1919, just as the law states is their duty.
      http://www.startribune.com/opinion/commentaries/163781496.html

      I am sure that you do not like this source Mr. Swift, but it seems that if there were other instances where the legislature had created the titles and they appeared on the ballot, we would have heard about them today.

      • Submitted by Thomas Swift on 07/31/2012 - 05:57 pm.

        Actually Bill,

        I’ll take Myron at his word. It tells me that Mark Ritchie is the 1st SoS to have had the audacity to let his politics override his duty.

        The alternative is to believe that every legislature to pass an amendment question since 1919 was willing to allow their current SoS to do so.

    • Submitted by Pete Barrett on 07/31/2012 - 05:00 pm.

      Here’s The Straight Dope

      It’s my understanding that it is a recent practice (late ’70’s?) for the Legislature to name constitutional amendment.

      So I’d think that if a bunch of politicians are always harping about “original intent” when talking about a constitution they’d ditch the recent innovation and go back the way it’s always been.

  2. Submitted by Walt Cygan on 07/31/2012 - 04:09 pm.

    Answered

    According to Pete Barrett’s reply to your question here: (http://www.minnpost.com/politics-policy/2012/07/minnesota-amendment-wording-can-affect-votes-experts-say) legislatures have previously not given titles and have left it to the Secretary of State to do so.

  3. Submitted by Walt Cygan on 07/31/2012 - 04:32 pm.

    Also

    See: http://www.leg.state.mn.us/lrl/mngov/constitutionalamendments.aspx

    Until the 2008 amendment, titles were generally not provided. The question submitted to voters is provided but only the three most recently passed have titles, based on my spot-checking. I didn’t check them all, but I looked at 8-10 going back to 1959.

  4. Submitted by Maria Moeller on 07/31/2012 - 07:09 pm.

    Government-Issued Photo ID

    With all the debate over the language of the title AND the amendment, I would encourage the voter ID reporting to include this critical phrase when describing the amendment… rather than perpetuating the misunderstanding of what will be required.

    • Submitted by Tom Christensen on 08/01/2012 - 08:09 am.

      The title should read

      “Don’t vote for this amendment” as it is only a republican solution looking for a problem. Voter ID has not been proven in Minnesota. After two recent recount elections and a bipartisan group monitoring the recount, looking for voter fraud, both sides said there was none. It is another nation wide republican folly. The constitution should not be amended to just serve the republicans. The constitution is intended to serve all Minnesotan’s. .

  5. Submitted by Ray Schoch on 07/31/2012 - 09:22 pm.

    Ballot titles

    For a change, Mr. Swift has raised a relevant question, and while I’ll certainly vote against both proposed amendments, my own take is that the legislative titles seem more clear and to-the-point than the ones provided by Mr. Ritchie.

    That said, however, the responses from Messrs. Coleman, Barrett and Cygan appear to make the point about which title is more accurate – perhaps the whole Supreme Court argument – moot at best, and at worst, simply one more in a long line of Republican straw men. If, in fact, amendments didn’t even HAVE titles until recently, and if, when those titles began to be assigned, they were routinely drawn up by the Secretary’s office, then this dispute is simply more egomaniacal Republican whining. More evidence that the Republican goal is not effective governance, but arbitrary rule.

    • Submitted by Neal Krasnoff on 08/01/2012 - 06:37 am.

      What?

      “More evidence that the Republican goal is not effective governance, but arbitrary rule.”

      What?

      • Submitted by Bill Schletzer on 08/01/2012 - 08:48 am.

        this is part of a nation-wide Republican effort…

        to cripple the Democrats, to sieze control, to undermine democracy.

  6. Submitted by Paul Udstrand on 08/01/2012 - 09:05 am.

    Not much of a debate actually

    The court will rule in favor of Ritchie and the Executive, the law is clear on this, the only people who don’t get it are the Republicans.

    I just have to point out again that a lot of people spent a lot of time trying to explain how constitutional amendments work to Republicans, and they just wouldn’t listen. A lot of people tried to explain that this is NOT just legislation by other means, and instead of listening Republicans just wanted to argue about it. So will they sue the State Supreme Court when they don’t get their way? Stay tuned.

  7. Submitted by Michael Rothman on 08/01/2012 - 10:43 am.

    Voter suppression

    Big picture: ALEC/Koch brothers are trying to suppress Democratic voters. Look at Pa. Their politicians admit that ‘voter id” will allow Romney to win the state.

  8. Submitted by Steve Hoffman on 08/01/2012 - 02:37 pm.

    Amendment titles

    The two questions that haunt me on this issue, and that I haven’t seen addressed, are:
    (1) If the legislature wants to pass a huge tax increase but titles the initiative “Free Candy For Everyone” is there no recourse? and (2) doesn’t “defining marriage as between one man and one woman” effectively prohibit remarriage under any circumstances?

  9. Submitted by Paul Udstrand on 08/06/2012 - 09:57 am.

    Steve,

    If a tax increase is part of normal legislation, the authors write the title, and they frequently write titles that obscure the true nature of the legislation. A constitutional amendment however is NOT normal legislation so other rules apply. I don’t see how a marriage defined a between one man and one woman prohibits marriage. My wife and I are married to each other and no one else, how would that be prohibited?

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