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Amendments likely to face more political and legal hurdles even if they pass

Larry Jacobs
Larry Jacobs

Although the voting and marriage constitutional amendments cleared their final legal hurdle before Election Day, both likely will face political and legal battles even if they are approved by voters.

MinnPost spoke with advocates and opponents of the two amendments, as well as lawmakers and political observers, following Monday’s Supreme Court rulings. The rulings rejected attempts to drop or modify the voter amendment ballot question and affirmed the Legislature’s authority to name the amendments.

Opponents of the amendments said the rulings did little to change their campaign strategies in the final months before the Nov. 6 election, while those supporting the amendments praised the court and its outcomes for making their jobs easier.

Larry Jacobs, a policy expert at the University of Minnesota, said the rulings “create a glide path toward the passage of both constitutional amendments.”

“It makes it much harder for the opponents of the amendments. They’re now fighting uphill with time running out,” Jacobs said. “I’d be surprised if both amendments don’t pass after the Supreme Court rulings.”

But David Schultz, an elections expert from Hamline University, said he still thinks the marriage amendment is too close to call.

Schultz also added that “significant post-election litigation” both at the state and federal levels, as well as routine politics, could prevent either amendment from ever taking effect.

Cases related to other state gay marriage amendments, such as Prop-8 in California, could alter federal law, and “the fate of those cases may very well have a big impact on that amendment” in Minnesota, Schultz said.

He also argued that the voting amendment requires enabling legislation to take effect, so if agreement can’t be reached between DFL Gov. Mark Dayton and whichever party controls the state Legislature next session, it might sit in limbo.

David SchultzDavid Schultz

“For that reason alone,” Schultz said, “I could see that amendment going nowhere because there’s no enabling legislation to move it.”

Rep. Mary Kiffmeyer, who sponsored the voting amendment in the state House, said she thinks it will be a tough process to pass the enabling legislation, but said it was elected officials’ constitutional duty to do so.

“Be fair for the people in that regard and be true to your oath of office,” she said.

Amendment supporters, meanwhile, were pleased with Monday’s rulings.

“It’s a significant win for the court, for the rule of law, for those proponents of the Voter ID amendment, because we now have a clear title and the ballot question will be on the ballot,” said Erick Kaardal, counsel for the GOP lawmakers who sued to affirm the Legislature’s authority over ballot question titles.

Kaardal appeared with Dan McGrath, executive director of the pro-voting amendment group Minnesota Majority, at a press conference across the hall from Secretary of State Mark Ritchie’s office on Monday.

Ritchie earlier this summer used what he considered his statutory authority to rename the two amendments, but the court struck down his actions.

In early July, Ritchie announced that he had changed the voting 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.”

McGrath, who is also running the pro-voting amendment campaign ProtectMyVote.Com, said keeping the Legislature’s original title makes it much easier for him to accurately get out his message on the amendment.

In the past, McGrath expressed concern that Ritchie’s title could cause voters to misunderstand that the ballot question before them dealt with the typically popular Photo ID issue. In Minnesota, if a voter neglects to vote on a ballot question, it counts as a “no” vote.

“It really is a big relief,” he said. “Now we can get on and not worry about how on earth we’re going to message that title — how do we get people to understand that title equals Voter ID when identification doesn’t even appear in the secretary’s title?”

McGrath said the naming lawsuit prompted his organization to consider an entirely new marketing campaign — including giant lawn signs using Ritchie’s proposed title — that it could now abandon because of the court ruling.

“We would have had to significantly increase our budget in order to educate people on the meaning of that title,” he said, noting that the group has dropped its fundraising hopes from $3.2 million to roughly $1.6 million because of all the competition for political contributions.

But the ballot question lawsuit, brought by voting amendment opponents and separate from the naming litigation, didn’t cause to change its strategy.

That lawsuit called the voting amendment ballot question misleading and asked the court to remove it or substitute the question with the full amendment’s language.

“We never stopped [campaigning],” McGrath said. “We presumed the court would not actually take the extreme step of throwing it completely off the ballot. We didn’t know if they’d meddle with the title or the question, but we were pretty confident … that it was still going to be on the ballot, so we continued to press forward.”

McGrath’s confidence matches that of Luchelle Stevens, who is running an anti-voting amendment campaign of about 100 coalition groups called Our Vote Our Future.

“It’s not going to change anything in any way at all,” Stevens said of her group’s campaign efforts in an interview after the rulings came out. “We’re confident that once voters see what this amendment is and see what’s behind it, they will vote no.”

Anecdotally, anti-voting amendment groups have seen support for the measure, popularly called Photo ID, drop once all of the potential consequences related to it are explained.

Likewise, Kate Brickman, a spokeswoman for Minnesotans United for All Families, which opposes the marriage amendment, said in an email that the rulings would have little effect on its campaign.

 “Honestly the lawsuit didn’t change anything for us — neither when the lawsuit was filed, nor with the decision today,” Brickman wrote. “The question has been the same all along, and that’s what we’ve been focused on, having conversations with voters about the question at hand.”

Comments (24)

  1. Submitted by Thomas Swift on 08/28/2012 - 10:03 am.

    The specter of Ritchie’s judicial rebuke could haunt radical leftists for some time to come. One can only guess what is being discussed at Soros HQ this morning, but I think it’s fair to say it’s not PG13 dialogue.

    The marriage amendment will pass with a very comfortable margin, although probably less overwhelmingly than the voter ID. Dayton would be well advised to think twice before he again stands against the people of Minnesota.

    Everyone expects both pro-fraud and sand is food activists to use whatever legal means they have left to them, but the end game is well known…the people will not be denied.

    • Submitted by Diane Nelson on 08/28/2012 - 03:14 pm.

      I’m saving this one

      These are edible words that could taste very bitter come November.

    • Submitted by Logan Foreman on 08/28/2012 - 09:42 pm.

      As usual

      A laughable fictional analysis. There is no pro-fraud when there is no fraud to begin with. No one would accept your word for it as proof of fraud.

  2. Submitted by Bill Gleason on 08/28/2012 - 10:59 am.

    “pro-fraud and sand is food activists”

    is a rather pathetic way to describe people who differ from you about these issues, Mr. Swift.

    Certainly the main point of this article is correct – that even if both amendments are passed the battle over the principles involved is far from over.

    Action in Califonia, Connecticut, and Massachusetts will wend its way to the Supreme Court fairly soon. The Defense of Marriage Act will be declared unconstitutional.

    And attempts to restrict the voting rights of the young and the old, minorities and the poor, will also fail. Either because America is fair minded, or, eventually, because of demographics.

    Hasta la vista.

    • Submitted by Thomas Swift on 08/28/2012 - 11:08 am.

      We hope so!

      “Action in Califonia [sic], Connecticut, and Massachusetts will wend its way to the Supreme Court fairly soon.”

      Not a moment too soon for many of us, Bill. Tomorrow would be good!

      You might not be aware that the Supreme court has already weighed and measured the Voter ID issue, and found it wonderful! I know you appreciate links to aid in your education of issues, so with my compliments:

      “Supreme Court upholds voter ID law”

      Adios por ahora

      • Submitted by Bill Gleason on 08/28/2012 - 01:09 pm.

        As always, the devil is in the details…

        For of course “VoterID” is not just simply VoterID, at least the law we will be voting on in November. As you are aware the abolition of same day registration and the uncertainties involved in enabling legislation make it far from clear about what will be happening.

        My reference to the Supreme Court had more to do with the eventual clarification of our marriage laws at the Federal Level. For your information:

        Federal appeals court in Boston rules Defense of Marriage Act unconstitutional

        As MA Attorney General Matha Coakley put it:

        “Today’s landmark ruling makes clear once again that DOMA is a discriminatory law for which there is no justification. It is unconstitutional for the federal government to create a system of first- and second-class marriages, and it does harm to families in Massachusetts every day,” she said.

        Appeals Court Judge Michael Boudin wrote the unanimous decision for a three-judge panel.

        “Invalidating a federal statute is an unwelcome responsibility for federal judges; the elected Congress speaks for the entire nation, its judgment and good faith being entitled to utmost respect,’’ he wrote. “But a lower federal court such as ours must follow its best understanding of governing precedent, knowing that in large matters the Supreme Court will correct misreadings.”

        Boudin noted that if DOMA is left intact, then same-sex couples legally married in Massachusetts are being denied federal benefits routinely provided to heterosexual couples. That, he said, cannot withstand legal scrutiny.


        Would that the Supreme Court could deal with this tomorrow as you wish, Mr. Swift.

  3. Submitted by Dennis Tester on 08/28/2012 - 11:47 am.

    I’m continually amazed

    at how the people who affiliate with the party named for democracy have the least respect for that idea.

    • Submitted by Tim Walker on 08/28/2012 - 03:40 pm.

      Dennis, standing up to those who would deny citizens the constitutional right to participate in democracy IS pretty damn important to Democrats. So you can stop being amazed now.

    • Submitted by Virginia Martin on 08/28/2012 - 04:51 pm.


      Minnesotans who believe that voter ID laws are good and they are no big deal do not understand that rights are protected by the Constitution and that even a majority of voters cannot take away that right. We do not vote on things like voters over 80 cannot vote, or blacks cannot vote unless they pay a poll tax and pass a history lesson or something, or in some other way do not meet the standards of the people who would restrict voter rights.
      In this country we have over the years extended voting rights to blacks, to women, to Native Americans, and every other citizen, and we cannot start hacking away at those rights now. If it does pass, and it probably will, it needs to be tied up in legal and other disputes to keep it from taking effect.
      Real democracy is giving all citizens who meet all standards of the state the right to vote without any infringement.
      That is a democracy, not one that some citizens want to see curtailed.

    • Submitted by Don Medal on 08/30/2012 - 02:32 pm.

      So this is a partisan vs. a fraud issue?

      If it is Democrats who are the problem this law is aimed at, then it is a political trick intended to suppress minority turnout.

      I’ve seen no testimony anywhere that shows there is fraud that this law seeks to solve.
      Indeed there is already plenty of law in place on that issue, the “problem” is finding violators. (next to none).

      Mr Tester seeks to politicize this issue but at the expense of revealing his true reason for supporting it.

      It is a law nominally intended to fix a crime that doesn’t happen.

  4. Submitted by Tom White on 08/28/2012 - 01:41 pm.

    Voter ID

    I can’t wait to hear the howling when the State majority Democratic Senate and House get to implement the voter id with their proposal that was cheaper and more effective than what the Republicans are proposing.

  5. Submitted by Eric Larson on 08/28/2012 - 05:19 pm.

    2014 Ballot

    I’ve watched a trend on the left of center political pages such as MinnPost. With out the Gov. Dayton ever contradicting, MinnPost and other journalist have implicitly hinted that Gov Dayton has been looking forward to the 2012 elections with glee. As if it’s off the record, but understood, that the Repubs will get clobbered in Nov 2012. What happens if the Repubs maintain their majorities and Mark Dayton choses to veto any Voter ID Enabling Legislation? He will be on the ballot and on the record as opposed to legislation that has the large support of his own party. Will he sell out? Or will he go down fighting?

    • Submitted by scott gibson on 08/28/2012 - 08:47 pm.

      The Governor indicated his reasons

      for being against the marriage amendment in a commentary at the state fair. His opposition to the voter ID amendment is also on record. I don’t think he is worried, either way, about what it means to any re-election bid. He is in his last public job. He is his own man, not really beholding to any party. To think his moves are politically motivated by party concerns is not borne out by his recent past. He will follow his principles, not the Democratic party’s principles.

  6. Submitted by Joel Fischer on 08/28/2012 - 05:25 pm.

    “Vote Yes Here”

    What is to stop the Legislature from giving such a title to an amendment? I don’t understand how the Supremes could get this one wrong.

  7. Submitted by Tom Anderson on 08/28/2012 - 10:02 pm.

    Prediction: Photo ID yes, marriage amendment no

    While not a political scientist at a nearby college, these two amendments are pretty easy to call.. Too many non-votes will kill the marriage amendment.

    Both State houses switching to Democrat, also not happening. Personally I will be much happier with a bipartisan photo ID law so that both sides have their concerns met and we get integrity and no disenfrancised voters.

    Questions: How much lower than a 9% turnout (this last primary election) would voter ID have caused? Where were all those people who were worried about not being able to vote next year? Why isn’t the Secretary of State’s office being blasted for this absolutely unacceptable turnout?

    • Submitted by Bill Gleason on 08/29/2012 - 06:59 am.

      I hope you are not right in your political prognostications, Tom

      but I really have no strong evidence that you are wrong.

      You ask a very good question about voter turnout. My theory is that people are pretty disgusted with politics and that this is the reason for the low turnout. Also the timing is awful – it is vacation season. In many voting districts very little is accomplished in the primaries as the slates on both sides are set.

      There are of course exceptions but even in contested districts turnout was still low.

      What this means for the general election is anyone’s guess. A strong ticket at the top may help the Dems. Romney’s decision to essentially cede the race to Obama is telling. Amy Klobuchar has a margin that may stay in the twenties. The coattail effect may be overwhelming.

      On the other hand some GOP partisans may have other thoughts that would be interesting to hear. There are, of course, also the constitutional amendments to consider.

      • Submitted by Tom Anderson on 08/29/2012 - 10:19 pm.

        The general election will be better

        As a state we’ll probably be back at the 65% of eligible voters mark, President Obama 55-57%, Amy nearly 70%, but the legislative races probably change only about 20 seats total.

        The odd thing I find about the call for earlier primaries (late June) is that it would still be vacation season so I see no benefit there. And given the low primary turnout, does anyone really think that voters want a LONGER election season?

        I agree about voters probably being disgusted with politics, it seems that even the people commenting here are disgusted in one way or another.

  8. Submitted by Thomas Swift on 08/29/2012 - 08:37 am.

    The effect is indeed overwhelming.

    “I really have no strong evidence that you are wrong.” That clearly has never slowed you down, Bill….

    “Romney’s decision to essentially cede the race to Obama is telling.”

    Please, I beg, do continue this fascinating insight into detail.

  9. Submitted by Tim Milner on 08/29/2012 - 03:27 pm.

    To Tim’s comment

    “standing up to those who would deny citizens the constitutional right to participate in democracy IS pretty damn important to Democrats”

    I am so sick and tired statements like this. No one is denying anyone anything. What is being asked is that something that is a basic part of American society – showing an ID. Like

    – if you go to a bank to cash a check
    – if you board an airplane
    – if you open a credit card at a store
    – if you register for school
    – if you go to a health club

    There are literal hundreds of times each year that I am asked to show an ID for these, and other, very basic daily activities. It does not infringe on my rights one bit – in fact – I am pleased in this day of ID theft – people ask.

    When my mom was to old to drive, I had to get her a MN ID card. It took a grand total of 5 minutes to get the ID card. I could get it at tons of places.

    Voting is not only a right, it is a privilege. And that privilege comes with a little responsibility too. If you are not willing to take the 5 minutes prior to the election to get an ID card, I seriously question just how important voting is to you.

    • Submitted by Dave Eischens on 08/29/2012 - 05:33 pm.

      The obvious difference is that voting is a constitutional right.

      Unlike the other examples listed.

      For many people like yourself, it would not be much of a hardship to get an ID card. For others it can be really difficult. That’s called disenfranchisement.

    • Submitted by Joel Fischer on 08/29/2012 - 10:30 pm.

      and this ID…

      does it prove that you are eligible to vote?

      • Submitted by Diane Nelson on 08/30/2012 - 04:31 pm.

        I hear crickets Joel

        I don’t there’s an answer forthcoming.

        And there’s your answer – even THEY realize they can’t claim a photo ID will prove anything except that the card appears to represent to the person holding it.

  10. Submitted by Dale Hoogeveen on 08/31/2012 - 07:18 pm.

    The US constitutional standard is by “oath or affirmation” which is exactly what one does when one registers at the polling place or signs the roll book of those already registered. Time for a little original Constitutional intent here; rather than some bogus non-issue that will take a whole lot of millions of dollars needed elsewhere to impliment. Talk about a waste of money!

    Democrats are often label tax and spend, but it looks to me like the Republicans are just spend and spend and spend and spend.

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