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Supreme Court affirms legislative control of constitutional amendment process

The Minnesota Supreme Court on Monday rejected requests to take the voting amendment off the November ballot [PDF], and, in a separate move, affirmed the authority of the Legislature, not Secretary of State Mark Ritchie, to provide ballot titles for constitutional amendments [PDF].

 The 4-2 votes clear the way for elections officials to send ballots to be printed in time for Election Day, Nov. 6.

Ruling in the majority were Chief Justice Lorie Skjerven Gildea and Justices G. Barry Anderson Justice, Christopher J. Dietzen and David R. Stras.

Dissenting were Paul H. Anderson and Justice Alan C. Page.

The first of the two lawsuits concerned the wording of the voting ballot question, which required voters to provide a photo ID and changed voting procedures for absentee ballots and same-day registration.

The suit — brought by the American Civil Liberties Union of Minnesota, the League of Women Voters, Jewish Community Action, Common Cause Minnesota and several individual plaintiffs — charged that the language the GOP-controlled Legislature voted to place on the ballot was vague and misleading.

Nor did the language to appear on the ballot make reference to a new provisional voting system that will be created if the amendment passes, something critics cited as a major omission.

The amendment can be put before voters, the justices ruled in that first case, because the discrepancies between the question and the actual amendment don’t rise to be “a palpable evasion of the constitutional requirement to submit the law to a popular vote,” according to the majority opinion.

“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. These failures may be criticized, and it may indeed have been wiser for the Legislature to include the entire amendment on the ballot,” the opinion says.

“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 other suit, filed by Republican lawmakers on behalf of the Legislature, asked the court to reject the titles that Secretary of State Mark Ritchie had planned to put on the ballot regarding that amendment and the proposal to constitutionally ban same-sex marriage.

Ritchie does not have the clear authority to decide the titles of ballot questions, the court ruled. The legislators who brought the naming suit — among them former Secretary of State Rep. Mary Kiffmeyer, R-Big Lake — had argued that Ritchie usurped their authority.

“We conclude that when the Legislature has included a title for a ballot question in the bill proposing a constitutional amendment, the ‘appropriate title’ the Secretary of State must provide for that ballot question is the title designated by the Legislature,” the opinion says. “As a result, the Secretary of State exceeded his authority.”

Page, in his dissent to the League of Women Voters lawsuit, referred to the voting amendment simply as a “bait and switch.”

“I would conclude that the ballot question [on the voting amendment] proposed by the Legislature is materially and fundamentally deceptive and misleading, constitutes a bait and switch, and even applying the inappropriately deferential standard of review adopted by the court, is “so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit the [amendment] to a popular vote,” he added. “I would therefore strike the ballot question from the ballot.”

Meanwhile, Justice Paul Anderson, who also dissented in the naming lawsuit, wrote that the Legislature ignored laws passed by earlier legislators.

“If the current Legislature disagrees with the policy choice of their predecessors, they are given a very clear way forward — follow Article IV, section 23 of the Constitution by passing a new law through both houses and then presenting it to the Governor for his signature,” he wrote.

Anderson added that Ritchie, by naming the two ballot questions, was simply doing the duty the Legislature empowered him to do.

“While it is possible to quibble about the language used by the Secretary of State in his titles,” Anderson wrote, “neither the majority nor I conclude that his titles are not ‘appropriate.’ ”  

Ritchie, the defendant in both cases as the state’s top election official, was supported by a number of legal scholars and advocacy groups filing “friend of the court” briefs [PDF] in arguing that Minnesota statutes clearly direct the secretary to write titles, which must then be approved by the state attorney general.

After the rulings, Ritchie said in a statement: “I urge all voters to become familiar with the candidates on the November ballot and on the two constitutional amendments.  The actual language proposed to be added to Minnesota’s Constitution will not appear on the ballot according to this court decision but can be found on the Office of the Secretary of State website.”

House Speaker Kurt Zellers praised the rulings and criticized Ritchie: “Secretary Ritchie’s attempt to rewrite the law to affect the outcome of a vote has been rightly stopped. He is supposed to be an impartial administrator of our elections. The restraint imposed on him by the court shows that he cannot put his own partisan feelings aside and fulfill his role objectively.”

Lawmakers wanted the title of the first proposed amendment to read, “Recognition of marriage solely between one man and one woman.” In June, Ritchie announced he was changing it to “Limiting the status of marriage to opposite sex couples.”

A week later, Ritchie changed the Voter ID amendment’s title from “Photo identification required for voting” to “Changes to in-person & absentee voting & voter registration; provisional ballots.”

Legally, the fight over the proposed marriage ban was the simpler of the two controversies because lawmakers voted to place the relatively short text of the amendment directly on the ballot, leaving Ritchie’s retitling the only issue.

Supporters of the vote-no campaign had argued that the title originally proposed by GOP lawmakers was manipulative and could confuse voters who do not know that same-sex marriage is already illegal in Minnesota. Amendment proponents countered that DFLer Ritchie’s title betrayed partisan leanings.

Similar efforts to amend state constitutions throughout the country in recent years have been led by Republican lawmakers who cite rampant voter fraud. Democrats have argued that the supposed fraud is virtually nonexistent and the amendments are aimed at making it more difficult for minorities and immigrants–likely Democrats–to vote.

Arguments over the voting amendment, by contrast, were significantly more complicated. Without the word “photo” or “ID” in the title, voters are less likely to recognize the ballot question and thus less likely to vote yes. Under Minnesota law, every ballot cast that does not have a vote for or against a proposition is counted as a vote against the amendment.

The proposed amendment would require in-person voters to show a photo ID before casting a ballot and also would implement a new provisional balloting system. Opponents have argued that the vague wording leaves major questions unanswered.

In their arguments here, both sides referred to a 2006 case in which the state Supreme Court was asked to decide whether the description of a proposed amendment fell within the scope of the law. In that case, Breza vs. Kiffmeyer, brought by opponents of a Transportation Amendment which was ultimately voted into the constitution, the court held that the amendment, while poorly worded, was constitutional because its “clear and essential purpose” was “fairly expressed in the question submitted.”

Comments (14)

  1. Submitted by Joe Musich on 08/27/2012 - 04:12 pm.

    Can anybody…

    Rise above the political theater ?

  2. Submitted by Hiram Foster on 08/27/2012 - 04:12 pm.


    I would have gone the other way.The statute is pretty clear that the Secretary of State decides the title. And there is no statute I know of to the contrary. The resolution passed by the legislature isn’t a law.

  3. Submitted by Beth-Ann Bloom on 08/27/2012 - 04:32 pm.

    Vote NO in NOvember

    Be Minnesota Nice and Do It Twice!

  4. Submitted by Ray Schoch on 08/27/2012 - 04:38 pm.

    Win some, lose some

    I’m inclined to agree with Hiram Foster. The statute seems clear to me, I don’t know of a contradictory statute, and it seems equally clear that a legislative “resolution” isn’t a a statute. But I’m not on the state’s Supreme Court, and the Court’s decision has been rendered, so opponents of the proposed amendments will have to live with the legislative titles, like it or not.

    Since I’m in agreement with Justice Page, I think the ballot questions themselves are dishonest, and fairly typical of recent Republican legislative double-speak. That leaves proponents with the advantage. It’ll be up to the opponents to mount an informational campaign – against what is sure to be well-funded propaganda in favor of the proposals – that shows voters what the consequences, intended and unintended, are likely to be if the amendments are adopted.

    If that fails, then opponents will need to find allies with very deep pockets to take the issue to the federal courts, since on its face the proposal against gay marriage violates the “equal treatment” clause of the 14th Amendment, and I think the Attorney General of the United States is correct in labeling Voter ID as a “poll tax.” Legal battles cost a lot of money, but the federal courts are about all that stand between most citizens and the American Taliban, whose interest in “freedom” stops when the exercise thereof challenges their comfortable assumptions.

    • Submitted by David Johnson on 08/28/2012 - 10:56 am.

      Voter ID is not a Poll Tax. . .

      . . .and Ray’s belief that it is doesn’t change the facts. Taking that to Federal Courts will be fruitless as SCOTUS has already ruled on the issue in 2008:

      “In a 6-to-3 ruling in one of the most awaited election-law cases in years, the court rejected arguments that Indiana’s law imposes unjustified burdens on people who are old, poor or members of minority groups and less likely to have driver’s licenses or other acceptable forms of identification. Because Indiana’s law is considered the strictest in the country, similar laws in the other 20 or so states that have photo-identification rules would appear to have a good chance of surviving scrutiny.”

      The arguments that it’s a poll tax, a vote supression tool or a way to help the GOP were are rejected by the Court. And JP Stevens wrote the majority opinion. So Ray’s opinion, and that of the corrupt USAG are moot.

      One main reason for its rejection was the complete lack of ability by the opposition to find one single voter who would be disenfranchised. Voter ID laws have been on the books in various states for over 20 years. Where is the mass suppression the Left wails and gnashes its teeth over? Only in their own fevered minds.

  5. Submitted by Dennis Tester on 08/27/2012 - 06:56 pm.

    My only complaint

    is that the court didn’t include a strongly-worded suggestion to the Secretary of State that he step down.

  6. Submitted by Pete Barrett on 08/27/2012 - 07:07 pm.

    Activist Judges

    So this is what the conservatives have been yapping about for so long. Why do these judges have to ignore established law that says this is the SOS’s jurisdiction? Enough legislating from the bench.

  7. Submitted by James Hamilton on 08/27/2012 - 09:56 pm.

    Too bad our former Chief Justice

    isn’t still on the bench. As it stands, this appears to be a party line decision.

    In this regard, I would point out that the rules of statutory construction also prohibit the Court from disregarding the existence of a statute or ant express portion thereof, which it clearly does here. As the court notes, the pertinent statute states that the Secretary of State shall “provide an appropriate title for each question printed on the [constitutional amendment][4] ballot. The title shall be approved by the attorney general, and shall consist of not more than one printed line above the question to which it refers.” Minn. Stat. § 204D.15, subd. 1.

    The majority’s construction of the statute completely vitiated the role of the Attorney General, whom it is important to note is a Constitutional officer of the state. Moreover, the construction selected by the majority was not necessary to avoid a decision on Constitutional grounds. The legislative and the executive branches enacted a law designating the manner in which a proposed amendment would be captioned. The majority chooses to allow one party to that enactment to now ignore it.

  8. Submitted by Charles Holtman on 08/27/2012 - 10:19 pm.

    Mr Musich – With all due respect, Mr Ritchie responded by suggesting that voters gain some knowledge of the proposed amendments before voting. Mr Zellers claimed that the decision was necessary to rein in a power-hungry radical bent on destroying the American way. Do you not observe a distinction between these responses?

  9. Submitted by Nathaniel Finch on 08/28/2012 - 09:24 am.

    It was a split decision

    All the Pawlenty appointees ruled with the majority on these cases. The non-Pawlenty justices dissented. A partisan decision by a partisan court. T-Paw didn’t just leave us deteriorating bridges. It will take a generation to undo the damage he did to this state if it can be undone at all.

  10. Submitted by David Johnson on 08/28/2012 - 10:46 am.

    Statutes cannot supercede the Constitution

    All the complaints about the ‘statutes’ being clear ignore the basic facts on the ground. Like the Federal Constitution is for the country, our State Constitution is the supreme law of the state and cannot be amended or superseded by a simple statute no matter how long it may have been on the books.

    The Constitution gives sole authority to bring forth amendments to the Legislature. The SOS has absolutely no role in the process. The statute can only take effect if the Legislature doesn’t add a title. It’s a back up to the Constitutional process, not a replacement.

    Now 3 DFL elected state officers, Dayton, Ritchie and Swanson have all been found to have violated their constitutional offices by acting beyond their authority. The House is considering beginning impeachment proceedings against them as they should.

  11. Submitted by Mike Downing on 08/28/2012 - 04:37 pm.

    Get on with the vote!

    The legal cases have been heard & ruled upon in the state & federal courts. It is now time for us to get on with the vote on November 6th! I’ll make a bet that Voter ID Amendment will pass by a large margin and the Marriage Amendment will pass but with a much smaller margin.

  12. Submitted by Jim Roth on 08/29/2012 - 12:19 pm.

    Partisan Rulings Make Bad Law

    There is an an old legal adage that “Close cases make bad law.” It appears that this is a slight variation that partisan rulings make bad law. I would refer to the U.S. Supreme Court ruling in the infamous “Bush v. Gore” where even the majority was compelled to state in its partisan ruling that the case should have no precendential value. Another way to describe them is outcome-based rulings, great if you’re on the willing side but hardly a victory for the rule of law.

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