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Supreme Court affirms legislative control of constitutional amendment process

As a result, the voting amendment will stay on the ballot and both it and the marriage amendment will carry their original titles.

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.

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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.”

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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.”

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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.”