Predicting how any high court will rule has long been considered an exercise in futility — see: “pulling a John Roberts” — but that doesn’t stop law experts, advocacy groups and journalists from trying to forecast the decision each time a controversial issue surfaces.
The Minnesota Supreme Court heard arguments Tuesday reviewing whether the secretary of state has the authority to rename the two constitutional amendments set to appear on the November ballot. On July 17, it also heard arguments about whether the wording of the Voter ID ballot question is misleading and should be taken off the ballot.
To some court watchers, Tuesday’s comments by two justices — Paul Anderson and Alan Page — provide insight into which way the court may be leaning on both lawsuits.
Dan McGrath, executive director of the pro-Photo ID group Minnesota Majority, said he thinks the court took a preliminary vote after the first lawsuit’s oral arguments in mid-July and is now drafting a formal opinion.
The court is expected to release both opinions by the end of the month to give election officials the necessary time to prepare ballots.
But Tuesday’s hearing on the combined lawsuits for the Photo ID and marriage amendment titles may have offered a glimpse of the justices’ thought processes just two weeks after they heard the initial case.
“They gave pretty strong hints about what that formal opinion is going to be today, I thought,” McGrath said after the hearing, noting, though, that it’s always difficult to predict a court’s ruling.
The court appeared to face a tough decision earlier this month in the first lawsuit: whether to take the Photo ID amendment off the ballot and send it back to the Legislature, or to replace the ballot question with the entire text of the proposed amendment for voters to read.
As Tuesday’s oral arguments progressed, it appeared that at least two justices were leaning toward the replacement alternative.
“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?”
He continued his line of questioning shortly after, posing a hypothetical ballot question: “Shall the constitution be amended to read — ‘Boom, yes or no?’ — and put the full text there? Is that an alternative?”
Page appeared to follow Anderson’s train of thought.
MinnPost file photo
“Fundamentally, does [the Minnesota Constitution] require that the proposed language of the amendment that will ultimately end up in the constitution if it passed, is that what should be in front of the voter?” he asked an attorney representing Republican legislators, who back both amendments.
Posing a scenario similar to Anderson’s, Page added: “Should the Minnesota Constitution be amended to read as follows …?
“How complicated can that be? A lot less complicated than what we’ve been through in the last couple of weeks.”
Putting entire text on ballot?
McGrath speculated offhandedly about the court’s potential decision with reporters after the hearing.
“They’re going to put the entire amendment text on the ballot and preserve the Legislature’s title — that’s my prediction,” McGrath said later in an interview. “I think that would satisfy all parties … they’re trying to hit at that middle ground.”
Chuck Samuelson, executive director of the ACLU of Minnesota, which opposes the Photo ID and marriage amendments, predicted a similar outcome — that the court would place both measures on the ballot without titles.
“Our guess is there’ll be no titles and there’ll be no questions,” he said.
But Samuelson then downplayed his own view, saying with a laugh, “I’m as much a lawyer as Dan McGrath — how about that?”
McGrath also said he thought the specific decisions could differ between amendments because the marriage amendment is much easier to understand and simpler to read.
But if the court sticks with the Legislature’s original names, it would please amendment supporters, who have vigorously protested Secretary of State Mark Ritchie’s move to rename the two ballot questions.
McGrath also pointed to an Anderson comment when hazarding that the court wouldn’t simply strike the Photo ID amendment off the ballot.
“Some of the alternatives are worse” than putting the entire question on the ballot, Anderson had said. “I mean, in the first place, they [amendment opponents] said, “Take the whole proposal off the ballot.’ That would be very activist on our part.”