Advocates for a constitutional amendment bolstering a Minnesota ban on same sex marriage acknowledged concern Wednesday that a wording change imposed by the secretary of state would prove costly on Election Day.
In a legal brief filed ahead of a late-July Minnesota Supreme Court hearing, lawyers for Republican lawmakers and Minnesota for Marriage said it was improper for Democratic Secretary of State Mark Ritchie to substitute the title to appear above the November ballot question. The lawyers criticized the wording he chose as misleading and said it could sway votes.
"Even small changes in the wording of ballot measures and titles can have a dramatic effect on the election results," according to the brief. It was signed by Minneapolis attorney Erick Kaardal but assembled by a group of local and national attorneys who want the court to reverse Ritchie's changes.
The attorneys reiterated an earlier contention that Minnesota legislators hold all of the power to fashion titles for constitutional ballot questions. Earlier this week, Minnesota's attorney general said Ritchie was exercising authority under state law to pick appropriate titles.
Ritchie reworked the marriage amendment title to read: "Limiting the Status of Marriage to Opposite Sex Couples."
The pro-amendment side objects most strongly to the word "limiting," saying it feeds arguments that the constitution would be used to restrict rights. Amendment supporters note that state law already outlaws gay marriage and say their preferred title of "Recognition of Marriage Solely Between One Man and One Woman" should be restored.
The case will hinge on whether justices see any room for the executive branch to shape amendments headed for the ballot, as a state law may allow. The court could decide the Legislature retains exclusive power to craft amendments and all that comes with putting them to a public vote.
In their brief, the pro-amendment lawyers contend the state constitution "gives no role to the Executive Branch in the amendment process."
"Thus, the Legislature's power to author the ballot title is undeniably part of its constitutional power to propose," they wrote.
Jordan Lorence, a lawyer with the conservative Alliance Defending Freedom organization in Washington, advised the court in a separate filing that he will argue the case on behalf of the pro-amendment side.
The outcome will have a ripple effect because Ritchie also swapped the title for a proposed amendment to require photo identification and other changes at polling places. Backers of that amendment said Tuesday they would petition the court to block Ritchie's new title.
Separately, the court is considering whether the actual ballot question for the voter ID amendment is flawed and whether to remove it from the ballot.
Decisions in all of the cases are expected prior to late August to give election officials time to design and print ballots. Absentee voters can begin accessing their ballots in mid-September.