Supreme Court weighs authority to title proposed amendments

Mark Ritchie
Secretary of State Mark Ritchie in a file photo from May 18, 2010.
MPR Photo/Tim Nelson

The Minnesota Supreme Court is weighing whether Secretary of State Mark Ritchie overstepped his authority by putting new titles on proposed constitutional amendments.

Before the court is a dispute about whether Ritchie had the legal authority to rewrite the titles of controversial questions that ask voters to make marriage only between a man and a woman and require voters to present identification at the polls.

Ritchie, a Democrat, contends he does have the authority to write the titles of the amendments that land on the ballot. But Republican lawmakers say only the Legislature has that power.

When Minnesotans go to vote in November, they'll see three parts to each proposed constitutional amendment: a title defining the proposal, the question itself, and boxes to check yes or no.

It's clear that the Legislature has the authority to write the ballot question. Ritchie said it's his job to give them titles.

That puts him at odds with Republicans in the Legislature, who took their to the Supreme Court where their lawyer Jordan Lorence argued the constitution clearly gives the Legislature the last word on proposed amendments.

"The Legislature is given the authority under the constitution the exclusive power to propose constitutional amendments and that it delegates that at times to the secretary of state," Lorence told the justices on Tuesday. "When the Legislature steps in and says 'This is the title we want you to put on the ballot,' the secretary of state is supposed to acquiesce."

But the lawyer representing Ritchie said a law has been on the books since 1919 giving the secretary of state the authority to write amendment titles. Solicitor General Alan Gilbert warned the court that reversing that statute could call dozens of already enacted amendments into question.

"The consequence of now reconsidering 90 years of history, legislatively and case law, would be that 90 years of constitutional amendments are now in jeopardy," Gilbert said.

The political and historical stakes for this case are significant. In the short-term, the specific language that ends up on the ballot could influence the way people vote on the two proposed constitutional amendments.

Indeed, the language differences are dramatic. For example, the Legislature wanted the title of the proposal to ban same-sex marriage to be "Recognition of Marriage Solely Between One Man and One Woman." Ritchie has proposed this title: "Limiting the Status of Marriage to Opposite Sex Couples."

The six justices hearing the case appeared to be testing theories. Chief Justice Lorie Gildea's sharpest line of questioning was directed at Gilbert and how the secretary of state has ultimate control of the titles.

"Isn't the question and the title, what the people are going to vote on, isn't that all bound up on the Legislature's Article 9 [of the constitution] authority?" Gildea asked.

Some of the other justices directly challenged the attorneys representing the Legislature. Justice David Stras disputed the viewpoint that the Legislature has sole power over constitutional amendments, suggesting case law gives the courts a say when necessary.

"It seems to me that it's very hard to make an argument that the Legislature has exclusive authority over constitutional amendments when we in fact have held that we, as another branch of government, have authority to review those amendments," Stras said.

Justice G. Barry Anderson worried about the precedent and the legal problems that could arise if the court sides with Ritchie.

"Where that puts us, it seems to me, is in most general election years we're going to have a separation of powers argument every summer because if we go down this road, it seems to me that is where this leads," Anderson said.

The court is also weighing a separate challenge involving the voter ID amendment. The League of Women Voters and other groups contend the language of the amendment is misleading and vague, and that it should not be allowed on the ballot.

At one point during today's hearing, Justice Paul Anderson questioned whether the court should go beyond the ballot question and include the specific language that the Legislature wants written into the constitution.

"Do we have the power to say 'A pox on both houses?' " Anderson asked. "All you say to the people is 'Shall the constitution be amended to read: boom?' Yes or No? And put the full text there?"

Ritchie has asked the court to rule on the title issue by the end of August, so he has enough time to distribute general election ballots to overseas and military voters.