On Tuesday, the Minnesota Supreme Court heard two cases on the same issue: Who has the final authority to write the titles of amendment ballot questions?
Secretary of State Mark Ritchie, a Democrat, changed the ballot titles of both the proposed voter ID and marriage amendments from what the Republican-controlled Legislature had originally written.
Solicitor General Alan Gilbert argued that based on a 1919 Minnesota statute, the role of titling lies with the secretary of state and attorney general.
Attorney Jordan Lorence, however, argued that the Legislature, not the secretary of state, has the “higher authority” to title ballot questions.
He said there is a two-step process: “the Legislature proposes the amendment; then it goes to the people.”
Chief Justice Lorie Gildea seemed to agree.
She later said, “I think this is a deal between the legislative branch and the people of Minnesota, and that’s it.”
The Legislature originally titled the marriage amendment “Recognition of Marriage Solely Between One Man and One Woman.” Ritchie changed it to “Limiting the Status of Marriage to Opposite Sex Couples.”
Supporters of the amendment, including Minnesota legislators and Minnesota for Marriage, filed a lawsuit in July against Ritchie and Attorney General Lori Swanson contesting the title change.
For the voter ID amendment, the Legislature penned the title “Photo Identification Required for Voting.” Ritchie changed it to “Changes to In-Person & Absentee Voting & Voter Registration; Provisional Ballots,” drawing another lawsuit from voter ID supporters a few weeks later.
During the hearing Tuesday, most of the arguments by both Lorence and Gilbert focused on authority, but attorney Erick Kaardal focused on whether the titles are misleading.
Kaardal raised issue with the lack of the term “photographic identification” in Ritchie’s new title.
“When there’s a proposed amendment that is so heavily focused on this idea of photographic identification, it’s hard to fathom how a proposed title could not include that phrase,” he said.
Justice Paul Anderson said he sees problems with both descriptions.
“Do we have the power to say a pox on both houses?” he asked.
Anderson questioned whether the court could instead write: “Should the Minnesota Constitution be amended to read as follows?” followed by the full language of each proposed amendment.
Justice Alan Page seemed to prefer that, too.
University of Minnesota constitutional law professor Dale Carpenter said taking that route would be “a very aggressive decision,” since courts are usually reluctant to decide cases that way.
Carpenter is one of a group of 19 law professors from all four Minnesota law schools who filed an amicus brief supporting the secretary of state’s authority to title the ballot questions.
He said he thinks the court will find Ritchie’s authority constitutional, and that his titles will go on the ballot in November.
The court is expected to rule by late August to allow time for ballot printing.
It’s also expected to rule by then on an earlier case assessing whether the language of the voter ID ballot question is misleading.
What’s in a name?
Opinions vary on whether the ballot titles would affect voters’ choices after all.
“The truth is, we don’t know what effect the ballot title has,” Carpenter said.
“My sense is that it will not be a large effect, whatever it is, and that voters will, for the most part, decide this based on the substance of the amendment.”
Minnesota Public Interest Research Group board representative Sydney Jordan said the group believes Ritchie is within his right to determine the titles.
“We think his title changes are more revealing as to the true nature of these amendments,” said Jordan, a political science and global studies senior.
But Ryan Lyk, chairman of the Minnesota College Republicans, said the lack of the term “photo ID” in the title is misleading to voters.
“[Ritchie] changed it to something that is worded completely differently from what it originally was intended to and what everybody else in the state is going to hear about over the next couple months,” Lyk said.
Carpenter said the court will likely focus on authority rather than on whose title is clearer.
“It’s not a choice between whether the secretary of state’s title or the Legislature’s title is better,” he said.
“I think if the court upholds his power … that’s the end of it, and his titles will go on the ballot in November.”
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