Six Minnesota Supreme Court justices will decide who has the power to create titles for proposed constitutional amendments.
And it may be them.
The high court listened nearly an hour and a half Tuesday to attorneys debating who can write titles to amendment proposals that will be on Minnesotans’ Nov. 6 ballot. A decision is expected within weeks.
In the end, lawyers saying the secretary of state has power to write titles and those claiming only lawmakers can do that agreed the court could order elections officials to print ballots without a title or a summary that usually goes on ballots, but with the entire proposed amendment language.
What appears to be a power struggle between Democratic Secretary of State Mark Ritchie and Republicans who control the Legislature could go deeper.
Minnesota Solicitor General Alan Gilbert told justices that if they overturn Ritchie’s titles it may mean some of the 62 amendments voters passed since 1919 could be tossed out.
Republicans who wrote the amendments say Ritchie wrote titles to influence voters to vote against them. In doing so, he rejected the GOP-written titles.
Gilbert argued to the justices that a 1919 law gave the secretary of state the duty to write titles. Since past secretaries of state have followed that law, he said, those amendments “potentially” could be invalid.
The solicitor general, however, said he did not know how many of the 62 amendments had titles penned by secretaries of state and how many were under legislative-written titles, like the 2008 amendment to raise sales taxes to fund outdoors and arts projects.
Attorney Jordan Lorence, representing GOP lawmakers and other amendment supporters who say Ritchie violated the state Constitution, disagreed with Gilbert. He said that none of the previous amendments would be affected.
Lorence argued that the case boiled down to whether Richie or legislators had the authority to write the titles. He claimed that the Constitution gives that power to the Legislature.
One constitutional amendment proposal would define marriage as between a man and a woman. The Republican-written title was “Recognition of marriage solely between one man and one woman,” but Ritchie changed it to “Limiting the status of marriage to opposite sex couples.”
The other proposal is to require Minnesota voters to show a photo ID. The original title was “Photo identification required for voting,” while Ritchie’s re-written version is “Changes to in-person and absentee voting and voter registration; provisional ballots.”
Justices were tough on both sides, with Justice Christopher J. Dietzen calling it “a close question.”
Lorence said that when lawmakers passed the proposals, the vote overrode the 1919 law giving title-writing authority to the secretary of state.
“Except, they didn’t say that,” Chief Justice Lori Skjerven Gildea shot back.
The Constitution gives legislators the sole ability to “propose” constitutional amendments, Dietzen said. “How we define that word ‘propose’ determines whether or not it’s the Legislature’s” job.
Justice David R. Stras said past Supreme Court justices have ruled in somewhat similar cases. “We have said we have the final say.”
But Justice Paul Anderson indicated that he may not want to follow that path. “We make mistakes.”
Amendments since 1919 made changes ranging from establishing the state lottery to extending statewide officials’ terms to four years to establishing a state highway system.
There are three parts to each constitutional amendment proposal: the title, a question summarizing the issue and the full amendment. The first two appear on voters’ ballots, but the full amendment may not.
Another case in front of the justices claims the summary on the voter ID amendment is not accurate and that the amendment should not appear on the ballot.