Minnesota Supreme Court hearing July 31
ST. PAUL, Minn. -- The Minnesota Supreme Court waded into to a complex question Tuesday of which branch of government has final say on constitutional amendment ballot titles.
At issue is Secretary of State Mark Ritchie's decision to formally change the titles of two controversial ballot questions, one banning same-sex marriage and another requiring photo IDs in order to vote in person or absentee.
"The legislature proposes the amendment and then it goes to the people," Jordan Lorence, a Washington D.C. attorney hired by the Republican-controlled State Legislature told the High Court.
"And it seems the only government authority that has plenary oversight is the Legislature."
The legislature passed a bill in 1919 delegating titling duties to the Secretary of State, an elected official who oversees business licensing and elections.
Lorence suggested that was designed to be an administrative function only, allowing the Secretary of State to make minor changes to properly format the wording on the ballot.
"And 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."
Ritchie's Reasoning
Ritchie, however, used that authority to change the titles of the two ballot questions in ways he deemed would more accurately reflect the changes those amendments would bring about in the state.
The marriage amendment was originally titled "Recognition of Marriage Solely Between One Man and One Woman." Ritchie revised it to "Limiting the Status of Marriage to Opposite Sex Couples."
The Photo ID ballot question was labeled "Photo Identification Required for Voting" by the legislature. Ritchie changed that to "Changes to In-Person & Absentee Voting & Voter Registration; Provisional Ballots."
In a March interview, Ritchie told KARE 11 the average voter reading the photo ID ballot question wouldn't understand fully how it would change elections.
"What's proposed in the Constitution is a complete overhaul of our elections system that would affect almost every Minnesota voter," Ritchie explained.
"The largest part of that proposed constitutional amendment has to do with eliminating same day registration and replacing it with provisional voting."
In that system those lacking state-issued ID, or those who can't prove residence in that precinct because of outdated ID, will be issued provisional ballots that aren't counted on Election Day.
Those ballots can be added to the totals in the days after the Election, if the identities and addresses of those provisional voters are verified. Ritchie said that could eventually trip up all of the people who register to vote on Election Day, because poll workers aren't equipped to run ID checks.
There's no mention of the provisional voting system in the ballot question itself. A new ID standard for absentee voters is also not referenced in the question voters will see.
Supreme Court hearing
"The Secretary of State's been doing this for 90 years," Solicitor General Alan Gilbert, who appeared on behalf of the executive branch and the Secretary of State, told the Supreme Court.
"And as a result a lot of proposed constitutional amendments have passed based upon the title prepared by the Secretary of State."
He wondered aloud whether reversing that statute would affect amendments already passed by the voters.
"I don't want to be an alarmist, but it's worth considering," Gilbert said. "A consequence of 90 years of doing it one way, and then somebody coming in 90 years later and saying well the secretary didn't have the authority to do it."
That's exactly what Chief Justice Lori Gildea suggested may happen.
"The fact that somebody has been behaving unconstitutionally for years -- let's look in the aren of gender discrimination, for example -- that doesn't make it right!"
It was clear the case raised significant separation of powers issues, because the executive branch clearly has the authority in some situations to nullify or alter actions by the legislative branch.
It would be the judicial branch deciding the case, and the six justices on the bench Tuesday at times appeared to see things both ways.
"The legislature has passed a statute giving the secretary of state authority to create these titles," Justice David Stras said while Lorence was presenting the legislature's case.
"Obviously that was ordinary legislation. Why isn't this ordinary legislation?"
But later, during Gilbert's presentation, Stras suggested that the Legislature's will does trump the Secretary of State's authority when it comes to ballot question titles.
"You still get to the point where you say maybe it's not appropriate because the legislature has, perhaps, has exclusive authority in this area," Justice Stras said to Gilbert.
The Solicitor General, in his response, suggested the legislature needs to use its authority in fair manner.
"As long as it's accurate the voters have a chance of understanding it," Gilbert replied. "And the voters need to be as informed as possible, especially when you talk about the voting amendment!"
Justice Paul Anderson suggest that, rather than siding with the Legislature or Secretary of State, perhaps the High Court should just put the full text of the constitutional change on the ballot.
"These are emotionally charged, politically motivated amendments," Anderson said. "
"And I see an almost unsolvable problem because one side is going to say it's described this way, one side is going to say it's described the other," he continued. "And I see problems with both descriptions!"
The court has yet to decide a separate case filed by opponents of the voter photo ID amendment, asserting that the ballot question is misleading.
They say the question voters will see at the polls makes no mention of the provisional voting system, or the new "substantially equivalent" standard of verifying absentee voters' identities.
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