The partisan political battle over gay marriage and photo ID amendments developed into a full-fledged constitutional dispute at the Minnesota Supreme Court on Tuesday, with both the Republican-controlled Legislature and the DFL-controlled executive branch claiming the right to determine how the proposals will be described on the ballot.
The court vigorously questioned both sides on the issue of who should write the bold-faced titles of both the photo ID and the marriage amendments. No decisions were made, but two of the six justices asked whether the best bet might be to put the entire text of the proposed constitutional amendments on the ballot, rather than present them in a form favored by either side.
"It's odd to me that we can submit a question that kind of disappears into hyperspace after the vote," said Justice Paul Anderson during oral arguments on the title issue. "And there's an amendment that becomes part of the constitution that's never put before the people."
Justice G. Barry Anderson, meanwhile, expressed concern that constitutional wars between the two branches will become a regular feature. He worried out loud that "in most general election years, we're going to have a separation of powers argument every summer."
The court was asked by GOP legislators to restore the title language that the lawmakers selected for the two proposed constitutional amendments, which voters will consider on Nov. 6.
The justices also had been asked to decide a dispute over the photo ID ballot question; both decisions are expected this month. Justice Helen Meyer, who is retiring soon, did not participate in Tuesday's deliberations.
In approving the marriage amendment for the fall ballot, the Legislature titled it: "Recognition of marriage solely between one man and one woman." Secretary of State Mark Ritchie, citing a statute that charges his office with writing amendment titles, changed it to: "Limiting the status of marriage to opposite sex couples."
Similarly, the Legislature titled the voting amendment, "Photo identification required for voting." Ritchie's choice: "Changes to in-person & absentee voting & voter registration; provisional ballots."
Attorney Jordan Lorence of Alliance Defending Freedom, a religious legal group that often defends traditional marriage in court, told the justices that the state Constitution grants broad authority to the Legislature to send proposed amendments to the people for a vote. Lorence, representing the Republican legislators, said that if the Legislature chooses to write its own titles, as it did in these two instances, that takes precedence over any title proposed by the secretary of state.
Amendment supporters say Ritchie's titles were an attempt to help defeat the amendments. Lorence pointed out that in 2008, when the DFL-controlled Legislature proposed a Legacy funding amendment, Ritchie accepted the Legislature's proposed title without objection.
But Solicitor General Alan Gilbert, representing Ritchie and Attorney General Lori Swanson, said state law has, since 1919, charged the secretary of state with titling amendments. To change that process and overturn the statute could, he said, jeopardize all constitutional amendments adopted since then.
Both sides questioned closely
The justices tested both sides, including Lorence's argument that title-writing is the Legislature's job.
"If you say that the Legislature has the sole power, does the Legislature have the power then to submit a misleading or deceptive question to the people?" asked Justice Paul Anderson.
Long pause. "This court has said, 'No,'" Lorence replied.
"It appears to me the argument is that the Legislature can submit whatever it wants, and we have to be highly deferential," Justice Paul Anderson said. "I didn't get an answer last time ... and I want an answer to that now."
Lorence: "Um, my understanding of this is that ... "
Anderson interrupted: "This? What's the antecedent for this? I just need to know. I want to be clear what you are answering."
"Can the Legislature propose anything without any judicial oversight whatsoever?" Lorence asked. "I would say no. This has not been the practice of this court."
The justices were just as probing of the other side, interrupting Gilbert with pointed questions about why legislators, starting 90 years ago, would have agreed to hand off authority for writing titles to a partisan office.
"I am wondering how you square that precedent?" said Chief Justice Lorie Skjerven Gildea. Gilbert discussed the history of the relationship and added, "That is clear law since 1919."
Gilbert, meanwhile, defended Ritchie's title for the photo ID ballot question, saying it was more accurate than the Legislature's, giving the voters the "full breadth of the constitutional amendment."
Gildea asked why Ritchie asserted in a letter that his role in this dispute was "purely ministerial," suggesting he has little power or discretion. She said that, if that was true, once the Legislature has chosen the title, "wouldn't it be the secretary of state's obligation to take that title and put it on the ballot ... ?"
At another point, Gildea suggested that the matter of constitutional amendments need not include the executive branch at all. "I think this is a deal between the legislative branch and the people of Minnesota, and that's that," she said.
Justice Paul Anderson said the dispute highlights an old ethos: "Democracy is messy. ... These are emotionally charged, politically tough, debated amendments. I see them as an almost unsolvable problem because one side is describing this and one side is describing the other. And I see problems with both constructions."
Ritchie issued a statement saying he welcomes the court's "effort to address this separation of powers issue." He added that "providing a title for each constitutional amendment has been the responsibility of the Minnesota Secretary of State since 1919."
Jim Ragsdale • 651-925-5042 Baird Helegeson • 651-925-5044