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Minnesota Secretary of State Mark Ritchie

Jim Mone, Associated Press

How to word amendments? Good question.

  • Article by: D.J. TICE
  • Star Tribune
  • August 5, 2012 - 9:52 PM

In November 2008, Minnesota voters approved what's called the Legacy Amendment to the state Constitution. The language they added to the state's basic charter (Article XI, Sec. 15) starts like this:

"Beginning July 1, 2009, until June 30, 2034, the sales and use tax rate shall be increased by three-eighths of one percent ..." The rest of the amendment explains how the state is to distribute the new taxes -- billions of dollars worth over those 25 years.

Curiously, though, the ballot question through which voters endorsed the Legacy Amendment appeared under a title that included not a single word about taxes. The title was: "Clean Water, Wildlife, Cultural Heritage, and Natural Areas." In short, a bit of a sales job.

The Legislature, controlled at the time by DFL majorities, had written that title. DFL Secretary of State Mark Ritchie, who is required by state law to provide "appropriate" titles for amendment ballot questions, adopted the lawmakers' title without objection. In a recent meeting with the Star Tribune Editorial Board, Ritchie noted that no one objected to it.

This history should be kept in mind by spectators to the great "title" bout of 2012. This year, Ritchie has locked legal horns with the Legislature, now controlled by Republicans, over two bitterly controversial proposed amendments concerning marriage and voting -- and over who has the proper power to write titles for amendment ballot questions when the Legislature and the Secretary of State disagree about the best wording. The dispute will be settled by the Minnesota Supreme Court, which heard arguments last week.

Both sides insist that their only aim is to produce titles that accurately reflect the amendments voters must consider. They would never dream of using a title to manipulate voters' attitudes toward an amendment (although of course the other side would).

It's possible to doubt these claims. The Legislature's title for the marriage amendment says it's about "recognizing" the traditional definition of marriage. Ritchie's title speaks of "limiting" marriage to opposite-sex couples. Recognizing sounds nice; limiting sounds harsh.

The Legislature wants the title on the voting amendment to focus on "photo identification," which is simple and popular. Ritchie's title leaves that out and mentions things like "provisional ballots," which sound complicated and mysterious.

So there could be some salesmanship and sabotage at work here.

But here's what's odd: Not one of the dueling titles this year is as brazenly manipulative as the title of the 2008 ballot question was. The Legacy Amendment, of course, had broad bipartisan support, so no one objected. This could be further evidence that bipartisanship isn't all it's cracked up to be, at least if candor in government is our aim.

The political hogpile on display in this year's multiple amendment lawsuits is no edifying spectacle. And yet, out from under it have emerged some worthwhile revelations and questions about the way Minnesota voters have long been, um, limited in exercising their power to approve or reject amendments.

Simplified, this seems to be the story: The Minnesota Constitution gives the Legislature alone the power to "propose" amendments, which it says must be "submitted" to voters. But from an early date, back in the 19th century, courts held that the form this submission took was entirely up to the Legislature, barring something grossly misleading.

And from early on, legislatures frequently chose to put before voters not the text of proposed constitutional amendments but ballot questions. Sometimes these were extremely brief and nondescriptive, just a few words noting the subject matter of the amendment. More often, especially in modern times, the questions were simplified summaries of the amendments. Almost a century ago, a law was enacted directing the secretary of state to provide an appropriate title for ballot questions.

No doubt the temptation was always there for proponents of amendments to write ballot questions -- and titles -- that described the proposals in appealing ways, or that at least left out unappealing parts. And perhaps opponents in the past pressed for language in questions or titles that seemed less appealing. At any rate, both of these things are happening now.

It all raises a simple question that plainly caught the interest of at least a couple justices of the state Supreme Court last week. Why shouldn't voters simply see the text of a proposed amendment itself, and vote on that? Wouldn't that eliminate all the potential for mischief with ballot questions and titles? And isn't it the most straightforward way to understand what the Constitution calls for?

A ruling imposing such a change may be unlikely. It would be, after all these years, a major reduction of the Legislature's long-held powers. It would probably, in general, make winning approval of constitutional amendments more difficult. That might be -- probably would be -- good for the state. But it would also be a sweeping transformation for the court to order singlehandedly.

All the same, it might be right. And at least by bringing this intriguing question to light, the mess this year's amendment battles have made may have turned out to be a blessing in an excellent disguise.

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D.J. Tice is the Star Tribune's commentary editor. 

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