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A Quick Rundown on Minnesota for Marriage's Lawsuit against the Secretary of State
If you read this blog, you are probably already aware of the lawsuit the supporters of the Minnesota marriage amendment have filed against Secretary of State Mark Ritchie. As the local paper-of-record relates:
In late June, Secretary of State Mark Ritchie, a Democrat, said he planned to change the title of the amendment question on the November ballot from "Recognition of marriage solely between one man and one woman" to "Limiting the status of marriage to opposite sex couples."
Supporters of the amendment, which would constitutionally define marriage as only the union of heterosexual couples, say Ritchie "unlawfully" changed the title.
This is an interesting little case. The politics of this are obvious (the Secretary of State wants the amendment defeated, and is changing the title to make it less attractive to the voters), but the law is not. Interestingly, it all revolves around Gov. Dayton's "symbolic veto" of the amendment back on May 25. Let's walk through the issues quickly.
Under Minnesota law, the Secretary of State normally has the power to determine the title of any amendment placed on the ballot, under §204D.15, subdivision 1:
The secretary of state shall provide an appropriate title for each question printed on the pink ballot. The title shall be approved by the attorney general, and shall consist of not more than one printed line above the question to which it refers.
However, in practice, this power is rarely exercised, because the state legislature usually submits its own titles for amendments being proposed to the people. Since those proposals, duly passed by both houses of the legislature, have the force of law, they override the general authority granted by §204D.15 and require the ballots to include the specific title passed by the legislature for the specific amendment. Sure enough, the bill requiring that the Minnesota Marriage Amendment be proposed to the people of Minnesota (S.F. 1308) did include its own title:
Sec. 2 SUBMISSION TO VOTERS
(b) The title required under Minnesota Statutes, section 204D.15, subdivision 1, for the question submitted to the people... shall be "Recognition of Marriage Solely Between One Man and One Woman."
Normally, this would override SecState Ritchie's authority, and for him to change the title would be a lawless act.
However, on May 25, Gov. Dayton vetoed S.F. 1308. This was universally understood to be a purely symbolic move; as an amendment to the Minnesota Constitution, Gov. Dayton's approval or signature was neither required nor requested. Here is what the Minnesota Constitution has to say about amendments (Article IX, Section 1):
A majority of the members elected to each house of the legislature may propose amendments to this constitution. Proposed amendments shall be published with the laws passed at the same session and submitted to the people for their approval or rejection at a general election. If a majority of all the electors voting at the election vote to ratify an amendment, it becomes a part of this constitution.
Note the extreme lack of governor in that equation. The legislature's proposed amendments are submitted directly to the people; the only power -- the only duty -- of the governor's executive branch is to submit the amendment question to the people.
The governor's officers accept this. However, Secretary of State Ritchie (and Attorney General Swanson) believe that §2(b) is not, technically, part of the proposed amendment. Since it does not deal with the amendment question itself, but with how the amendment will be proposed to the people, they argue, it is actually a statutory matter, not a constitutional one. Since statutes do have to be signed into law by the governor, Gov. Dayton's veto effectively stripped §2(b) out of the bill -- and therefore out of law. With the legislature's title eliminated, the Secretary of State's office has the statutory authority under §204D.15 to select his own title. And that title, as long as it essentially describes the law, can be every bit as biased and leading as the one the legislature passed.
Minnesota for Marriage will (presumably) argue that proposing the title of the amendment is part of the legislature's amendment power, and that it is therefore a constitutional matter over which the governor has no authority. Leaving aside that argument, which is fairly persuasive in itself, M4M has some additional strengths on its side:
As far as I am aware, the power Gov. Dayton & Co. are asserting is totally unprecedented in Minnesota history; if Gov. Pawlenty had known he could change the title on the Legacy Amendment, for instance, I'm sure he would have.
The idea that a governor can partially veto a bill has never been tested in court. The attorney general cites a 1994 attorney general's opinion that the governor's veto, exercised against a combined bill that contains both legislative and constitutional measures, is effective against the legislative measures but not the constitutional ones, but this was apparently not tested in court at the time. With a bill that is, actually, all about a constitutional amendment (and matters incident to its immediate proposal), it is not even clear that it comes before the governor, which calls into question whether even an ineffective veto is legal.
The move is transparently political. Of course, the original title was also chosen for political reasons (the legislature wanted the thing to pass), but the legislature made a clear, on-the-record good-faith effort to accommodate the concerns of the opposition. Moreover, the legislature is supposed to do politics. The Secretary of State is supposed to be essentially non-partisan. If M4M can show evidence that this move was politically motivated, it would strengthen its hand considerably.
What in the heck is a "symbolic veto" anyway? If I were M4M, I would review the transcript and footage of the actual veto -- if it did not follow the correct forms for an effective veto of a legislative measure, then it is not an effective veto, even if such a thing were legal. Does the fact that it was universally acknowledged to be merely symbolic deprive if of its effect, even if the proper forms were followed?
I don't know how this case will come out, and it's a very interesting little knot of constitutional questions. Most especially, I want to know what precedents are involved here, because (as a non-lawyer), I am pretty much in the dark on them, and they will probably be the deciding factor in the case. Still, if I were a betting man (and I am), I'd put $5 on Minnesota for Marriage to win this one. When one branch of government asserts a brand new power nobody's ever heard of before in order to win a political game, both of the other branches tend to be get really non-plussed about it.
The Secretary of State has asked the Supreme Court to resolve this matter by August 27th, so ballot preparation can proceed on schedule, so we should find out fairly soon who has the better of this case.
An almost identical case is expected over the photo ID amendment, which Secretary of State Ritchie retitled shortly after the marriage amendment.
As an opinionated aside, this incident illustrates that politics and law are now all-out brawls, with no quarter given -- and, increasingly, no quarter expected. It has always been that way to some extent, but there has also been a moderate middle that has elected officials based on their competencies rather than their ideologies, and which provided some natural immunity to the infection of politics in the non-partisan sections of government. After reviewing all the candidate information I could find, and attending the relevant booths at the State Fair, I myself judged that Mr. Ritchie, a liberal Democrat, was a more competent and experienced candidate for Secretary of State than State Sen. Dan "Doc" Severson, a Republican who is ideologically quite close to me (and an all-around great guy). I voted for Ritchie and trusted him to keep politics out of his office. (It was one of my very few election wins in 2010!)
It is now obvious that that was an error. Everything is politicized now, include the printing of ballots and the counting of votes. Partly this is due to the rapid and mutually destructive polarization that has emerged around the marriage issue. If you want to implement policy, it is now important not just to win the elections and get the votes. You also have to influence how the votes are proposed, how the regulations are written, and how the increasingly inevitable lawsuits are handled. It has become unreasonable to vote for anything but a partisan ticket, and there is very little room left to audit the candidates based on their competence or their experience.
And that's too bad.
UPDATE: From a reader:
"I would add another piece in favor of M4M against the SoS, and that is his rather obvious abuse of power on the Voter ID amendment. [The SoS has changed the original title, 'Photo Identification Required for Voting', to 'Changes to In-Person & Absentee Voting & Voter Registration; Provisional Ballots'.] I'd be willing to let the marriage amendment thing slide: it's biased, but clear. The Voter ID title has removed anything that could possibly identify the amendment, and replaced it with a vague soup of bits and pieces that in no way name what is in the amendment. Show that he is messing with amendments for purely political advantage there, and you have demonstrated intent.
Of course, I have no idea whether that would matter in the least in court, but it certainly makes me want to give him a swat."