Ritchie has no authority to replace constitutional amendment titles provided by Legislature
Yesterday, with the country’s full attention on the Supreme Court ruling, Minnesota Secretary of State Mark Ritchie announced that he was replacing the title for the for the marriage amendment that will appear on the ballot. His new title reads, “Limiting the Status of Marriage to Opposite Sex Couples.” The text that the Legislature provided for in the statute proposing the marriage amendment reads, “Recognition of Marriage Solely Between One Man and One Woman."
The trouble with this move—aside from the overt effort to influence the outcome of an election on the part of Minnesota’s chief election official—is that Ritchie has no legal authority to change the title provided by the Legislature.
I happen to have just looked into this exact issue because it came up in the legal challenge to the Voter ID constitutional amendment. The Voter ID lawsuit—filed on behalf of the League of Women Voters and others—claims that the Legislature is not permitted to provide a title to the amendment because state statute directs the Secretary of State to provide the title. While the statute might direct the Secretary of State to “provide an appropriate title” for ballot questions, the Legislature still retains the discretion to provide the title themselves.
Here’s how I explained the law in my Voter ID article:
In specifying a title, the Legislature is just following the lead of the 2008 Legislature. The language used to specify the title of the Voter ID amendment is cut and pasted directly from the act proposing the Legacy Amendment. If this is a fatal defect to the Voter ID amendment, then it must also be fatal to the Legacy Amendment. Oddly, the League of Women Voters signed on as petitioners and, thereby, signed on to this argument when they also publicly and enthusiastically supported the Legacy Amendment. If they were to win on this point, the Legacy Amendment may be at risk.
Not that Legacy Amendment boosters should be too worried. The petitioners won’t win on this point. The state constitution puts the Legislature fully in charge of the form and substance of any constitutional amendment. There is no constitutional role for the Secretary of State or the Attorney General in the amendment process and a constitutional allocation of power cannot be amended by statute. As such, the statute is not binding on the Legislature and there’s no need to debate the very debatable language of the statute. Indeed, in Duluth & N. M. Railway, 112 N.W. 897 (Minn. 1907), the Court clearly states that one Legislature cannot “bind its successor” in “prescribing the form and substance” of a ballot question.
The Legislature’s brief in the Voter ID case focuses on interpreting the statutory language and concludes the “statute simply provides a rule to govern instances when the Legislature does not specify a title for a ballot question.” However, and without arguing the point, in a footnote they do reference the issue of whether a Legislature can bind a future Legislature if the statute is read to give the Secretary of State sole authority to provide a title.
After reading the case law on this matter, there’s little question in my mind that Ritchie has no authority to replace the Legislature’s title with his own.