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Minnesota Supreme Court weighs edited ballot question titles

ST. PAUL, Minn. (AP) — A dispute over the titles that will appear above two proposed constitutional amendments on the November ballot landed Tuesday before the Minnesota Supreme Court, with justices questioning attorneys on the limits of the Legislature's power to control the details of ballot questions.

Six of the court's seven justices heard oral arguments Tuesday after Secretary of State Mark Ritchie substituted his own titles for the ones approved by the Legislature, prompting legal challenges from advocates of a constitutional ban on gay marriage and a photo identification requirement for voters.

Ritchie, a Democrat, changed the title for the marriage ban from "Recognition of Marriage Solely Between One Man and One Woman" to "Limiting the Status of Marriage to Opposite Sex Couples." He rewrote the photo ID title from "Photo Identification Required for Voting" to "Changes to In-Person & Absentee Voting & Voter Registration; Provisional Ballots." His titles were approved by Attorney General Lori Swanson, also a Democrat.

Attorney Jordan Lorence, who represents Republican lawmakers and other backers of the amendments, said the Legislature's power to propose constitutional amendments trumps a law requiring the secretary of state to provide titles for ballot questions. He said Ritchie disregarded the Legislature's intent when he changed the titles.

"They were 100 percent both of them passed under the Legislature's authority to pass constitutional amendments," Lorence told the justices.

Attorney Erick Kaardal, who gave arguments in support of the original voter ID title, criticized Ritchie for leaving out the word "photo."

"Of five sentences of the amendment, three of them contain the reference photo identification," he said. "It's hard to fathom how a proposed title could not include that phrase."

State Solicitor General Alan Gilbert argued that Ritchie had to provide titles for ballot questions after Democratic Gov. Mark Dayton vetoed both constitutional amendments. Even though Dayton doesn't have the power to keep questions the ballot, Gilbert said his vetoes voided the original titles.

The legal issue turns in part on whether the titles are considered ordinary legislation subject to a gubernatorial veto, or whether they are part of the Legislature's exclusive power to propose constitutional amendments for approval by voters.

As the 90-minute hearing was beginning, Lorence argued that the secretary of state should use the Legislature's title if one is specified, prompting Chief Justice Lorie Gildea to jump in.

"Except they didn't say that," she said, questioning him on the language of the statute and the state constitution.

Justice David Stras said the court has ruled in the past that it has the power to review constitutional amendments proposed by the Legislature. He questioned whether that indicated limits on lawmakers' power over amendments.

"It seems to me it's very hard to make an argument that the Legislature has exclusive authority over amendments," he said.

Lorence said Ritchie made no changes to the title of a 2008 constitutional amendment raising the state sales tax for outdoors and cultural projects, a ballot question approved by a Democratic Legislature. He said that showed that the normal practice is for the secretary of state to accept the Legislature's title.

But Gilbert said if the court rules against Ritchie's titles, the justices risk unraveling 90 years of constitutional amendments approved by voters after being processed under the 1919 law giving the secretary of state authority to write titles.

Justice Paul Anderson asked the attorneys whether the court could substitute the full text of the constitutional amendments for the Legislature's ballot questions. Both amendments are significantly longer than the two- or three-line questions that voters otherwise would see.

"I see problems with both descriptions," he said. "Do we have the power to say a pox on both houses?"

Justice G. Barry Anderson said he worried the current dispute will draw the court into perennial lawsuits over constitutional amendment titles.

"We're going to have a separation of powers argument every summer," he said.

Ritchie said in a statement that he has sole authority to provide titles for constitutional amendments.

"Under state statutes, no other agency or branch of state government currently has this authority," he said.

The court is expected to rule within a month. Justice Helen Meyer, who is retiring on Aug. 10, did not participate in the hearing.

Copyright 2012 The Associated Press.

Denton (Denny) Newman Jr.
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