This week saw some briefs filed in the lawsuit over Secretary of State Mark Ritchie’s attempt to unilaterally change the title of the Minnesota Marriage Amendment. The briefs are the first real meat in the case, and help clarify some of the questions I asked two weeks ago.
In the spirit of the moment, I’ll keep my comments brief (see image). The first document filed was an amicus brief from nineteen Minnesota professors of law, most of them actively involved in the campaign against the Marriage Amendment. The group is led by Dale Carpenter, of whom I am rather fond. Their file can be found here.
Their most important factual finding goes to my question of precedent. It turns out that only three ballot amendments in state history have had a substantive ballot title specified by the legislature — two of them in the current session. They are the Marriage Amendment, the Photo ID Amendment, and the Legacy Amendment of 2008. This means that the legislature’s assertion of power over ballot titling, while not unprecedented, is quite recent, which should always raise the judiciary’s suspicions. Otherwise, the amici argue that the legislature divested itself of its plenary power over the mode of proposing amendments to the people when it passed the statute delegating that power to the Secretary of State way back in 1919.
The petitioners’ reply brief appeared a few days later. I had to write to the court for a copy; it is here.
Their most important factual finding goes to my question last week about whether Gov. Dayton’s “symbolic veto” followed the form of a proper veto. Turns out, he didn’t. In the opinion of the House clerks, the Senate Registrar, and the Minnesota Revisor of Statutes the amendment bill had no ordinary legislation in it, and therefore concluded no part of it could be vetoed, and therefore there was no formal presentment to the governor (it was sent to him “for your information” only). The governor cannot veto a bill not presented to him, and the governor made no effort to have the bill presented to him, making no suggestion whatsoever that the Revisor’s office had misjudged the content of the bill. Subsequently, the governor’s “symbolic” veto was considered purely symbolic, and was not entered into the legislative record. The same state officers who did not present the bill to the governor for veto did not recognize his veto. Since the veto was not passed on to the legislature in any way, the legislature could not have symbolically overridden the symbolic veto even if it had been so inclined. The first peep out of the governor’s mansion indicating that they believed the veto in any way effective was Secretary of State Ritchie’s titling decision… more than a year later!
The most delicious irony uncovered in the petitioners’ reply brief is that Secretary of State Ritchie was also the Secretary of State in power when the Legacy Amendment was passed. It included a title designated by the legislature. In that case, Ritchie did not exercise the exact responsibilities under §240D.15 (namely, submitting a ballot title to the attorney general for approval) he now argues are mandatory!
This is not a tough case. Despite the amici‘s attempt to assert that this is somehow a radical power grab by the legislature, it’s a plainly novel attempt by the executive branch to seize power under an irrelevant statute, against the grant of the state Constitution, and ignoring the governor’s clear failure to effectively veto the bill even had he the authority to make the veto. It is embarrassing to see Dale Carpenter signing the amicus brief, much less spearheading it. I’m filing this post under “politics,” not just “law,” because it’s clear that politics is the game being played here.
However, I did get to make an underwear joke at the top, so it’s not a total loss.
A ruling is expected on July 31.
DISCLAIMER: This publication of Minnesota court documents is made with the understanding that I, James Heaney, have complied with all relevant statutes and rules regulating the release of judicial records.