Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Amending the Constitution: History and Hysteria

The Transportation Amendment to the Minnesota Constitution, which was put to the voters last fall following a contentious detour through the court system, is but the latest instance in a legacy of litigation involving constitutional amendments in Minnesota.

Last year’s proposed amendment to the state constitution to increase transportation funding attracted a majority of voters and a lawsuit to boot. The measure, which will add some $300 million annually to state transit and highway budgets, was approved by a solid 58.8 percent of the voters at the polls last November.

But before it reached the electorate, the proposition had to withstand a legal challenge by a bipartisan coalition of 13 legislators from Greater Minnesota, teachers, and agriculture groups. They were fearful that reallocating funds to transportation will reduce money for school and rural needs.

They petitioned the state Supreme Court to bar from the ballot the proposal that would require the Legislature to use at least 40 percent of the revenue from the 6.5 percent motor vehicle sales tax for mass transit projects and “no more than 60 percent for highways.” The challengers asserted that the language of the so-called Transportation Amendment was confusing and should be stricken from the ballot, claims supporters of the measure deemed hysterical.

Transportation Terminology

The Transportation Amendment, approved last spring by both houses of the Legislature, proposed to amend Article IV of the Constitution by requiring allocation of “not more than 60 percent” of revenuefrom the motor vehicle sales tax for highways and “not less than 40 percent” for public transportation. The question, as framed on the ballot, was whether the Minnesota Constitution should be amended so that the tax revenue “is dedicated at least 40 percent for public transit assistance and not more than 60 percent for highway purposes.”

The challengers sued Secretary of State Mary Kiffmeyer, a Republican,  shortly before the general election, alleging that the terminology of the measure was misleading with respect to allocating tax revenues between public transit and highways. They claimed that the language of the proposal authorized all money to be applied to transit and none to highways, and that the language on the ballot was misleading in suggesting a 40 percent – 60 percent split between transit and highways.

But the Supreme Court disagreed in Breza v. Kiffmeyer, 723 N.W.2d 633 (Minn. 2006). It issued an interim order denying the petition 12 days before the election and promulgated its written ruling nine days after the amendment was approved by the voters.

The Court began its per curiam decision criticizing the challengers for “delaying as long as they did” in starting the case after the question was already printed on absentee ballots soon to be distributed. But rather than invoking laches, the Court chose to pass on the merits.

Prior case law prohibits the Court from examining the “form and substance of a ballot question …” simply because the Court may believe the question “was not phrased in the best or fairest terms.” The language on the ballot satisfied the requirement that the “clear and essential purpose” of the proposal is “fairly expressed.” The measure passed muster because it “unambiguously establishes only a mandatory minimum allocation for transit and a corresponding mandatory maximum allocation for highways.” The actual allocation “within the parameters is left to the Legislature.” While some voters might erroneously regard the language as exhibiting a “firm 40-60 allocation,” the terminology is not “so unclear or misleading [to] voters of common intelligence.”

The transportation challengers were not the only losers in the litigation. While they lost the case and the vote at the polls, their litigation adversary — Secretary of State Kiffmeyer — was voted out of office, replaced by DFL’er Mark Ritchie, last November.

Surviving both the Supreme Court and the voters, the Transportation Amendment became the 119th amendment to be added to the state constitution. The transportation brouhaha was but the latest chapter in the story of litigation over state constitutional amendments during the state’s 148-year history.

Political Process

Although imbued with political considerations, the amendment process is beguilingly simple. Under Article IX of the state constitution, a proposal requires approval by a majority in each house of the Legislature, along with approval by a majority of voters at the next general balloting or at a special election. But a majority vote of the electorate is not enough to adopt a constitutional amendment. Under Article IX, §1, adopted in 1998, an amendment cannot be approved unless it is favored by a majority of all of those voting at the election, including those who do not cast a ballot on the constitutional proposition.

Alternatively, two-thirds of each legislative body may call for a constitutional convention, which must be approved by a majority of voters. Any new constitution must then be approved by 60 percent of the electorate. This process, however, has never been invoked in state history. Rather, all amendments have gone through the electoral procedure.

The governor plays no role in the amendment process. The courts also have no official role in the amendment process, although they are occasionally called upon to resolve litigation arising from it. In so doing, they exercise original jurisdiction, without any lower court involvement.

Throughout Minnesota’s history, 212 proposed amendments to the state constitution have made it through the Legislature and have been submitted to the voters. A slight majority, 119, have been approved, while 93 have been rejected. Those that have been approved include the first four, put to the voters from 1858-1860, as well as the most recent quartet, adopted from 1996-1998, before the Transportation Amendment in 2006.

The likelihood of ratification has increased in recent years. Since 1970, nearly 80 percent of proposed amendments — 25 of 32 — have been approved by the voters. Only a single proposed constitutional amendment that made it to the ballot has been defeated in the last 20 years: a 1994 measure to permit off-track betting on horses. Moreover, this was the only one of 15 proposed constitutional amendments offered since creation of the Court of Appeals in 1982 not to win ratification by the voters.

Voting Views

Constitutional amendments in Minnesota have had a lively history, often reflecting views of voters’ juxtaposition with national trends. Shortly after the Civil War, Minnesota voters twice defeated measures to amend the constitution to allow African-Americans to vote. The voters finally approved the measure in 1868, but the decision proved to be nearly superfluous since two years later the 15th Amendment to the U.S. Constitution was ratified, granting citizens the franchise regardless of race.

But Minnesota was ahead of the curve with respect to women’s suffrage. In 1875 the constitution was amended to grant women the right to vote in school board elections; this was nearly 45 years before the United States Constitution eliminated voting restrictions by gender. In 1898 a constitutional amendment gave women the right to vote for library boards and serve on those bodies.

Minnesota also got the jump on lowering the voting age. In 1970 the electorate approved reducing the voting age from 21 to 19 years of age, which preceded by a year the ratification of the federal 26th Amendment, which lowered the voting age to 18 for all Americans.

Although Minnesota lowered the voting age to 19 a year before the nation extended the franchise to 18-year-olds, it did not reduce the age of eligibility for public office, as two candidates discovered to their chagrin in Jude v. Erdahl, 296 Minn. 200, N.W.2d 715 (1973). After the voting age was lowered, the young candidates sought election to the Legislature prior to reaching their 21st birthday, which was the age requirement in the state constitution and Minn. Stat. §202.04, Subd. 1.

The Supreme Court held that the constitutional amendment lowering the voting age “amended by implication” another constitutional provision requiring that state legislators be qualified voters and continued the age of eligibility to hold the office at 21. Because the constitutional amendment expressly retained eligibility for public office at 21 years, “those who voted on the question were led to believe that the only effect … was to reduce the voting age … to 19 without affecting the existing age for holding office.” Therefore, the 21-year threshold remained in effect for holding office and still exists.

Defeat Destined

Some measures seem destined for defeat. A proposed constitutional amendment to authorize the issuance of state hail insurance was defeated twice in the early part of the 20th century, although each time it was approved by more than two-thirds of those who cast ballots on the issue. The measure was rejected because of the large number of abstaining voters, which left the proposal short of a majority of the electorate on both occasions.

The same fate befell proposals on two occasions to establish initiative — a process allowing citizens to place statutes on the ballot directly — and referendum — permitting citizens to vote on proposed legislation. In 1914 and again in 1980, proffered constitutional amendments to establish initiative and referendum were defeated. As with the hail insurance measure, although the proponents obtained more votes than the antagonists each time, the measures fell short of majority ratification on both occasions because some people did not vote on the issue.

Litigation Legacy

The constitutional amendment process has also been the subject of judicial rulings. Before last fall’s decision, the Supreme Court passed upon a number of cases involving constitutional amendments, most recently in 1983. But its legacy of litigation goes back at least a century.

Any irregularities regarding the issuance of state-backed railroad bonds, which were approved by voters before Minnesota was a state, were cured by Minnesota’s subsequent admission into the Union and ratification of the state constitution. So the Court ruled in Secombe v. Kittelson, 29 Minn. 555 12 N.W. 519 (1882). The issue arose when a lawsuit sought to restrain the state treasurer from paying public funds on bonds issued by the state for construction of railroads. The challenge contended that the constitutional amendment that authorized issuance of the bonds was not lawful because it was approved a month before Minnesota’s admission into the Union.

To resolve the issue, the Court engaged in a “brief history of the formation adoption of our State Constitution.” The bonding measure was approved as an amendment to the territorial constitution, about a week before the state was officially recognized. The challenger contended that since the amendment was passed before the state was officially recognized and “the Constitution was not yet in force,” it was invalid and the bonds could not be redeemed. The argument gave the Court pause; it noted that, if accepted, the challenge to the bonds would cause “grave results” because of the “various and extensive … interests, public and private, which depend upon their validity,” that would suffer “serious … consequences”, if the bills were not upheld.

To avert this dilemma, the Court salvaged the measures on two alternative grounds: congressional action admitting Minnesota to the Union “healed” any irregularities; and any defects in the process were “cured by the recognition and ratification” of the amendment when the state constitution was approved shortly after Minnesota was admitted to the Union.

Another case that raised issues of “grave importance” with “far-reaching consequences” was In re McConaughy, 106 Minn. 392, 119 N.W. 408 (1909), which posed a challenge to a pair of turn-of-the-century amendments to allow raising taxes for public improvements. The St. Louis County District Court held that the amendments were not properly adopted because they had been juxtaposed on the official ballots used at the election and the sheets used for counting the votes.

The threshold issue was whether the issue was too “political” for adjudication and, therefore, outside the jurisdiction of the courts. The Court rejected that contention, pointing to the uniform practice of courts exercising “authority to determine the validity of the proposals, submission, or ratification of constitutional amendments.”

Armed with the authority to determine “whether a constitutional amendment has been legally submitted and adopted,” the Court proceeded to the merits. It held that the state Canvassing Board properly counted the ballots and concluded that the two amendments passed and that the trial court erred in its assessment that one of the measures had passed, and one had been defeated, because of the “machinations” in the balloting process.

In MCLU v. State, 302 Minn. 216, 224 N.W.2d 344 (1974), the Supreme Court struck down a statute providing tax credits for tuition in nonpublic schools. While the ruling was based on the 1st Amendment to the U.S. Constitution, the Court noted that the measure also infringed Article VIII, §2 of the state constitution, which bars public funding of religious schools. The provision, adopted in 1870, was valid because it received more affirmative votes than negative, although it was not passed by 50 percent of all the voters, many of whom abstained. However, under the pre-1898 constitutional provision, it was “properly ratified” since it was approved by a majority who voted on the amendment.

‘Single’ Subject

More recent challenges to the constitutional amendment process have revolved around the way dual amendments were submitted to the voters. In Fugina v. Donovan, 259 Minn. 35, 104 N.W.2d 911 (Minn. 1960), the challenger sought to prevent two “coupled” constitutional amendment proposals from being submitted to the voters. One of the proposals was to lengthen the legislative term from 30 days to 90 days per session; the second was to allow legislators to serve as notaries public and to seek election to other offices, which was then prohibited by the Minnesota Constitution. The challenger contended that the two amendments could not be submitted as a single question in violation of the provision of Article XIV, §1 of the state constitution that requires each amendment to be voted upon “separately.” This provision parallels another constitutional proscription, Article XIV, §17, against legislation entailing more than a “single subject.”

While the two amendments could “easily and properly” have been submitted separately, their joint placement on the ballot was not illegal. Since both provisions in the amendment were “rationally related … with the burdens of being a legislature,” they could be combined together, although it would be “preferable” to have them submitted separately. Because of the “great deference” accorded the Legislature in matters “properly within its purview,” the Court was reluctant to dismantle the amendment and bifurcate it into two provisions, even though the “logical relationship between the propositions [was] … somewhat remote.” Therefore, the two provisions could be combined into a single proposition, which incidentally fell short by about 2 percent from being ratified.

The Court revisited the “single subject” issue in Wass v. Anderson, 312 Minn. 394, 252 N.W.2d 131 (1977), which proposed various constitutional amendments dealing with taxation and appropriation for public highways. A group of commercial truck stops challenged the measure on grounds that it violated the “single subject” provision of the Minnesota Constitution.

The Court rejected the challenge, reasoning that the constitutional limitation does not apply to a proposed constitutional amendment. Because a constitutional amendment “is not a single subject in itself,” a proposed constitutional amendment can be included in a bill containing other provisions, provided that the provisions are “all germane to the same general subject matter.” The various taxing and spending measures all had a “logical and natural connection,” which permitted them to be embraced within a single piece of legislation.

The Court also rejected plaintiffs’ contention that the measure violated the requirement of Article IV, §17, that the subject of the bill must be “expressed in its title.” The title of the bill — “Transportation” — said the Court, is a general term that is not likely to cause any legislator to be “misled” and is fairly indicative of the contents of the law. But the outcome of the case was anticlimactic because themeasure never made its way onto the ballot, nor were its provisions enacted as constitutional amendments.

Another taxing dilemma regarding the process for amending the state constitution was addressed by the Supreme Court in Pickands Mather & Co. v. Commissioner of Revenue, 334 N.W.2d 155 (Minn. 1983). The Tax Court held that a taconite mining company could apportion various taxes for a four-year period and that an additional production tax could be deducted in calculating the occupation tax. The case arose under the Taconite Amendment, Article X, §6, which was enacted in 1964 and limited any change in tax laws imposed upon the taconite industry for 25 years, a measure the Tax Court characterized as intended “to ensure investors in the taconite industry of fair tax treatment and thereby to encourage taconite development.”

The Supreme Court both agreed and disagreed with the Tax Court, holding that a taconite mining company that did business both within and outside of Minnesota could not apportion any of its taxes, while the additional production taxes were “properly deductible in computing the taxable value of ore.”  

Constitutional Conclusion

Constitutional changes are the product of the Legislature and the will of the people. They do, occasionally, however take a detour through the court system, which generally concludes to uphold the process and any ensuing constitutional amendments that pass muster with the voters and the legislative branch.

MARSHALL H. TANICK is an attorney with the law firm of Mansfield, Tanick & Cohen, P.A., in Minneapolis and St. Paul. He is certified as a Civil Trial Specialist by the Minnesota State Bar Association (MSBA) and represents employers and employees in a variety of constitution related matters.

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