The proposed constitutional amendments on the ballot this fall may add to a rich lore of litigation over changes to the Minnesota Constitution.
The pair of constitutional amendments to be voted upon this fall by the Minnesota electorate provides an opportune time to review the legal history of revisions to the Minnesota Constitution.
Minnesota voters this November are slated to pass upon two proposed changes to the state constitution: 1) A proposition that lawful marriage is restricted to “one man and one woman”; 2) An amendment requiring legislation to establish photographic identification for voters. The former would ban “same sex” marriages, complementing the existing state law, Minn. Stat. §517.01, that already does so statutorily. The latter would necessitate legislative action, including establishment of the particulars of a photo I.D. system for voters.
Both propositions have created considerable controversy and may spark considerable litigation. Indeed, the march to the courthouse already has started. The Minnesota Supreme Court in July was slated to hear a pair of expedited challenges to the voter ID measure. In League of Women Voters v. Ritchie, No. A-120920, the challengers seek to block the proposal on grounds that the measure would “radically” revise Minnesota voting laws and the language of the amendment fails to “truthfully” inform voters of the vast changes the measure would portend. Another case, Limmer v. Ritchie, No. A12-1149, consists of a challenge to the authority of the Secretary of State to revamp the legislatively approved language of the ballot proposal.
The current litigation is the latest in the series of legal challenges to constitutional amendments. In 2006 the Transportation Amendment added some $300 million annually to state transit and highway budgets and was the most recent amendment approved, gaining support of a solid 58.8 percent of the voters at the polls.
But before it reached the electorate, the proposition was contested by a bipartisan coalition of 13 legislators from Greater Minnesota, teachers, and agriculture groups who feared that reallocating funds to transportation would reduce money for school and rural needs.
The Transportation Amendment proposed to amend Article IV of the state constitution. 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 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), issuing an interim order denying the petition 12 days before the election and promulgating its written ruling 9 days after the amendment was approved by the voters.
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 DFLer Mark Ritchie last November. But Kiffmeyer rebounded, was elected to the House from Big Lake, and helped shepherd the voter identification bill through the legislature.
Unlike the process for amending the federal Constitution under Article V, which requires approval by both houses of Congress, with two-thirds of Congress in accord, and ratification by two-thirds of the state legislatures, the amendment process in Minnesota is beguilingly simple. Under Article IX of the state constitution, a proposed amendment 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. Article IX, §1, adopted in 1898, provides that 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, 213 proposed amendments to the state constitution have made it through the legislature and have been submitted to the voters. A slight majority—120 or 56 percent—have been approved, while 97 have been rejected. Those that have been approved include the first four, put to the voters from 1858-1860, as well as a recent quartet, adopted from 1996-1998, plus 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.
Constitutional amendments in Minnesota have had a lively history, often reflecting the juxtaposition of voters’ views 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 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 Minnesota 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, anticipating 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, 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, 207 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. Therefore, the 21-year threshold remained in effect for holding office and still exists.
Some measures seem destined for defeat. A proposed constitutional amendment to authorize issuance by the state of hail insurance was defeated twice in the early part of the 20th century. Initially approved by more than two-thirds of those who cast ballots on the issue, the measures were 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 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. 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.
The constitutional amendment process has also been the subject of judicial rulings. The 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, as 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.
The challenger argued that since the amendment was passed before the state was officially recognized and “the constitution was not yet in force,” the amendment 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.”
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 question 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 proposal, 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 to the contrary.
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 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 fewer than 50 percent of all the voters approved it, under the pre-1898 constitutional provision, it was “properly ratified” since it was approved by a majority who voted on the amendment.
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 (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.”
The court ruled their joint placement on the ballot was not illegal. Since both provisions in the amendment were “rationally related … with the burdens of being a legislator,” they could be combined together, although it would be “preferable” to have them submitted separately. In deference to the legislature regarding matters “properly within its purview,” the court was reluctant to bifurcate the amendment 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 of ratification by about 2 percent.
The court revisited the “single subject” issue in Wass v. Anderson, 312 Minn. 394, 252 N.W.2d 131 (1977), which challenged legislation that incorporated 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 “single subject” 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.” The various taxing and spending measures all had a “logical or 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.” Despite these rulings, the outcome of the case was anticlimactic because the measure 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 changes are the product of the legislature and the will of the people. They do, however, occasionally take detours through the court system. When that occurs, the courts tend to uphold the process and any ensuing constitutional amendments that pass muster with the legislative branch and the voters.
The two amendments slated for the ballot this fall already have rekindled the litigation lore and more is likely to occur.
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 and represents parties in a variety of constitution-related matters. Portions of this article appeared in the February, 2007, edition of Bench & Bar.