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Amending
the Constitution: History and Hysteria
By Marshall Tanick 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 revenue from 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 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 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 |
