The following article by Briana Bierschbach was posted on the MinnPost site July 12, 2017:
It’s a simple formula: One-party controlled of the Minnesota Legislature + a governor of the opposing party = constitutional amendments on the ballot.
That’s been the case over the last two decades in Minnesota, where gridlock between the legislative and executive branches has prompted lawmakers to take issues directly to voters time and time again — on everything from increasing taxes for arts and conservation to imposing more restrictive voter identification laws.
As lawmakers look to the next election, all the ingredients are in place to see more of the same: Republicans in control the House and Senate have been butting heads all year with DFL Gov. Mark Dayton, and legislators of both parties have already teed up a handful of issues that could be on the ballot as constitutional amendments in 2018.
“I would say that I’m always open to constitutional amendments,” Republican Senate Majority Leader Paul Gazelka said. “If you look back in state history, we’ve averaged about one or two a year.”
Gazelka said he’s sensing momentum around one possible amendment in particular: To ask voters if they want to dedicate sales taxes collected from motor vehicle repairs and maintenance specifically to pay for road and bridge construction. “What we are trying to figure out is what we want to do, when we accomplished so much this year,” he said. “We did tax relief; we did transportation; we passed a budget. So we are trying to develop where we are going to go next. Constitutional amendments are a part of that.”
From marijuana to data privacy
The use of constitutional amendments is as old as Minnesota itself: In 1858, the Legislature put a measure on the ballot asking voters if they wanted to establish a state government. Since then, more than 200 proposed constitutional amendments have been voted on by the electorate, and more than 120 of them have been adopted.
Those measures have run the gamut, from one that decided the current structure of state government to an amendment establishing how to amend the state’s Constitution. Some of the most pivotal moments in the nation’s history also played out in Minnesota through constitutional amendments, from black suffrage to Prohibition.
Lawmakers only need a simple majority of votes in the House and Senate to put an amendment on the ballot, and this year alone legislators introduced nine constitutional amendments in the House and 13 in the Senate.
Many of those were introduced by Democrats in the minority, who know they face an uphill battle in getting approved by the Republican majority. Even so, DFL legislators have introduced amendments that, among other things, include gender equality in the state’s Constitution; create a unicameral legislature; and legalize marijuana for people over 21.
Rep. Tina Liebling, DFL-Rochester, offered one of several amendments to legalize recreational marijuana in Minnesota, saying other states were able to do this through a popular referendum. Since Minnesota isn’t a referendum state, a constitutional amendment seems like the best way to give the voters a chance to weigh in on the issue, she said. But first, those voters need to contact their legislators to convince them to put it on the ballot.
“Certainly, a lot of Democrats are interested in this and my feeling is a lot of people in the state are interested in this,” said Liebling, who is also running for governor. “It will be a matter of people putting pressure on their legislators and contacting them about it. You saw that with Sunday liquor sales this session. You have to get the ball rolling. People have to start going on record.”
Rep. Eric Lucero, R-Dayton, said he wants to see a similar grassroots lobbying campaign behind his proposed ballot initiative, which would bolster protections of citizens’ electronic communications and data from “unreasonable searches and seizures.” With increasingly large amounts of personal information stored online instead of in physical records, Lucero said, such data needs to be clearly protected in the constitution.
“It’s simply making sure that information, regardless of its form, has equal protection under the 4th Amendment,” said Lucero, who has worked in cyber security for the last 15 years. “What I have found is that issues of digital privacy are absolutely not partisan.”
A ‘common sense’ amendment
The amendment that’s gotten the most attention from the Legislature’s Republican leadership would dedicate sales taxes from auto part repairs and maintenance to roads and bridges.
The idea came out of last session’s budget debate, which included a $300 million transportation bill that shifted those taxes from the state’s general fund into a fund for roads and bridges. Without having a dedicating funding source for transportation designated in the Constitution, future legislatures could simply shift the money around to pay for other priorities.
A similar issue came up in 2006, when lawmakers asked voters if they wanted to dedicate the sales tax on purchasing a new car toward roads, bridges and public transit. Voters overwhelmingly approved the amendment.
“When it’s a statute, a future legislature could decide to take that money and go somewhere else with it,” said Sen. Mary Kiffmeyer, chair of the Senate State Government Finance Committee, which would hear constitutional amendment bills. “If we do it in a constitutional amendment, it protects it and make sure it stays there.”
Rep. Jeff Howe, R-Rockville, introduced the amendment in the House years ago, but he hasn’t seen in gain any traction until more recently. That’s despite some pushback from Dayton last session about moving general fund dollars away from things like education and healthcare to put them toward transportation.
“There are some lawmakers that don’t want to dedicate [the tax money] because it moves it just to transportation,” Howe said. “This is, to me, the common sense source of revenue for transportation. It’s directly tied to it.”
Amending amendments
For some, memories are still fresh from the last time Republicans had complete control of the Legislature and put two controversial amendments on the ballot: One to require photo identification to vote, and another that would have enshrined a ban on gay marriage in Minnesota’s constitution.
The two amendments were the most contentious in recent state history, and led to massive grassroots campaigns opposing the measures. They also drove millions of Minnesotans to the polls to cast votes on the amendments, both of which were ultimately defeated.
Gazelka said he doesn’t anticipate any high-profile issues that don’t have broad bipartisan support to go on the ballot. That includes a right-to-work amendment similar to the ones passed in several southern states last fall. “I don’t think right to work will happen, unless it happens at the federal level,” said Gazelka, who was a co-sponsor of the gay marriage amendment in 2011.
“We are not looking at that one.”
But even the fear of more controversial constitutional amendments caused another one to crop up this session. Rep. Clark Johnson, DFL-North Mankato, introduced an amendment that would require the governor to approve a constitutional amendment before it could go on the ballot. His proposal would still give the Legislature the chance to override the governor’s veto, much like they can a regular gubernatorial veto.
“I don’t like legislating via constitutional amendment in order to avoid a governor’s veto or not in dealing with the governor,” Johnson said. “It’s a checks and balances thing.”
Currently, though the Legislature needs only a simple majority to put a question on the ballot, a proposed amendment needs to be approved by a majority of all people voting in the election — not just those who actually vote on the question itself — to pass.
Johnson’s not the only one who’s tried to change the requirements for amending the Constitution over the years. In 1913 and 1915, legislators asked voters if they wanted to be able to petition for changes to the constitution themselves, which would have made Minnesota a referendum state. Voters rejected that idea both times. They also rejected the idea of creating a special constitutional commission to review amendments before they go on the ballot.
Johnson knows his amendment will be a tough sell to legislators this year. “The problem with it is legislators would be electing to give up power from the legislative branch. I understand that,” Johnson said. “But for me, this is less about power and more about Minnesota.”
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