Editor's Note: Prof. Dale Carpenter sent in this note in response to about Minnesota of a title for a constitution amendment on the 2012 ballot that would ban same-sex marriage.
One thing the news outlets have been missing is that it's actually the legal responsibility of the secretary of state, not the legislature, to determine the ballot title.
That has been the case since 1919, when the Secretary of State was given authority to choose an "appropriate title" for amendments passed by the legislature. The idea is that the governmental body that wants the amendment should not be allowed single-handedly to stack the deck in its favor by choosing the title as well.
It's a basic matter of separation of powers. In the case of the marriage amendment, the legislature tried to impose language designed to help pass the amendment. The Secretary of State has now corrected that by choosing one that accurately characterizes the amendment. There was nothing improper about his action. In fact, he had the legal obligation to exercise independent judgment about it.
Carpenter is a noted scholar of constitutional law, the Earl R. Larson professor of Civil Rights and Civil Liberties Law at the University of Minnesota Law School, and the treasurer of Minnesotans United for All Families.