Nineteen law professors hailing from all four of Minnesota’s law schools filed a brief on Monday defending Secretary of State Mark Ritchie’s title for the anti-gay marriage amendment on the ballot in November.

The title of the amendment was originally “Recognition of marriage” then was passed by the Legislature as “Recognition of marriage solely between one man and one woman.” In late June, Ritchie sent a new title for the amendment to Attorney General Lori Swanson that read, “Limiting the status of marriage to opposite sex couples.”

Ritchie and Swanson maintain that their offices are charged with designating a title under Minnesota statutes and that when Gov. Mark Dayton vetoed the constitutional amendment, he also vetoed the title. The governor can only symbolically veto the amendment, but the title isn’t the actual amendment, the duo have argued.

Republican legislators have filed a lawsuit against Ritchie and Swanson to have the original title restored.

“We swore an oath to uphold the Constitution, and there has been a constitutionally designated question on the ballot,” Sen. Julianne Ortman said at a press conference last week, according to Minnesota Public Radio. “The interference of the secretary of state and the attorney general are out of bounds.”

“Those words are definitely considered negative and misleading, and I believe they’re created to sway the voters,” said Sen. Warren Limmer who was the author of the amendment in the Senate.

But many of Minnesota legal scholars tend to disagree with those Republican lawmakers. In fact, in a brief filed on Monday with the Minnesota Supreme Court, those scholars rejected some of the claims made.

The marriage amendment is only one of three that have been passed through the Legislature with a title:

Consider that, with just three exceptions (two of them this biennium), every single constitutional amendment since 1919 has been drafted by the Legislature for submission to the people without a specified substantive ballot title. This practice strongly suggests that there is, in fact, something materially different about the tide, on the one hand, and the substance of the proposed amendment, on the other. Pedtioners’ claim of exclusive legislative control over all matters the Legislature deems related to a proposed constitutional amendment is inconsistent with more than a century of law and experience.

The scholars argue that Ritchie and Swanson are “well within their proper constitutional and statutory spheres as the state’s chief election and legal officers.”

Given Minnesota’s long-standing practice of entrusting executive officers with the authority to title ballots, it strains the imagination to argue that this titling authority is a “purely” or “exclusively” legislative power that cannot be—and has not been—delegated to, and exercised by, executive officers. The lesson to be learned is this: The Legislature, when attempting to repeal, amend or supersede statutes, cannot evade the otherwise constitutionally mandated process for legislation. Further, the Governor’s authority to approve or veto legislation cannot be defeated merely by passing the bill in a single package along with a proposed amendment. A contrary interpretation would significantly erode the separation of powers at the core of our system of government.

The 19 legal scholars said that the court should let the proposed title stand:

The legal question here is not, of course, whether this particular amendment should be added to the state constitution. The question is also not whether the title preferred by Petitioners is an appropriate one. The question is whether the statutory, historic, and very limited role of two executive officers—chosen by the voters to represent them in their respective capacities as the top election and legal officials in Minnesota—and empowered by a duly enacted and constitutional statute, will continue to be respected and preserved as it has been for almost a century. The Executive Branch’s role here cannot be diminished without a valid change in the statutory and constitutional structure. In this Petition, a small number of individual legislators assert that a vetoed bill—one that did not even purport to amend or repeal the relevant statute—altered the last ninety-three years of consistent statutory and constitutional practice. This Court, as a guardian of our legal traditions and history, should soundly reject such a radical and unfounded violation of our state constitution’s separation of powers.

The 19 law professors hailed from all of Minnesota law schools: University of Minnesota, William Mitchell College of Law, Hamline University and University of St. Thomas.

The law professors signing the brief were Brian Bix, Patricia Byrn, Dale Carpenter, Marie Failinger, Claire Hill, Jonathan Kahn, Daniel S. Kleinberger, Peter Knapp, Mehmet Konar-Steenberg, Raleigh Levine, Brett McDonnell, William McGeveran, Fred Morrison, Mag Jane Morrison, Myron Orfield, Mark Osler, Richard Painter, Ted Sampsell-Jones, and Eileen Scallen.

The full brief can be viewed here: PDF.