Regardless of who wins Tuesday’s vote on Minnesota's marriage amendment, this likely won't be the last voters will hear of the issue.
Recount A Possibility
If the final vote tallies are close, expect a recount, said Raleigh Levine, an election law professor at St. Paul's William Mitchell College of Law. Election results won't be announced for several hours, but political parties on both sides seem to be lawyering up in case any one race requires a recount, but according to Minnpost, the main group opposing the amendment has also retained an election lawyer.
Still, Levine said, don't expect a repeat of the 2008 battle between Sen. Al Franken and then-Sen. Norm Coleman unless one side's margin of victory is only a few hundred votes. The last two recounts in Minnesota, she said, show that the process changes the final vote tally by only a small amount.
"I could see it happening if the margin of victory of the 'No' side is achieved through 'skipped votes,' votes left blank," said Dale Carpenter, a University of Minnesota constitutional law professor and an activist with amendment opponents Minnesotans United for All Families. "The 'Yes' campaign might want to look to see if people improperly filled in a 'Yes' bubble."
A blank vote on a state constitutional amendment counts as a "No" vote under state law.
Amendment Could Run Again
For amendment supporters, the results of state legislative elections could determine their course of action if the proposed constitutional same-sex marriage ban fails. If the DFL is able to regain control of either the House of Representatives or the Senate, it would be impossible to get a similar amendment placed on the ballot again until the next election. All constitutional amendments in Minnesota must first pass both houses of the legislature.
Amendment proponents Minnesota for Marriage did not return multiple phone calls for this story, but have managed to raise over $5 million this year to push the marriage amendment. LGBT activists are bullish on their chances of preventing a re-run if the amendment fails tonight.
"Many people believe the Democrats are going to take at least one chamber back. There will be no further amendment discussion if that's the case," said Phil Duran, legal director of OutFront Minnesota, the state's largest LGBT rights group. "An amendment defeat would send a message to the legislature."
Lawsuits Not Likely
If the amendment passes, a logical next step for same-sex marriage advocates could be a federal lawsuit seeking to have the amendment declared constitutional, Carpenter told Patch.
Currently, there are several federal lawsuits arguing in favor of same-sex marriage that could be heard by the United States Supreme Court in the next year or two, Carpenter said. Among these is Perry vs. Schwarzenegger, a challenge to the constitutionality of California's Proposition 8. If the court takes one of these cases and its decision is broad enough, the entire issue becomes moot.
Same-sex marriage supporters could decide to file a lawsuit of their own, Carpenter said, specifically challenging Minnesota's amendment.
That outcome, though is unlikely to happen, Duran said, because activists are worried the current Supreme Court could be hostile to same-sex marriage.
"(OutFront) has given that sort of thing some thought," he said. "Folks on our side who know the issues and know the courts are strongly discouraging that based on their knowledge of the courts, at least for now."
That could change, he said, if a strongly conservative justice like Antonin Scalia retires and is replaced by a more liberal figure.