Absentee Ballots Illegally Counted; Laws Changed Without Legislative Approval

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"Those who cast the votes decide nothing; those who count the votes decide everything." Joseph Stalin

November 12, 2020, The Minnesota Voters Alliance (MVA), a nonpartisan organization focused on election integrity and voter education, does not accept the 2020 General Election results as reported by the Minnesota Secretary of State (SOS). (Here is a link to the Statewide Voting Stats as of Nov. 12, 2020)

To be clear, the MVA is not saying there was fraud or irregularities that changed the outcome of a specific race, though the MVA has received scores of reports that point to fraud and irregularities. As evidence warrants it, the MVA will update its post-election reporting on fraud and other voting irregularities. For now, the MVA’s early post-election position is that Election 2020 was not conducted in a lawful manner per Minnesota statutes.

The MVA’s list below points to some of the practices and laws that undermine confidence in the integrity of Minnesota elections.

This list points not only to bad election policies but also to a failure of our election officials to follow election law, good or bad, as written. Most troubling is a blatant re-writing and disregard of election law by our Secretary of State, with the apparent blessing of Gov. Tim Walz and his predecessor Mark Dayton. Simon enables election officials throughout the state through his guidance to ignore black letter law, and in 2020 engaged in pre-election legal settlements that changed election laws for both the primary and general election.

Some of this lawless behavior pre-dates Covid-related policy changes, though the conduct of elections in 2020 brought Minnesota to an all-time low.

We will unpack below one of the major sources of concern: how absentee ballots are administered and ultimately counted. Later this year the MVA will propose a package of reforms to address these systemic weaknesses in Minnesota’s Elections.

Minnesota’s Election Integrity Issues:

  1. Election Day voting policies are an invitation to fraud; lack of voter photo ID; same-day registration; vouching; potential voter intimidation (the elderly, the illiterate); lack of provisional balloting (ineligible voters are allowed to vote; the vote is counted)
  2. 46-days of absentee “early” voting is too long, especially given the need for citizen election judges to staff ballot boards per MN Stat 203B.121 and for citizens to observe the count
  3. DFL Secretary of State unilaterally changed election laws for 2020 via consent decree and legal settlements with activists affiliated with the Democratic National Party. Changes include:
    • - 7-day extension of absentee ballot count to November 10, 2020 (found unconstitutional by the 8th Circuit Ct. of Appeals)
    • - Waiver of postmark requirement for ballots received after 8 p.m. Nov. 3rd deadline (presumed to be postmarked)
    • - Waiver of witness requirement for absentee ballots (for pre-registered absentee voters)
    • Failure to defend state restrictions on voter assistance (ballot harvesting restriction was upheld by MN Supreme Court but all restrictions on language and other assistance was ruled unconstitutional)
  4. Lack of compliance with party balance law for election judges at Election Day precincts
  5. Failure to protect the elderly and other vulnerable residents in care facilities from voter intimidation, fraud and ballot harvesters
  6. Massive shift to less secure voting by absentee ballot (requested by voters) and vote by mail (ballots mailed to registered voters); reliance on USPS (quality issues aside, postal carriers union endorses candidates) and loss of rural precincts
  7. Failure to enforce and meet the party balance requirement for ballot boards under MN Stat. 203B.121 to accept and reject absentee ballots (decide what ballots are counted)
  8. Use of so-called “non-partisan” staff or temporary patronage election staff to accept/reject absentee ballots (decide what votes get counted); conducted behind closed doors
  9. No meaningful access, even hostility, for partisan observers and the public at ballot boards or at the count of absentee ballots
  10. Threats to meahttps://www.sos.state.mn.us/el...ningful access and authority for partisan challengers at the polls on Election Day
  11. Shift to new voting equipment: electronic voter rolls (ePoll books) and vote count tabulators connected to internet: potentially hard-to-detect errors and misuse of technology; voter data security
  12. Acceptance by cities of financial assistance for election activities: non-profits like Mark Zuckerberg’s Center for Tech and Civic Life granted $400 million to progressive cities like Minneapolis to fund and train election personnel, rent polling locations
  13. Lack of full access to Statewide Voter Registration System including challenged voters (felons, non-citizens et. al.) for the public, election judges, ballot boards
  14. No serious effort to investigate and prosecute illegal voters or voter fraud committed by election officials

Battlegrounds States 2020. The key states that will determine the outcome of the 2020 presidential election have brought attention to the outright exclusion of partisan (namely Republican) election judges, lawyers and observers from the count of absentee ballots.

While it may seem counter-intuitive to some, the presence of partisan observers has always insured best practices and integrity because when people from opposing parties are present and working together, they keep one another honest and the process fair.

While Minnesota did not meet the party balance requirement for election judges in precincts across the state on Election Day in 2020, at least that law is part of the election culture and fairly well understood even if is not perfectly followed. 

How big was absentee voting in Minnesota this year? The SOS reports that 3.29 million votes were cast out of a population of 5.68 million people (not all eligible to vote) with more than 1.9 million by absentee ballot. By contrast, in the 2016 general election, 676,722 absentee ballots were accepted.  The SOS estimates the turn-out at 79.96% as of November 12, 2020. 

We have seen some version of this quote attributed to Stalin often in post-Election Day commentary this year: "Those who cast the votes decide nothing; those who count the votes decide everything."

Given the shift from voting in person to voting by absentee ballot even before Covid-related lockdowns, absentee balloting should be the focus of study and reform efforts, along with the perennial invitations to fraud that plague in-person voting on Election Day.

Minneapolis Ballot Board

Absentee Ballot Boards: What Party Balance? What State Law?

Imagine if the Secretary of State decreed that Minnesota no longer needed election judges from each of the major parties to handle Election Day voting.

Instead, he would instruct cities to only use existing city staff, or to hire temporary “non-partisan” staff.

Well, that is exactly what he and his predecessor Mark Ritchie in essence did for regular ballot boards—the official entities that accept and reject absentee ballots even though state law requires partisan or major party balance. That is why the Minneapolis ballot board, and almost every other ballot board in the state, did the work of accepting and rejecting ballots behind closed doors (see photo).

With absentee ballots, the integrity of the count, and our confidence in the result, depends on who is doing the counting.

Minnesota learned that lesson the hard way in 2008 during the recount debacle that put Al Franken in the U.S. Senate by 312 votes. In 2008, so-called “non-partisan” public employees and temporary poll workers handled the count and the recount. It did not inspire confidence or pride.

Minnesota election law was subsequently reformed to require that absentee ballots be processed by ballot boards that meet a “party balance” requirement while allowing for staff to help the process (MN Statute 203B.121). The reform was inspired by the same long-accepted wisdom requiring precincts to be manned by election judges from opposing major parties.

As best as we can tell, the ballot board law has not been enforced since it was passed. The MVA has sued multiple jurisdictions for failing to even try to meet the ballot board party balance law--- and got some great results for the 2020 general election.

Ramsey County, for example, appears to have achieved full party balance. Olmsted made an effort to do so and other counties are now more aware of the requirements for 2022. Some of MVA’s cases are on appeal and others are pending in state district court. (The Republican party filed suit before the election to enforce laws requiring party balance for election judges serving in precincts on Election Day and also over laws governing the public access to the absentee ballot count.)

In Rice County, a citizen training as an election judge asked the lead county official this question: “For the absentee ballots…are you using a [party] balanced board for reviewing….?” The official interrupted and said, “We don’t have to because we are certified by the state. My staff is all deputized; we don’t have to have balance for party.…if I would hire people to come in then I would have to be balanced. But I don’t allow my temp staff to touch the voted ballots, right now they are only touching non-voted ballots. My staff who have sat through 15 hours [of training] is the one that is touching the voted ballots.” (From a recorded transcript.)

Let us translate: Citizens who sign up to serve on ballot boards are only allowed to do unimportant clerical work. They are allowed to open envelopes that have already been accepted for the vote count by paid staff. They are allowed to feed the ballots into a scanner. The really important work of deciding which ballots will be counted is reserved for trusted government-paid staff.

These staffing roles are upside down per Minnesota law.

Where would that Rice County election official get that idea that citizen election judges can be excluded from accepting and rejecting absentee ballots? The Secretary of State, while acknowledging the law, gives administrators the option to use only deputy city or county auditors. And he does it in a rather hard-to-find way. He hides it in his Absentee Voting Administration Guide as Appendix A, a sample resolution for absentee ballot boards. The guide also says, “The board may include deputy county auditors or deputy city clerks who have received training on absentee processing and counting. Deputies are exempt from the party balance requirement.”

The Secretary drives a truck over and through that language to erase the party balance requirement and bar citizen election judges from ballot boards.

Here is the language on page 48 of the Guide—note the use of the disjunctive “or”:

WHEREAS, the Absentee Ballot Board would consist of a sufficient number of election judges as provided in sections 204B.19 to 204B.22 or deputy county auditors trained in the processing and counting of absentee ballots…

In hearings before the Minnesota Senate on October 8, Hennepin County acknowledged the party balance law but testified that election officials were following the Secretary’s lead in excluding citizens judges and ignoring party balance.

It is MVA’s position that the accepting and rejecting of absentee ballots must be conducted by a ballot board that meets the party balance rule; city or county deputies can, of course, act as support staff as they did in Ramsey County this year, but they may not properly accept or reject ballots. In other words, Sec. Simon has “guided” election officials across the state to ignore the law.

Here is how one member of the MVA summed up this serious breach in election integrity:

Whether they be deputy auditors or partisan election judges, everyone is supposed to swear to carry out their election responsibilities in an impartial manner. However, having balanced teams of partisan election judges serves as another check on the system, and also provides more transparency to the process than when everything is done internally by county or city staff. We are asked to believe that county and city election workers are better able to be "nonpartisan" than ordinary citizens. I don't buy it. Look at the public employee unions. Also, if someone is working as a deputy auditor, who has been appointed by the county auditor, who in turn has been appointed by the county board, would there not be an incentive to help people on the county board that are on friendly terms with the auditor stay in office? That's why it shouldn't all be internal staff.

The State Canvassing Board meets on November 24, 2020 to certify the official results report for the November 3, 2020 State General Election.

Again, the Minnesota Voters Alliance (MVA) does not accept the 2020 General Election results. The MVA’s position is that Election 2020 was not conducted in a lawful manner per Minnesota statutes. Among other serious problems, the breach of trust with regard to ballot boards was egregious and the Secretary’s unilateral changes to election law via consent decree usurped the authority of the Legislature.

The MVA is calling for a full review of election 2020 by the Legislature and the Office of Legislative Auditor. This review must begin in earnest now if it is to have any effect for 2022 and beyond.

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