Minnesota Voters Alliance files lawsuit against the Secretary of State challenging Rule that allows ineligible persons to vote absentee without first being vetted
On Friday, March 13, 2020, the Minnesota Voters Alliance (MVA) and co-plaintiffs Representatives Eric Lucero, Mary Franson, Duane Quam, and former legislator, Cindy Pugh, filed a lawsuit against the Minnesota Secretary of State Steve Simon. This filing petitions the Minnesota Court of Appeals to stop the Secretary from enforcing an election Rule that directly conflicts with statutory law.
In Minnesota, the state verifies a voter’s eligibility after an election and then marks the person’s voter record as “challenged” if records show the person is a convicted felon still on parole, a non-citizen, or adjudicated to be incompetent, or, if attempts fail to verify the identity of the person. The problem is that Minnesota Rule 8210.0225 requires that all such “challenged” voters who seek absentee ballots (in subsequent elections) be treated as “not-registered” persons. That is, the “challenge” status is ignored.
The Secretary of State’s election procedures, therefore, violate Minnesota statutes that expressly require “vetting” all persons with a challenged status when they apply for absentee ballots.
In recent years, the state has expanded absentee voting to be available to anyone who wishes to use it. A “reason” for not being able to vote in person on election day is no longer required to obtain an absentee ballot. The resulting huge growth in the number of such votes means more and more ballots are filled out away from the oversight of the polling place on election day.
Specifically, Minnesota Rule 8210.0225 says:
“A voter registration application must be sent with the ballot to any ‘challenged’ voter who applies for an absentee ballot. The absentee ballot process must be administered as if the voter was not registered to vote.”
That last part means that if you were identified as an ineligible felon or a non-citizen after you last voted, you can vote absentee with no need to overcome the challenge status. You just start over. Vote again. Get found out to be ineligible. Wait until the next election, unquestioned. Apply for an absentee ballot. Vote again...the sequence is unending.
The simplicity with which this rule abuses any pretense at protecting the ballot box from ineligible persons is seen in the first sentence of the rule: A voter registration application must be sent with the ballot...
The challenged “voter” gets a ballot right off the bat. Never mind that the legislature has created a well-prescribed process whereby the challenged person is engaged face to face by an election judge who notifies the person that the state has reason to believe they are ineligible to vote. The statutory procedure (Minnesota Statute 204C.12) then requires the person to acknowledge the notification and to swear that he or she will truthfully answer questions regarding their eligibility. After satisfactorily asserting that they are eligible, the election judge creates a record of their self-certification, and they are then allowed to receive a ballot.
That entire procedure is bypassed, nullified, voided by Minnesota Rule 8210.0225 under which the challenged person is sent a ballot, no questions asked!
Note that a conviction for voting while ineligible in Minnesota requires the state to prove that the person “knew” they were ineligible. Subverting the statutory challenge process, of course, removes the possibility that the challenged ineligible person will desist from voting, but in addition, by eliminating the notice to the voter that verification tests indicate they may be ineligible, it also virtually eliminates the ability of the county attorney to prove the person knew they were ineligible.
How big a problem is this? Big. Because voting by absentee ballot is being made easier and easier and growing in number. In 2008, approximately 10% (290,000 votes) of the vote was by absentee ballot. In 2016, it was 23% (675,000) and the Office of the Legislative Auditor (OLA) reported that “more than 26,000 persons with a challenged voter record voted in the 2016 state general election." The OLA investigated 612 of those who were marked "challenged-felony", and was only able to conclude that 20 of them were actually eligible.
Here, the Secretary of State has taken it upon himself to undermine the legislature and rewrite the law as he sees fit. There simply is no statutory authority that empowers the Secretary of State to formulate and administer this illegal rule.
Our petition to the Court of Appeals can be Petition to Court of Appeals.
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Andrew E. Cilek
Minnesota Voters Alliance
P.O. Box 4602
St. Paul, MN 55104
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Minnesota Voters Alliance