The November Elections and Election Law in Minnesota

The November 3rd election left many Minnesota conservative Republican activists dazed and confused. Part of that feeling was the disappointment they felt in the many losses suffered on that day. There were unexpected losses from the top of the ticket to the bottom, in state house and senate seats that seemed like they were on a glide path to victory.  Unpleasant surprises are nothing new in politics, and seasoned activists recognize that feeling. But what was confusing were the abrupt changes in Minnesota's already extremely permissive election laws and rules, months before the November election. 

Until this year, Minnesota's election laws were determined by the tug of war between a divided legislature and the partisan DFL Secretary of State, Steve Simon. Simon wanted to change Minnesota's election laws before the COVID-19 epidemic. He wanted to expand mail –only ballots to more of the state.  Minnesota has had a mail only option since 1987 for portions of the state, usually rural areas, where the expense of mounting Election Day polling was burdensome with far-flung residents. Simon's office began working with counties to make sure they understood that this option was available, and the local government associations sold it as a way to deal with COVID precautions. They already had concerns about a reduced number of volunteer election workers and more costs than usual. Unsurprisingly, many more counties and towns took this option, increasing the number of mail-only precincts from about one-quarter of all precincts in 2018 to a third in 2020.

Marc Elias and Democracy Docket

In addition to increasing the number of mail only precincts and promoting the use of absentee ballots, SOS Steve Simon wanted to loosen the rules surrounding these ballots. In this, he was following a national trend among Democrat Secretaries of State, which is openly campaigned for on the website Democracy Docket, run by nationally known Democrat Election and Campaigns lawyer Marc Elias. In Minnesota, Marc Elias is probably best known as the head of the DNC legal team that policed the infamously long Coleman – Franken recount in 2008. Coleman narrowly won on Election Day but lost after more of his ballots were discounted.

Democracy Docket supported legal teams in every state that did not have all four of the following items already in their election law regarding absentee ballots

  1. Free Postage. Ballots must be postage free on return
  2. Ballot harvesting – Allowing individuals and organizations to freely scoop up absentee ballots from voters and deliver them to the election offices or polls.
  3. No witness signatures and no signature challenges allowed – Many states require that a ballot be witnessed by someone other than the voter and that the witness's address be noted. Some states require that voters' signatures be compared with signatures on file in the poll book as an identity check.
  4. Ballots should not have to be in by Election Day, they only have to be postmarked by Election Day.

As previously noted, Minnesota's election laws were already fairly permissive and this extended to Absentee ballots. No excuse absentee ballots were passed by a Republican led legislature in 2014 and postage is free. Simon appeared before House and Senate committees in the 2020 session and warned if they did not pass legislation forgoing witness signatures and removing caps on the number of absentee ballots an "agent" could deliver, they would face lawsuits. Simon also wanted to remove the cap on the number of people a single person could assist at the polls. These laws had been put in place to prevent the corrupt practice of organizers pressuring the elderly or others who received absentee ballots. Since an "assister" can stand beside the voter as they vote, this is also an opportunity for coercion.  These laws were meant to allow family or friends as "agents" or "assistants," not people working for outside groups who might be total strangers.

Court Action

After the Secretary of State failed to get what he wanted through the Minnesota Senate (the DFL House and Governor agreeing with him), lawsuits along the lines of the Democracy Docket "four pillars" showed up in Minnesota, challenging Minnesota election law.  

Ballot Harvesting and Assisting at the polls. The Democratic Congressional and Senate Campaign  Committees filed suit on January 17, 2020, to allow an unlimited number of people to assist voters at the polls and for an "agent" to return an unlimited number of absentee ballots to the elections office. (aka "ballot harvesting") Hearings were held on April 29 and August 8.

On July 28, Judge Thomas Gilligan issued an order that said that those parts of statute 203B.07 were not enforceable. On August 11, Judge Gilligan issued a denial of the GOP's request for a stay of the injunction against the statute's enforcement. That meant that a single agent could return an unlimited number of ballots for the primary.

On August 27, a settlement gave the Republicans half of what they wanted. They allowed agents to assist an unlimited number of people at the polls but not to assisting and returning an unlimited number of absentee ballots. The limit for returning absentee ballots was returned to the statutory limit of 3 per agent.

Witness signatures and Ballot deadlines. Plaintiffs LaRose, Maples, Sansom, Severson, and the MN Alliance for Retired Americans Educational Fund along with the NAACP filed suit to get the witness requirement lifted and all ballots postmarked by Election Day counted even if they arrived after Nov.3. 

On June 16, the Judge issued a stipulation and partial consent decree that granted several points of the plaintiffs. Basically, Simon and the plaintiffs agreed to a settlement that included no witnesses required on Absentee ballots, and ballots received by the election office within two days of the primary or seven days of the general election will be counted if they are postmarked by Election Day.

On June 18, MNGOP, the National Republican Committee, and the Trump Campaign intervened and challenged the consent decree. The Republicans did not challenge the witness signature item because the US Supreme court had recently ruled against plaintiffs in a Rhode Island case.  On Election day, the postmark issue was still at issue, so ballots that were postmarked but arrived after election day were segregated.

Liban and the Trunk Full of Ballots

To see ballot harvesting in action, you have only to look at Project Veritas's videos about a Minneapolis ballot harvesting operation. Note: Liban, with the trunk full of absentee ballots, may have been perfectly legal under the court order that was in effect during the August 11 primary. After the RNC, MNGOP, and Trump campaign's successful challenge, collecting more than 3 absentee ballots would have been illegal during the November General Election when the cap returned to 3 absentee ballots per agent.

Post-Election Activism

After the November election, a group of activists , candidates, and lawmakers shared information about what they saw on election night. They decided to file a legal petition to try to postpone the certification of the election and collected witness statements, affidavits, and other information to report these irregularities. They filed their petition to the Minnesota Supreme Court but were unable to serve it in person before Simon certified the election. The plaintiffs served him by e-service, but he did not acknowledge the service. Any good process server will recognize this dodge, but in this case, the delay was fatal to the success of the petition. 

Here is a copy of the filing, including over one hundred pages of exhibits with irregularities noted. 

Here is their accompanying press release.

Reps Drazkowski, Miller, and Munson signed on to the petition. They had worked alongside many of these activists in their districts.  Rep. Drazkowski had previously worked tirelessly on election integrity issues, helping to bring Project Veritas to Minnesota to observe the ballot harvesting taking place in Minneapolis during the primary.

Here was the statement they released:

Today, we are joining elected legislators and candidates in filing a lawsuit against Secretary of State Steve Simon. Throughout 2020, Secretary Simon illegally altered Minnesota's election laws. His office issued unlawful consent decrees that greatly affected the rules that govern absentee ballots and who can assist people at the polls. To circumvent the Minnesota Legislature and unilaterally change election law is entirely unconstitutional. This abuse of power must be addressed. 

The Equal Protection Clause of the Fourteenth Amendment guarantees that every vote must be treated equally. The Supreme Court affirmed this in their decision of Bush v. Gore. Secretary Simon's haphazard rule changes resulted in absentee votes being treated differently from county to county. As such, we are requesting that the certification of this election be suspended until these issues can be addressed in a lawful manner.

Secretary Simon's manipulation of state law caused election rules to vary every month. This created great confusion and inconsistency for many voters. Moreover, Simon issued his unlawful consent decrees in consultation with Democratic, nonprofit organizations. Contrary to Steve Simon's beliefs, only the Minnesota Legislature has the power to change election law. The Secretary's refusal to adhere to constitutional principles is an affront to free and fair elections. We intend to fix this mess."  

It appears to be an article of faith of the DFL party that no restriction of any kind should be placed upon a voter casting a ballot. That no burden, not proof of identity, nor residence nor citizenship, nor having voted previously should deter someone from casting a ballot in any instance. Same-day registration permits someone to come in with another voter to vouch for their ability to vote. All checks of the same-day registration affidavit occur after the election is over. Minnesota does not have provisional ballots. The secretary of state declines to reveal how many post-election verification postcards are "returned to sender," and even if revealed, he would probably try to claim that they all happened to move since Election Day and did not leave forwarding addresses. Activists will continue to cry fraud, and Simon will continue to claim, there is no proof.