Why a fight at the Minnesota Capitol over election security money doesn’t bode well for a productive legislative session

It was supposed to be one of the things that a divided Minnesota Legislature could pass quickly, an example of bipartisan agreement that might be hard to come by as the session progressed.

Instead, the issue known by the acronym HAVA has become just something else for Republicans and the DFL to fight over, even if there doesn’t appear to be obvious partisan or philosophical differences over the issue — not a good sign for the bipartisanship that leaders say they’re striving for.

HAVA stands for the Help America Vote Act, a piece of federal legislation that includes money to boost cyber security — think Russian hacking attacks — for the states. A deal in the Minnesota Legislature to accept the money was agreed to in 2018, but it fell victim to larger battles, as the large omnibus bill it was included in was vetoed by then-Gov. Mark Dayton. This year, it was listed by both Democrats and Republicans as an example of something that could pass quickly as stand-alone legislation.

Yet Minnesota remains the only state in the U.S. that hasn’t accepted the voting security money. And it might be awhile before it does. That’s because the House version accepts all $6.6 million while the latest Senate version accepts only $1.5 million.

The leaders of the two bodies — Minnesota is home to the nation’s only divided legislature — have exchanged strongly worded letters as to why their version of the HAVA bill is the correct version. “We ask for your cooperation in moving this legislation without delay, and without diminishing authorization for the full amount of $6.6 million,” House Speaker Melissa Hortman wrote to Senate Majority Leader Paul Gazelka on Valentine’s Day. “There is no reason to limit access to these funds.”

“SF 241 includes the same non-controversial language that was passed by the Legislature last year and regrettably vetoed by Gov. Dayton,” Gazelka wrote. That bill could come to a Senate vote by next week.

The rest of the money will be cleared as well, eventually, he wrote. “The Senate is committed to authorizing the full $6.6 million this session, but only after a robust public discussion and vetting regarding the use of these one-time funds,” Gazelka wrote. “Minnesota’s voters deserve nothing less when the security of Minnesota’s election system is on the line.”

Gotta HAVA it

The Help America Vote Act directs money to the states to meet nationwide voting standards on voting equipment, registration and access. First adopted in 2002, it is overseen by the Election Assistance Commission, which must certify that states are following the mandates.

Congress added to HAVA following the 2016 election to respond to cybersecurity threats against voting systems from Russian-connected entities, among others. It appropriated $380 million for grants to states to improve security of voting systems, including state voter registration. But because Minnesota is one of five states with laws that require the Legislature to vote to accept this money, Secretary of State Steve Simon must ask for authority to spend the money, what he terms a “permission slip.”

Like a lot of issues in the 2018 session, the permission slip got tied up in the nearly 1,000-page Omnibus Prime bill sent to Dayton by the GOP-controlled Legislature. For reasons completely unrelated to HAVA, Dayton vetoed that bill and Simon did not have any of the money available to install software and security improvements in time for the 2018 election.

HAVA niggling

On Thursday, Gazelka said he is following the lead of his committee chair, Sen. Mary Kiffmeyer, R-Big Lake. She not only chairs the State Government Finance and Policy ad Elections committee, she was secretary of state from 1999 to 2007.

“It’s just a matter of letting the whole thing go through the process,” he said. “We have plenty of time. Frankly if it’s another couple of months for a portion of the resources, I don’t think that that’s gonna impact anything.

“I am allowing the process and my chair to do her due diligence with those resources,” he said.

During a Thursday meeting of the Senate Finance Committee, Simon expressed frustration with the Senate position. Yes, the 2018 HAVA language that was vetoed only authorized $1.5 million, he said. But that was to get through what he said was needed for the 2018 election.

Now he think the entire amount should be freed up so he can catch up to other states that have been installing security upgrades for a year or more. The 5 percent match that Gazelka wrote about can be appropriated in the regular budgeting process later in the session because it doesn’t require the state match up front. That was done so states could get moving quickly, Simon said. And the threat is real, he said: Minnesota rebuffed an attack on its voting systems  in 2016.

Simon said he convened a work group over the summer and fall to make decisions as to how the money would be spent. He submitted a report to the Legislature in December but said he has not heard any concerns or questions from the senators now calling for more oversight. Neither has there been committee hearings to look into how the money would be spent, as Senate GOP leaders say is needed.

“That report has been on Sen. Kiffmeyer’s desk since late December,” he said. “If anyone had a problem or a question or a concern about how we would spend the money, if they thought we overshot the mark or came up short or did too much of something or too little of something or hadn’t consulted the right people, it has been weeks. Not one oversight hearing in the Senate, not one letter, not one text, not one phone call. Not one.”

Simon said the House would act on the full amount Thursday, but “for reasons I’m not sure about yet, the Senate is the hold up.”

In response, Kiffmeyer said she wants to take more time to look at the issue and cites as an example of hasty decisions by many states after the 2000 election and the problems with the Florida’s decision to get rid of paper records of votes and go fully electronic.

“So it is judicious to be careful,” she said. “That oversight in the end will stand us well. My focus is to get this bill done, to get it out the door and tucked away and after that to hold hearings and give it the same Minnesota attention, hearing all those good things, putting it through its paces. Our commitment is to follow up with the rest of the money.”

Before Kiffmeyer’s bill, SF 241, passed the Finance Committee, DFLers on the committee tried and failed on a party line vote to amend it to spend the full $6.6 million available from the feds .

Yet another amendment that was offered, but then withdrawn, hinted at another issue that might be influencing the outcome of the issue. Sen. Torrey Westrom, R-Elbow Lake, tried to amend the bill to require that Simon spend half of the HAVA money to begin instituting a provisional ballot system in Minnesota.

Provisional balloting allows voters whose right to vote or registration status is questioned to still vote; the provisional ballots are set aside and counted only after the questions of eligibility are cleared up. While states are required by HAVA to have provisional balloting, Minnesota and five other states were allowed not to implement it because they already had same-day registration, which meets some of the same goals. Minnesota and two others are the only states that make no use of provisional ballots.

Provisional balloting, however, has become an issue for groups that feel voter fraud is common. One such group is the Minnesota Voters Alliance, which sent a call to action to its members last month. “What you can do: Contact Senate leadership to impress upon them the importance of amending this bill.  Inform them of the reasons provisional ballots are needed and appropriate for inclusion, and demand that they add provisional ballots to the authorizing legislation, or refuse to allocate any of the special funds at all!

“Senate leadership MUST enforce unanimous action by its majority members on election issues. These bills MUST be amended to provide, at least, equal amounts of money for “cyber security” and for implementing a provisional ballot system … If provisional ballots are not added to the bill, then the bill should be rejected in its entirety.”

Kiffmeyer said she supports provisional balloting but opposed the Westrom amendment because she wanted her bill to be clean.

To HAVA or HAVA not

The House version of the bill was one of three brought up for final passage Thursday. Republicans who spoke against the bill said it needed more specificity as to how the money would be spent, rather than letting Simon decide.

Rep. Michael Nelson, DFL-Brooklyn Park, said the money will be spent as the federal law allows — and under strict oversight by the federal government’s Election Assistance Commission. It passed 105-23.

But it’s prospects in the Senate are questionable. Gazelka said Thursday that it could still become an early win, along with bills responding to the opioid crisis, a bill to require hands-free devices for in-car phone calls and what is called the “granny cam” bill which would allow cameras in the rooms of residents of assisted living and nursing homes. But he admits he might have been overly optimistic.

“It has proven to be a little bit more difficult to move some of those things than I thought it would,” Gazelka said.

House Majority Leader Ryan Winkler, DFL-Golden Valley, said he saw no reason why the full appropriation can’t still pass easily and quickly. While the GOP and DFL often argue about election-related bills, this shouldn’t be one of them. “This should be an example this session of work left undone that we can pick up and get done early,” Winkler said on the House floor. “I would urge a green vote and let’s get this job done and go on to fight about other things later on.”