The problem with unwritten rules is they are even more prone to differences in interpretation than written ones. They are even subject to being rewritten by new governors.
Such is the case with the oft-quoted rule around the Minnesota Legislature: that any changes to state election law must be bipartisan. According to lore, the rule was first handed down by the state’s Independence Party Gov. Jesse Ventura and followed by his Republican successor Tim Pawlenty and his DFL successor Mark Dayton.
The reasons are at least twofold, according to Capitol tradition. The first is that elections are so important — and fairness such an important factor in them — that changes must be done only to benefit the body politic and not one party. The second is that letting a party in power alter the laws to help one group of candidates, putting a thumb on the metaphorical scale, would lead to a partisan arms race.
To some, the law means bipartisan agreement at every step; that the minority party must be on board starting at the committee level. To others, the tradition could be satisfied by, say, a bill passing a DFL-controlled House and a GOP-controlled Senate before it reaches the governor. After all, passing both chambers likely means the most-controversial sections will be wrung out in House-Senate conference committee meetings.
Yet the tradition also means that, as is the case this year, it’s likely that nothing passes, since the GOP controlled Senate has zero election law changes in that chamber’s state government omnibus bill.
Even so, the ranking Republican on the House elections subcommittee said a bill passed Tuesday night by the House violates the rule, since the changes weren’t bipartisan.
“A lot of it is hyper-partisan,” said Rep. Jim Nash, R-Waconia, the ranking Republican on the House elections subcommittee. “For the last 20 years, election bills have been non-partisan or bipartisan. Under Govs. Ventura, Pawlenty and Dayton, the expectation has been that the elections bill will be completely and utterly nonpartisan.”
Bipartisan faith in elections contributes to the state’s often top-in-the-nation turnout, Nash argued, and during floor debate Tuesday Rep. Tony Albright, R-Prior Lake, dubbed the bill “DOA” in the Senate.
Nash said that while controversial changes can be introduced and debated, they need to be in stand-alone bills and not part of the comprehensive package of election law changes supported by both parties. That way, lawmakers can vote on the items up or down without worrying about losing needed updates in the election package, he said.
Rep. Ray Dehn, the Minneapolis DFLer who is chair of the House elections subcommittee, said many aspects of the election package do have bipartisan support, and some were even GOP proposals. Even moves to restore voting rights to former felons, for example, has had GOP sponsorship in the past, Dehn said.
“We can talk about these issues being partisan, but it is because we present them as partisan,” he said. “I have approached my work on the committee in this session with understanding that we have a DFL majority in the House and a Republican majority in the Senate and any bill that gets to the governor will have to get through both bodies. Thus, I would say that it’s a bipartisan bill.”
But while Dehn recognizes the usefulness of having both parties support changes, he said that expectation could also be used to block issues that voters want to see happen. “For 20 years, we have ignored some changes to some provisions around our elections for the sake of not doing anything controversial,” Dehn said.
The result, he said, were what he dubbed “Kumbaya” bills. “If you have to have agreement from both sides, you’re not going to be doing the things that voters in the state have asked for — like automatic voter registration,” he said.
Ken Martin, the chair of the DFL, has echoed that argument. He has urged Walz to not make a pledge similar to that made by Dayton regarding election law changes, saying it prevents needed changes and — in an era of political polarization — means nothing of substance can ever pass. “It’s an antiquated and nostalgic idea when you have on one side people who don’t want any change,” Martin said.
Walz himself didn’t exactly offer an ironclad commitment to the unwritten rule when he wrote a letter to Nash in March. In the message, the DFL governor called secure and fair elections “critically important to our democracy,” and said it’s vital “to ensure all eligible voters are able to exercise their right to vote and have their voices heard.”
Instead, Walz endorsed the Dehn definition of what bipartisanship would look like with the House and Senate in different party control. But he was also noncommittal as to how he would view any bills that reach his desk this session.
“As legislation moves forward, I will continue to evaluate all bills on their merits and consider stakeholder input before making decisions,” Walz wrote. “At this time, I am not making a commitment on potential parameters I will set out for signing a bill into law without having all the details about a given proposal and having a conversation with Minnesotans about how legislation is going to impact them.”
The unwritten rule — and its various interpretations — were center stage Tuesday when the House debated the omnibus state government finance bill, House File 1935, that has been expanded to include elections law changes. Several dozen bills that were heard in the elections subcommittee — some routine, many controversial — were included in bill, which ended up passing 73-58. Among them:
- Restore the vote: Minnesotans who have been released from prison or jail would have their right to vote restored. Currently, those same former felons could seek restoration only after their period of probation has also expired (a change in the Public Safety omnibus bill would also set a cap on most probation periods at five years).
- Motor Voter expansion: Residents can already register to vote at the same time they apply for a driver’s license, though they must opt in. This change would automatically register new drivers unless they ask not to be included on the voter rolls.
- Ranked Choice Voting: this change would allow non-charter cities to move to the system that ends primaries and lets voters rank candidates in general elections. The system is currently used in Minneapolis, St. Paul and St. Louis Park, though those are charter cities that went through charter amendment processes to adopt the system.
- Electioneering communication/express advocacy: The bill expands the list of campaign expenditures that must be reported the state Campaign Finance Board. It would end the requirement that reportable messages use the so-called “magic word” of “vote for” or “vote against.” It also would expand the definition of reportable electioneering communications to include material that refers to a “clearly identifiable candidate,” is sent out near an election and targeted at the electorate making decisions on that candidate.
- Redistricting Commission: Under the bill, a panel of retired judges and members of the public would follow standards to redraw congressional and legislative districts following each Census. The maps would be presented to the Legislature for approval. (A separate bill would place a constitutional amendment on the ballot so that the commission would have the power to draw lines without legislative approval).
- Hennepin election reporting: would require that state-registered political committees that get involved in Hennepin County and Minneapolis election report their activity to the county during the election year in question.
- HAVA: The bill releases all $6.6 million in federal grants to the secretary of state to implement an election cyber-security plan that came in response to attempt in 2016 to hack into state election systems. The GOP Senate, however, has blocked release of the entire amount, instead voting to send just $1.5 million to the state elections administration.
- Voting assistance: the bill ends the current restriction on the number of voters a single person can help in the voting booth. Under current law, a person can help just three other voters who might need help with language interpretation or ballot marking. This became an issue when St. Paul Council Member Dai Thao was charged with a crime when he helped more than three Hmong elders vote. Under the proposal, candidates like Thao would still be prevented from helping voters.
- Presidential primary voter lists: Currently, the list of those who voted in presidential primaries, including the political party they selected, is a matter of public record. The change requested by Secretary of State Steve Simon would exempt party preference information from the state Data Practices Act. It would, however, require he provide a list of DFL voters to the state DFL and a list of GOP voters to the state Republican party.
- Free bus rides: The bill would require large public transit systems to provide free transportation to voters on Election Day.
- National Popular Vote. The bill would require Minnesota to join a national compact that would pledge all of a state’s Electoral College votes to whichever candidate wins the most vote nationally, not the candidate who won any given state. It would kick in only after agreement from enough states to equal 270 electoral votes.