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The rules around Minnesota’s 2020 presidential primary are setting up a potential legal fight over voter information

Secretary of State Steve Simon’s interpretation of the law governing Minnesota’s new presidential primary means two pro-marijuana parties will get the same information about DFL and GOP voters as the DFL and Minnesota GOP do. 

MinnPost photo by Corey Anderson
The guidelines posted Thursday are mostly devoted to the nitty-gritty of election administration: ballot design, polling place organization and vote counting.
Guidelines for the state’s new presidential nomination convention were posted by the Minnesota Secretary of State Thursday — and the chair of the state DFL party might not be too happy about them. 

It’s not that Minnesota Democrats aren’t supportive of holding a presidential primary. The DFL, like Republican Party of Minnesota, was part of negotiations for how to implement a primary to replace precinct caucuses as the means of divvying up delegates for the national parties’ 2020 nominating conventions.

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In fact, the DFL prevailed in a dispute over the voter file: the valuable lists detailing which party individual voters chose when requesting ballots. Those lists are now exempt from public disclosure, though state law requires that the DFL will get both the list of their voters and the list of voters who chose a Republican ballot. The Minnesota GOP will get the same information.

So what the DFL’s problem? 

Secretary of State Steve Simon’s interpretation of the law passed by legislators in May means that Minnesota’s newest major parties, the Grassroots-Legalize Cannabis Party and the Legal Marijuana Now Party, will get the same lists, even if they don’t hold presidential primaries on March 3, 2020. The DFL is worried that the lists — with the names of hundreds of thousands of DFL and DFL-leaning voters — will help the two pro-marijuana legalization parties skim votes from Democratic candidates in the 2020 general election.

A DFL spokesperson said Chair Ken Martin is not prepared to comment on the long-expected rules, but in June he told MinnPost: “We have a different reading of the statute than Secretary Simon’s office, and we believe the statute is clear that you have to participate in the presidential primary to receive a copy of another party’s list. It could potentially open them up to a lawsuit.”

Simon says: ‘I don’t see how it could be much clearer’

Simon said Thursday that he thinks the law is clear and that his lawyers and staff are comfortable with the interpretation contained in the guidelines for elections officials. According to Simon, the statute says, “The secretary of state must maintain a list of the voters who voted in a presidential nomination primary and the political party each voter selected: Information maintained on the list is private data on individuals …  except that the secretary of state must provide the list to the chair of each major political party.”

The designation of what constitutes a “major political party” is critical. After receiving at least five percent in races for statewide offices — a threshold reached by both Grassroots-Legalize Cannabis attorney general candidate Noah Johnson and Legal Marijuana Now auditor candidate Michael Ford in the 2018 general election — the two pro-pot parties joined the GOP and DFL as “major” parties under Minnesota law.

Secretary of State Steve Simon
MinnPost photo by Bill Kelley
Secretary of State Steve Simon said Thursday that he thinks the law is clear and that his lawyers and staff are comfortable with the interpretation contained in the guidelines for elections officials.
“I don’t see how it could be much clearer,” Simon said. “We are instructed by the Legislature to hand over the list to all major political parties, regardless of whether they participate in the presidential nomination primary. Until a court tells us otherwise, that is what we’re prepared to do.” 

Simon acknowledged that a legal argument could be made based on a section of law that says the statute applies only to major political parties that selects delegates at a “presidential nomination primary to send to a national convention” and that “a major political party that does not participate in a national convention is not eligible to participate in the presidential nomination primary.”

Martin has pointed to that section to back up his position that the marijuana parties aren’t national in scope and are unlikely to have a national nominating convention. But Simon said that the part of the law only creates the legal threshold for which major parties can have candidates on the presidential primary ballot; that it is unrelated to the language about the voter lists.

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In August, Simon met with the chairs of all four major parties to discuss a variety of issues. The meeting did touch on the distribution of the presidential primary list, and Martin reiterated his disagreement with the secretary of state’s reading of the new law, Simon said.

“Maybe there’s some way we can resolve it short of a legal conflict,” he said. “We’re working on that.” 

A public process … for the benefit of private parties 

The issue took a circuitous path through the Minnesota Legislature. After a particularly chaotic, though well-attended, set of party caucuses in 2016, lawmakers and party officials thought the time had come for the state to join others that use a primary election to distribute delegates.

However, morphing what had been a private process run by the parties into a primary run by the state — with state dollars — brought complications. Minnesota voters have grown accustomed to a high-level of privacy not common in other states. Voters don’t have to put down a party preference when registering to vote, and they can take part in partisan primaries in August without revealing which party ballot they used to cast votes.

But the national Democratic and Republican parties have insisted that states have some way of making sure that only Democrats take part in the Democratic presidential process and only Republicans take part in theirs. 

In the case of the new Minnesota primary, that stipulation will be satisfied by a requirement that each voter signs a pledge when requesting a ballot: “I am in general agreement with the principles of the party for whose candidate I intend to vote.”

That choice is also recorded, though the list will only reveal the party selected by a voter, not the individual candidate they choose. That will remain secret. But there are few restrictions on what the parties can do with the lists, and they will very likely help the parties build databases for voter outreach, including calling, mailing and door-knocking since the lists identify people who are inclined to vote — and give money.

According to the new guidelines: “The major parties do not have any restrictions as to how they will use that information other than what is already prescribed by current laws (campaign, election administration and/or law enforcement purposes).” 

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Under the old law, Minnesota did not exempt party preference information from disclosure under the state Data Practices Act. But Simon said he feared having such information from a presidential primary made public would discourage participation, so he proposed having all lists exempt from the DPA. Only after the parties threatened to abandon the idea of holding a presidential primary did Simon acquiesce to letting party chairs get lists of voter’s party preference, a right the general public would be denied. 

Initially, Simon proposed that the DFL get only its voter list and the GOP get only its list. But the Minnesota GOP and its allies in the legislature disagreed, wanting both lists as a means of making sure known DFLers weren’t taking part in the GOP process, perhaps to do mischief.

So state law now has the quirk of making data collected by public entities not available to the general public … while making the same publicly collected data available to a very specific group of private entities: political parties. 

The surprising success of the two marijuana parties in the 2018 election tossed yet another complication into the mix, with the DFL now concerned that the two new parties might siphon votes from DFL candidates, something that could change the result in close legislative and congressional races next year.

The guidelines posted Thursday are mostly devoted to the nitty-gritty of election administration: ballot design, polling place organization and vote counting. But they also reveal concerns by Simon that the presidential primary will be different enough for many voters and cause confusion.

The posting includes advice for poll workers for dealing with questions but also makes clear that voters who refuse to sign in, pick a party and vote knowing their party choice will be provided to the parties will not be allowed to take part.

“Because of the requirement to voice a major party ballot choice, there is an expectation that there could be a larger number of voters who, even though they meet all eligibility requirements to vote in a state election, will be refused the presidential nomination ballot because of the additional requirement,” the guidelines states. “The election judge guide supplement developed for use at the presidential nomination primary will provide suggestions for steps in responding to concerns, refusals and potential disruptive behavior in the poll place on Election Day.”