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Does the Minnesota secretary of state get to decide what information about voters is public?

That’s the question at the heart of a case now before the Minnesota Supreme Court. 

Secretary of State Steve Simon
MinnPost photo by Bill Kelley
Secretary of State Steve Simon: “I will use all legal means to protect the privacy rights of voters.”
The arguments made in the case before the Minnesota Supreme Court earlier this week were often technical or about the definitions of terms: which parts of state law control the release of voter data; what does “public” information mean when it comes to voters; what about the “master” voter list versus the “corrected” one.

But the fundamental argument in Cilek v. Minnesota Secretary of State is far less arcane. The court must decide whether the state, at its discretion, can prevent access to certain kinds of information about voters that could be used by a private group to investigate voter fraud.

Andrew Cilek, who runs the Minnesota Voters Alliance, believes that illegal voting was common in 2016 but not investigated by the state or county attorneys. To prove it, he sought state data that would show which voters were registered, information that also includes a voter’s birth year, address, phone number and voting history, as well as the status of his or her voter registration and reasons for any challenges to their status. 

Secretary of State Steve Simon initially produced some of the information Cilek sought, but said he had discretion to prevent release of additional data, including the names of what are called inactive voters — those who are no longer eligible perhaps because they had been convicted of a felony or had died or whose status had been challenged. That information, Simon maintained, would violate the privacy of voters. 

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Cilek sued and won at both the district court level and at the Minnesota Court of Appeals, so Simon took the case to the state Supreme Court, which heard oral arguments on the case Tuesday.

“I will use all legal means to protect the privacy rights of voters,” Simon said in a statement after the appeals court ruling. “I trust law enforcement and county attorneys who investigate and prosecute the few actual cases of ineligible voting in Minnesota,” adding that private investigations such as that contemplated by Cilek “call into question or seek to suppress the votes of thousands of eligible voters.”

The heart of the case, however, questions whether Simon has legal authority to do what he did — regardless of his motives. It is the second of two major legal battles between Cilek’s organization and Simon, the first being the U.S. Supreme Court’s 7-2 ruling last year in Voters Alliance v. Mansky, which found state law controlling political activity in polling places was overbroad in restricting clothing with political messages.

A case that affects ‘every registered voter in Minnesota’

“Today, on this election day, the court is hearing argument on a significant issue that affects the privacy rights of every registered voter in Minnesota,” said Christopher Kaisershot, an assistant attorney general who argued on behalf of the state. 

The court, he said, was being asked to decide whether the presumption of openness under the state Data Practices Act — the Minnesota law designed to ensure access to public records — trumps the secretary of state’s reading of certain laws governing voter data that provide exceptions to protect privacy. Those laws provide for release of a public voter list but not the more detailed master list that is used by election administrators and, if necessary, law enforcement, Kaisershot said. 

But Kaisershot’s argument was interrupted almost immediately — and frequently — during his 30-minute opening argument by justices who didn’t find those statutes to be as clear as Simon and Kaisershot did. 

Several justices wondered how much discretion the secretary of state has  when it comes to deciding what data should be released and which should not. “What bounds that discretion?” asked Justice Paul Thissen. “Has the secretary written any rules or provided any information about what bounds his discretion or is it just ‘I get to decide today that this person gets this information and tomorrow I get to decide that this other person doesn’t get this information?’” 

The information can only be released for electoral, political or law enforcement purposes, Kaisershot told the justices, and the secretary can’t discriminate against protected classes such as those based on gender or race.

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The arguments at one point fell into debate over whether a voter list is “data” under the Data Practices Act. The Minnesota Voters Alliance argues that it requested data that should be released under the presumption of openness outlined by the DPA. The state, however, argued that voter lists are something else: information covered instead by specific sections of election law.

“The problem with applying the Data Practices Act presumption here is that it absolutely steamrolls the entire structure” of election laws that limit access to voter data, such as the Safe At Home law, which protects domestic violence victims, or statutes preventing the use of voter data for commercial purposes, said Kaisershot. 

The most recent of those limits, passed in May, declared that party preference information gathered in presidential primaries is non-public — except that it will be provided to the four major political parties. That is, the parties will know whether a voter took a GOP or DFL ballot, but the public will not be able to get that data.

Chief Justice Lorie Gildea asked whether the changes addressing presidential primary suggested that the Legislature can be very clear as to what voter data should be private — and what isn’t. That was the conclusion of the Court of Appeals, after all. “The secretary of state may not assume a function of our legislature and classify data as not public when the legislature has not made that determination,” the court ruled. 

“The Legislature knows how to do that when they’re trying to carve something out,” Gildea said.

Justice David Lillehaug also pointed to the presidential primary law change, saying it specifically exempts some information on voters collected by the state.

Kaisershot said he thinks the specificity in the law came after — and as a result of — the Court of Appeals decision in the Cilek case, which favored the Minnesota Voters Alliance. After making party preference data public when first adopting a presidential primary law, in 2016, the Legislature “had a change of heart,” Kaisershot said. “Likely in reaction to the Court of Appeals decision and its analysis that the presumption applied, it appears that the Legislature in 2019 said, ‘No, we’re going to create this data as frankly quasi-private’ because it gives it to the parties but not the public.” 

Lillehaug wondered why the Legislature felt the need to do that this past session, since under Kaisershot’s argument such party preference data would have been private already. Were they trying to craft a “belts and suspenders” level of protection?

Yes, Kaisershot said, except that the new law gives information to the parties, which wouldn’t have been the case had the secretary relied on his interpretation of current law: that he has the discretion to deny access to the more detailed information contained in state and county voter records.

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Highly valuable data

During his time before the justices, the attorney for the Voters Alliance, Erick Kaardal, argued that there is nothing in state law that says the data his client requested was not public. And absent such a specific exemption, he argued, the presumption of openness in the DPA should govern. 

Kaardal also stressed that while Simon gave the Alliance information on “active” voters, he withheld data on “inactive” voters, a difference of a million and a half records.

“I’m not politicising things by saying inactive voter information is incredibly valuable to political participants. It is incredibly valuable because those are the people not eligible to vote,” Kaardal said. “We want that information to get out to our people so they can know who’s not able to vote.”

He said the inactive list “is incredibly valuable to a political campaign; that’s like money, it’s like having an advantage over the other side as to who is inactive and being able to go out and run a registration campaign.”

Therefore, giving a public official discretion over if and how that data is released — perhaps even having the ability to give the information to one campaign but not their opponent — “doesn’t sound like Minnesota.”

“We need to make clear, I think, that that kind of discretion doesn’t exist under the statute,” Kaardal said.

He said the purpose for the data request by his client “is that election integrity and credibility are fundamental to the public’s willingness to be governed, and the data the Minnesota Voters Alliance is requesting is critical in assessing both.”

During his rebuttal, Kaisershot was asked why they state wouldn’t release lists of inactive voters that might include deceased voters or others whose authority to vote had been challenged.

“Can you explain the public policy argument: that if this information that people were challenged and that the basis for the challenge was public, it would somehow discourage  people from registering to vote?” Thissen asked. “I don’t quite get that argument.”

Kaisershot said that if people considering registering knew that all their data would be subject to public scrutiny, “that may discourage people from participating in that process.” 

If the Legislature wanted voter status to be included on the public voter list, it should state that specifically, he said. Yet in 2017 the Legislature changed state law to conceal voters’ status in the poll books used to check in voters on election day.