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

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. 

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.

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.

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.

Comments (25)

  1. Submitted by Max Hailperin on 11/07/2019 - 11:35 am.

    A very nice summary of the oral argument, which I viewed remotely. For a different perspective on what is at stake, see

  2. Submitted by Pat Berg on 11/07/2019 - 12:28 pm.

    “voter’s birth year, address, phone number”

    That sounds to me like a perfect starting point for someone who wants to get into doing some identity theft.

    • Submitted by Dan McGrath on 11/07/2019 - 07:54 pm.

      Well, hang in to your britches, because that isn’t the information the secretary is trying to “protect.” All that is available to buy from the secretary of state on a handy CD for $46.

      • Submitted by Max Hailperin on 11/08/2019 - 08:35 pm.

        As Dan knows, there are restrictions on who can get that CD and anyone who doesn’t want their data on it can just ask to have their registration removed, which really means marked inactive. Neither of those apply to his organization’s data-practices request.

    • Submitted by RB Holbrook on 11/08/2019 - 09:42 am.

      Or harassment, on a large scale.

  3. Submitted by Joel Stegner on 11/07/2019 - 12:42 pm.

    Whether a person voted or not should be protected. A political party could punish a member who they found chose to sit out an election. The state itself should be cleaning the rolls of deceased voters, as they all should be producing death certificates. The same applies to those with criminal convictions. Private parties have no right to do this, because they could chose only to report the deaths and voting of felons of the political party they oppose. State officials can develop new methods to clean the rolls to avoid political game playing.

    • Submitted by Dan McGrath on 11/07/2019 - 07:57 pm.

      That has never been the case in any election, ever. Voting is an inherently public act. Who you vote for is secret and impossible to determine. That you voted is, and MUST BE public infofmation for an election to have any validity.

  4. Submitted by Ray Schoch on 11/07/2019 - 02:41 pm.

    Making voter “data” available to private organizations renders mute any notion that might have existed about a “secret ballot.” That “secret ballot” is the bedrock of any society that purports to be democratic with a small “D.”

    That unpleasant fact seems especially the case in upcoming party primaries – elections in which I’ve taken part in other states without having to provide any more information than that I was a properly registered voter. Mr. Cilek’s stated interest in the integrity of the voting process is a convenient smoke screen for making it more difficult for some Minnesotans to vote, especially those groups he apparently doesn’t like.

    We already have on-the-record research showing that voter fraud in Minnesota is minuscule, in the thousandths of one percent, so making available to private groups all the information the state might have about voters, whether individuals or as groups, serves no legitimate public service related to election integrity. Making such information available to private groups like Mr. Cilek’s is simply a means of suppressing the vote, to the advantage of right wing types for whom female and minority candidates and office-holders are anathema.

    The legislature did Minnesota citizens no favor when the new presidential primary law was passed to take the place of the outdated precinct caucus tradition. Requiring every voter to declare a party preference in order to receive a primary ballot – information highly sought-after by political parties for their own narrow purposes – should never have been made part of election law. It will take primary voters years – literally years – to get off fundraising phone and mailing lists once they’ve been forced to declare a party preference. I speak from experience about this, and it will keep me from voting in a primary election for the first time since I became eligible to vote half a century ago. Neither political party is entitled to know my personal information, and certainly not with my assistance.

    • Submitted by Dan McGrath on 11/07/2019 - 10:39 pm.

      “Making such information available to private groups like Mr. Cilek’s is simply a means of suppressing the vote, to the advantage of right wing types for whom female and minority candidates and office-holders are anathema.”

      OK… Um, how, exactly?

    • Submitted by Gordon Everest on 11/10/2019 - 01:14 pm.

      I agree, Ray. I find it abhorrent that we must first align with a party before we can (attend a caucus) or participate in a primary. We should all be voting for the best person, not the party. We need to do what they now do in California. Have a single primary with candidates from all parties on the ballot. If the top two are of the same party so be it. At least we have a better chance of getting good people to be our representatives. The two party system is killing us (but that is an argument for another day when we can have rank choice voting).

  5. Submitted by Colin Brownlow on 11/07/2019 - 04:08 pm.

    I think a pertinent question is just who is the MN Voter’s Alliance and who supports them? I took a look at their webpage. Doesn’t look like this is a grassroots organisation that came together organically. This group looks well funded and that funding is coming from somewhere.

    • Submitted by Connor OKeefe on 11/08/2019 - 07:25 am.

      Why does that matter? Are you suggesting some citizens do not have the right to public information?

      Fielding a serious legal challenge all the way to the state supreme court is ridiculously expensive. It goes without saying they are all funded by monied interests with myriad interests.

      • Submitted by Colin Brownlow on 11/08/2019 - 10:47 am.

        Yes it is relevant. The motivation behind these kinds of requests do matter. I want to know why the request, particularly given the level of detail, is being made. Note that this request is not being made by an established research institution or a recognized journalism outlet. So yes, asking who is making the request is a legitimate question.

  6. Submitted by Jim Smola on 11/07/2019 - 08:07 pm.

    No private organization or person should have access to a voter’s birth year, phone number, voting history, voter status and reasons for any challenges to that status. It seems that it would be opening a path to creating issues that would further erode our democracy.

  7. Submitted by Connor OKeefe on 11/08/2019 - 07:21 am.

    Www. This stinks to high heaven.

    As election victories grow ever narrower, third party audits become ever more important. The lefties are quick to say there is no evidence of widespread election fraud, that is to say the cases proven are too small to matter.

    To make that argument, while simultaneously working to hinder investigations into fraud is the act of people trying to hide something. Additionally, the “too small to matter” obfuscation burns itself down when we are examining every ballot under a microscope to determine the true state of a hanging chad.

    The Minnesota SOS is clearly putting his partisanship over the best interests of the state. We remain confident the SCOMN will affirm that fact.

  8. Submitted by Paul Udstrand on 11/08/2019 - 10:31 am.

    Well, on one hand is Simon loses it doesn’t matter because no one is going to find any voter fraud anyways. On the other hand, turning this kind of detailed personal information over to a bunch of buffoons with little or no integrity will likely not end well. They won’t be able to use it find fraud, but that doesn’t mean won’t find ANY use for it.

  9. Submitted by Dan McGrath on 11/08/2019 - 12:01 pm.

    If election results cannot be verified, then they have zero validity.

    Would you bet on blackjack, blindfolded, and just trust the house to tell you who won?

    Transparency is crucial to our democratic process and right now, stonewalling Steve Simon is the biggest threat to democracy Minnesota has ever seen.

    • Submitted by Paul Udstrand on 11/09/2019 - 02:08 pm.

      Yeah, I think Trump and Pawlenty, and Backmann all lost their elections.

      Transparency doesn’t require the name and address of every voter, all it requires is a reliable and transparent count of the votes.

      Every voter and ballot is already verified by multiple checks. This is why every year a handful of illegal votes are identified.

      This has nothing to do with voter fraud or election integrity, it’s about keeping a defunct claim alive so Republicans can take another crack at disenfranchising tens of thousands of voters someday.

  10. Submitted by Dan McGrath on 11/08/2019 - 12:11 pm.

    If election results cannot be independently verified, then they have zero validity.

    Would you bet on blackjack, blindfolded, and just trust the house to tell you who won?

    Transparency is crucial to our democratic process and right now, stonewalling Steve Simon is the biggest threat to democracy Minnesota has ever seen.

    • Submitted by Frank Phelan on 11/10/2019 - 10:58 am.

      I believe that it is reasonable to ask which Dan McGrath this is.

      It’s a safe assumption that this Dan McGrath is the one who worked tirelessly on the voter suppression amendment in 2012.

      (Closed circuit to the mods, there was another Dan McGrath that worked tirelessly against that amendment in 2012, so clarification seems merited.)

  11. Submitted by Gordon Everest on 11/10/2019 - 01:37 pm.

    Historically, in our legal tradition, privacy was considered an all or nothing deal — once private information is out, i.e., revealed to someone else, it is no longer private. Fortunately we have come a long way from that. A central purpose for the Data privacy laws (MN was the first state to pass an omnibus public sector privacy law in 1974 April, with the US following up in December that same year) was to establish a middle ground — limited disclosure to particular individuals or organizations, and for particular purposes. The purpose needs to be in the best interests of the subject individual(s) and society as a whole.
    .. Mr Cilek and the MVA, by arguing that the presumption of openness in the DPA means “to anyone for any purpose.” I don’t buy it. That puts us back to an all or nothing interpretation of privacy. Today, purpose and recipient are both important as they apply to questions of data privacy and disclosure. The MN DPA is not perfect but it moved us in the right direction.

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