Primary election privacy concerns are getting attention at the Minnesota Legislature. Is it too late to do anything?

There are at least nine bills before the 2020 Minnesota Legislature intent on limiting the disclosure of party preference data of voters who participate in the March 3 presidential nominating primary.

None of those bills will pass into law in time for Tuesday’s voting.

So those who cast ballots in the state’s new primary should expect that someone — the leaders of one or all of the state’s four major political parties — will know which party ballot they used. As of now, other than a ban on commercial use, there are no restrictions on what those party officials can do with the data.

There are about 10 weeks between when the votes are cast and when county elections officials produce voter lists, and a law change could happen during that period. But voters would have to have a lot of confidence in a group of lawmakers who seem divided on what to do, if anything.

Whatever chilling effect the issue has on turnout will be hard to measure, since Minnesota hasn’t had a meaningful presidential primary since 1956. And even though the 2016 caucus turnout was considered to be strong, that still translated to only 207,000 DFLers and 114,000 Republicans participating. 

Supporters of the disclosure provision say the primary won’t be that much different from the old caucus system, since Minnesotans who took part in those meetings signed rosters and provided addresses and phone numbers to the parties. Opponents say the caucuses were clearly party events — not an election run and paid for by taxpayers.

Allen Taylor is one among those in the latter camp. The small business owner from Robbinsdale has worked as an election judge for the last six elections. But this year, he will not only not take part in the presidential primary, he won’t help run it, either. 

“I object to the concept that a political party is driving this function and the state of Minnesota is paying $12 million to provide a function for the political parties,” Taylor said.  

The voter file, the list of those who participate in the primary, has great value to the parties for party building and fundraising — and could even come into play during redistricting, Taylor said. And no, he is not comforted by the prospect that a bill will be passed at some later date to protect the privacy of his ballot after the primary.

“Once information is out there, it’s out there,” he said. “Because it has been collected, it will never not exist.” 

And once the election happens, the steam behind the complaints will lessen, he said.

Others who have said they won’t risk voting in the primary are clergy, business people, non-partisan local elected officials and non-partisan government staffers.

Cleaning up a mess … of their own making

It wasn’t supposed to be like this. There were lots of congratulations shared when the Minnesota Legislature agreed just months after the much-criticized 2016 precinct caucuses to create a presidential primary. There had been so much confusion and chaos at many of those 2016 caucuses that both major parties decided to turn the duty of selecting their nominee over to the state.

But despite the state’s sponsorship and funding, the elections remain private party functions, and the parties determined many of the rules. While none of those rules were especially controversial when the bill was passed, the closer the state got to the first primary, one rule has raised a lot of concern, and a little anger. Both major parties insisted on getting lists of every voter who voted in their primary, claiming that such “recordation” is required by national parties. Such lists, they say, are needed to make sure there is no mischief by the other party. Also, without the list, a state’s delegates to the national nominating conventions will not be seated, they claim.

The 2016 bill said the lists were public, which meant the parties and individuals could request them under the state Data Practices Act. But that was changed last year thanks to a provision included in an omnibus elections bill. Rather than restrict the lists to the parties — the DFL getting a list of DFL voters and the GOP getting a list of GOP voters — the bill made bigger changes. All four major parties — the GOP, the DFL and the two new marijuana legalization parties — would get both lists.

DFLers in the legislature said the change came in closed-door conference committee and blamed the GOP negotiators for the change, and Senate State Government Committee Chair Mary Kiffmeyer, a former secretary of state, doesn’t deny that she prefers the language that was ultimately passed. 

Since then, Minnesota Secretary of State Steve Simon and legislators have heard anecdotally that some voters would rather skip the primary then have their party preference known to the four parties, and perhaps anyone else if the data is shared or even published.

All of which spurred the nine bills. They range from a measure authored by Rep. Peggy Scott, R-Andover, House File 3217,  that would make all party preference data private regardless of party threats not to seat state delegates, to a Kiffmeyer proposal, Senate File 3482, that only says that the data cannot be published or disseminated (though it could otherwise be used by the parties for political purposes such as list building and fundraising). 

Somewhere in between is Simon’s own proposal that was introduced in both houses and approved by the DFL House on a partisan 72-55 vote last week.

That bill (House File 3068, and its Senate companion, Senate File 2986) says the lists are provided to the national parties only, and that the only legal use is to make sure that rival parties did not crossover in large numbers to make mischief, such as trying to nominate a weaker candidate. Under the proposal, marijuana parties would get no lists and the DFL and GOP would only get the list of their own voters. Finally, voters would be able to opt out of having their party preference recorded at all. 

But it will not be taken up by the state Senate before Tuesday, and likely not at all. Instead, the Senate State Government Committee will hold a public hearing on the Kiffmeyer bill while primary voting is happening. The evolution of that response has been sudden. Kiffmeyer, R-Big Lake, had been saying that no change in the current law was necessary.

“Voting in the primary has already started and we can’t change the rules now,” she said in early February. “Furthermore, the national political parties have said they will not seat the Minnesota delegates to nominate their candidates. We shouldn’t put our voice in the nominating process at risk this late in the game.”

Kiffmeyer’s position was endorsed by Senate Majority Leader Paul Gazelka. But Republican lawmakers were not all supportive. Scott’s bill had many GOP co-sponsors and a Senate bill very close to the Simon measure had five sponsors, three of them Republicans. The GOP holds a majority in the state Senate of just two votes.

On February 21, Kiffmeyer and Gazelka introduced SF 3482, which Kiffmeyer used as an occassion to take some shots at the DFL. “Having finally recognized their mistake in 2016, Democrats keep shifting the goalposts as they attempt to duck responsibility and spin the issue back on us,” she said. “I am cleaning up this mess so every Minnesotan can exercise their right to vote without consequence.”

Simon, a DFLer, termed the Kiffmeyer bill a “CYA bill that was dropped so that someone could say they’re doing something about a problem they’re hearing a lot about. It seems so totally insincere to me.”

Simon said he hopes voters will still take part in the primary and be comforted by the continued push to pass some sort of privacy provision before lists are actually compiled and presented to the parties.

“It would have to have been passed and signed (by Tuesday) for people to have total assurance,” he admitted. “For other voters who are concerned and who are following this, I suppose will have to make a judgement about whether they think chances of ultimate passage are high or not.”

Simon is an awkward champion of the proposed changes. He preferred that no voter party preference data be collected and would pick the Scott bill if he could. Instead, he has reluctantly supported providing lists to each party — though not to all parties — because he didn’t want to risk state delegates not being seated at their national conventions.  

He said he has asked both the DFL and the GOP why a handful of states are not held to the requirement of providing lists. He was told those states either have voters registration by party or were, like Wisconsin, grandfathered in when national party rules were passed to demand voter lists.

“Do we really at this juncture want to tempt fate and blow up our presidential primary?” he said.

Very concerning. Or NBD. 

During a joint press conference meant to encourage participation in the Feb. 25 precinct caucuses, which were still held despite the creation of the presidential primary, the chairs of the DFL and GOP continued to have very different opinions about the privacy issue.

“We were hearing from Republicans and Democrats on this issue throughout the state, not only members of the public but also Republican and Democratic elected officials who were very concerned about the chilling effect the current law would have on voter participation,” said state DFL Chair Ken Martin.

At that point, he was still hopeful that the Senate GOP bill would move more quickly. It didn’t.

State Republican Party Chair Jennifer Carnahan had a different take: “There are over 40 states in the country where the primary voter file is given to the state unit,” she said. “What was passed in 2016 is no different from that.” 

The GOP has contracts and protocols to assure that the lists are not shared outside the party, she said. “To try to change the rules in the middle of the game doesn’t make a lot of sense,” she said. “Our position has not changed.”