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Secretary of state agrees to deal on absentee ballots; Republicans cry foul

Minnesota Secretary of State Steve Simon’s decision to strike deals with two groups suing Minnesota over the state’s witness requirement for absentee ballots drew quick criticism from Republicans, who called the deals an end-run around the Legislature by a DFL secretary of state and friendly plaintiffs.

Secretary of State Steve Simon
MinnPost file photo by Briana Bierschbach
Secretary of State Steve Simon stipulated to claims made in two different lawsuits that Minnesota’s witness requirement could endanger primary voters who are self-isolating to avoid infection from the coronavirus.
Minnesota voters choosing to cast ballots by mail this summer will not have to find another registered voter to witness their signatures, the result of agreements between the Minnesota secretary of state and groups challenging the requirement in court. Whether the witness requirement will be required for the November general election is still pending before state and federal courts.

Secretary of State Steve Simon stipulated to claims made in two different lawsuits that Minnesota’s witness requirement could endanger primary voters who are self-isolating to avoid infection from the coronavirus. On Wednesday, a Ramsey County judge signed off on the agreement in the case of Minnesota Alliance for Retired Americans v. Simon

On Thursday, a hearing will be held before U.S. District Judge Eric C. Tostrud on a proposed agreement in another case, League of Women Voters Education Fund v. Simon. In addition to waiving the witness requirement, that deal would direct Simon to tell local election officials to send notice to all voters about the rule changes. A third suit brought in state court by the ACLU, which has not yet been settled, also seeks to have mail ballots sent to all registered voters. 

(UPDATE: The federal court granted a continuance on the hearing at the request of the Republican National Committee, the state Republican Party and the Trump Campaign, allowing them time to intervene in the case.)

Simon’s decision to sign the agreements drew quick criticism from a trio of legislative Republicans, who called the deals an end-run around the Legislature by a DFL secretary of state and friendly plaintiffs. Earlier this year, the Legislature passed a bipartisan pandemic-related election bill, which stopped short of the desire by many DFLers to have all vote-by-mail elections in 2020 but did release federal and state money to promote no-excuse absentee balloting and to make changes in polling places

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Sen. Mary Kiffmeyer, the Republican from Big Lake who chairs the committee that oversees election law, accused Simon and Democratic groups of “going to the courts, circumventing the Legislature and taking an approach that seems to be national — to sue until you’re blue and get what you want.”

Republicans said they were considering intervening in the federal hearing Thursday.

Simon said he is limited in what he can say about how the lawsuits might apply to the November election because they are still pending. But he disagreed with suggestions that he and the plaintiffs were free to reach an agreement that the judges would rubber stamp.

Simon said the judge in the state case, Sara Grewing, had to make a determination that the proposed agreement is “fair, adequate, reasonable and consistent with the public interest” before she signed the consent decree Wednesday. Tostrud, the judge in the federal court case, will have to make a similar determination after the hearing Thursday.

State Sen. Mary Kiffmeyer
MinnPost photo by Peter Callaghan
State Sen. Mary Kiffmeyer, who chairs the committee that oversees election law, accused Simon and Democratic groups of “going to the courts, circumventing the Legislature and taking an approach that seems to be national — to sue until you’re blue and get what you want.”
“Anyone can seek to intervene in these lawsuits,” Simon said. “These are public lawsuits; they’ve been out there. There is no sneak attack here.” 

The DFL elected official said the agreements are “not about my or anyone’s policy preferences; this is about a compelled legal outcome.”

While Simon said he often defends the secretary of state’s office in lawsuits despite agreeing with claims of plaintiffs, “this is about a legally compelled outcome in our judgment and in the judgment of legal counsel,” and said the change to the witness requirement “was never on our list of desired policy outcomes” before the legislative session.

While the agreements do not yet apply to the general election, they will govern the primary; no-excuse absentee balloting and in-person early voting begins June 26. “We’re really up against it,” Simon said of the timeline for elections officials. “We need to finalize things. We have to make judgment calls based on that and with the voters in mind.”

What it means for voters

Under current Minnesota law, voters who want to vote absentee must request a ballot for each election. Once the ballot arrives, applicants must have their signatures witnessed by another registered voter or a notary public. The witness also must assert that the voter showed them a blank ballot to assure that it wasn’t cast by someone else, that the voter cast the ballot in private, and that the voter sealed the ballot in the envelope provided.

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While 11 states require a witness for a ballot signature, Minnesota is the only one that requires the witness to be a registered voter (though the requirement doesn’t apply to military and residents living outside the country).

The new agreements mean that voters using no-excuse absentee ballots will not have to have their signatures witnessed. Such voters will still have to sign their ballot envelopes as well as include the identifying number they choose when applying for a mailed ballot, such as a Social Security number or driver’s license number.

The settlement in the state court case also requires the state to count ballots received up to two days after Election Day, as long as they are postmarked by Election Day. Current law requires those ballots to be received by Election Day.

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The three suits challenging Minnesota’s current rules have some differences, though they share a fundamental issue: challenging the witness requirement. The ACLU claims that one-fourth of residents over age 18 live alone and nearly 40 percent of those over 65 do so. “For many of these people, obtaining a witness presents an obstacle to voting even under normal circumstances, but the requirement during a pandemic poses a direct threat to their health because of the COVID-19 threat,” notes the ACLU suit. “And the adverse impact of this requirement falls more heavily on elderly Minnesotans, Minnesotans with disabilities, and African American and indigenous Minnesotans, who all live alone in larger percentages than the population as a whole.”

The consent decree comes just a week after the state responded to the Minnesota Alliance for Retired Americans suit denying all of the plaintiff’s allegations and claims for relief. And it comes before the issues were presented to a court as part of the request by the plaintiffs to get a temporary restraining order against the witnessing rules.

Republicans call deals a ‘slap in the face’ to legislators

On Wednesday, both the consent agreements and the process were criticized by Republicans, including Kiffmeyer and two leading GOP members of the House Elections subcommittee. The issues raised in the lawsuits pertaining to the witness requirement were not raised by the interest groups, DFL lawmakers or Simon during negotiations over the recently passed elections bill,  they said.

State Rep. Jim Nash
MinnPost photo by Erin Hinrichs
State Rep. Jim Nash
“From my perspective, that is a slap in the face of 201 legislators who are here at the Capitol to be the people’s voice, to create policy,” said Rep. Jim Nash, R-Waconia. 

He said Simon acknowledged that the final bill wasn’t all he wanted but that it was what the Legislature wanted and he would make it work. “Well, now the secretary doesn’t want to make it work; he wants to take some extra effort to change the game,” Nash said. 

Rep. Tony Albright, R-Prior Lake, said Simon was “front and center” in the negotiations over the COVID elections bill. On final passage, only 13 House members and senators voted no. “Now … this secretary of state has decided to acquiesce to two lawsuits without really defending them and basically giving up ground,” Albright said.