A trio of lawsuits in both state and federal courts seeks to force changes in how Minnesota processes absentee ballots for the August primary and November general elections.
The main target of the suits — brought by the ACLU of Minnesota and the NAACP; the League of Women Voters and the Campaign Legal Center; and the Minnesota Alliance for Retired Minnesotans, respectively — is the state requirement that absentee voters have another voter witness the voting process and their signatures on ballots.
In an election that could be limited by social distancing practices brought on by the coronavirus pandemic, such a requirement could be hazardous for voters who live alone and don’t want to have contact with someone outside their homes, the suits allege.
And since the right to vote is fundamental under both the state and U.S. constitutions, any infringement on it must be enjoined by the court, the suits argue. “It makes sense to not have an in-person witness requirement when we’re also trying to tell these people to stay away from other people in general so they won’t get the virus and we can slow the spread of this disease,” said Julia Dayton Klein, an attorney for Lathrop GPM who is bringing the League of Women Voters challenge.
Klein’s lead plaintiff is Vivian Latimer Tanniehill, a 67-year-old African-American woman who is immunocompromised and has asthma. “This is not an imagined issue. This is actually a real problem,” Klein said, pointing to the problems with voting in the Georgia primary to illustrate the potential issues with trying to hold an in-person election in a pandemic.
The suits have been filed in the midst of a state and local debate over voting during the pandemic, especially over reducing barriers to the use of mailed ballots or converting entire elections to vote-by-mail.
“Despite widespread support for voting by mail, the Legislature has nonetheless refused to make any accommodation to ensure that the right to vote is not unnecessarily or unreasonably burdened by the profound risks to individual health, public health and access to the ballot box caused by the COVID-19 pandemic,” the ACLU and NAACP state in their suit, which has been filed in Ramsey County.
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,” it states. “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.”
Meanwhile, the League of Women Voters suit, scheduled for a hearing in U.S. District Court on June 22, notes that finding a witness who is also a registered voter is not only an issue for those who live alone.
“This includes individuals that live only with minors, live in mixed-citizenship status households, or simply live with others that choose not to vote,” the suit claims.
While 11 states require a witness for a ballot signature, Minnesota is the only one that requires that person to be a registered voter in the state (though the requirement doesn’t apply to military and residents living outside the country).
The ACLU suit asks that the court throw out the witness requirement for absentee and mail balloting and make the state “mail ballots to all registered voters to protect the right of all eligible voters to participate in the elections during the COVID-19 pandemic.”
Minnesota law requires voters to request mail ballots for each election. Once a ballot arrives, applicants must have their signatures verified 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.
While all three lawsuits focus on the witness requirement, there are several things that distinguish the suits from one another. The Alliance for Retired Americans suit asks the court to waive deadlines for when mailed ballots must be received by elections officials in the event that the Postal Service is disrupted by the virus, for example. The League of Women Voters wants a permanent injunction against the requirement that witnesses in future elections be registered voters rather than simply competent adults. And the ACLU/NAACP suit asks the court to order that elections officials mail a ballot to each registered voter for both the primary and the general election.
That last request would challenge the decision made during the regular session of the Minnesota Legislature to not shift the state to an all-vote-by-mail system, something five other states have done over the last two decades. While Secretary of State Steve Simon and many DFL lawmakers favored such a move, Republicans in the House and Senate did not.
The Legislature did agree to appropriate $14.3 million in federal funds, including $6.9 million from the CARES Act specifically to help states deal with COVID-19 related challenges. Among the ways the state could use the money is to promote the use of no-excuse absentee balloting to help those reluctant to go to polling places as well as to reduce the number of in-person voters. Simon has said he would like to boost the mail-ballot share from around 24 percent in the most recent general election to 50 percent or 60 percent this election.
The state and local governments are also discussing other changes to allow for more social distancing at polls, including: having more polling places; installing physical barriers between poll workers and voters, and between voters and other voters; providing more frequent cleaning; and even using disposable pens.
But Simon and local officials have also expressed concerns that finding elections judges, already a challenge, will become more of one. The primary source of judges are retirees, who are more susceptible to bad outcomes should they contract COVID-19.
Any court-order regarding mailed ballots would also be a logistical challenge for elections officials in terms of finding vendors to print and process ballots. Simon told a House committee in April that an envelope vendor would have to be contracted by the first week of May in order to have time to complete printing for the August primary.
The state has not yet filed a response to the ACLU/NAACP suit in Ramsey County. But in its response to two of the suits — those filed by the League of Women Voters suit and the Alliance for Retired Americans — Attorney General Keith Ellison denies that the groups are entitled to the injunctive relief they seek. “Plaintiffs have failed to state a claim,” asserts the reply, adding: “Defendant was not the cause in fact of any of Plaintiffs’ alleged deprivations.”
While the state allows that Simon has expressed concerns about the impact the coronavirus could have on voter turnout — and that some voters might fear exposure to the virus at polling places — it argues that current state laws does not deny voters their rights under the state and U.S. constitutions.
And while it is possible that opponents of universal vote-by-mail could intervene — the Republican National Committee has sued to block California Gov. Gavin Newsom’s executive order for an all vote-by-mail election in that state — no such moves have yet been made in the Minnesota cases.