Easier absentee mail voting coming to August primary election amid pandemic

GOP lawmakers say it’s an end run around the Legislature, will endanger integrity of elections

By: - June 17, 2020 9:36 pm

Secretary of State Steve Simon agreed to a settlement with plaintiffs who sued to make it easier to vote by mail during the pandemic. A judge approved the deal Wednesday. Photo by Tony Webster/Minnesota Reformer.

Minnesota voters will not need a witness to sign their mail-in absentee ballot, and they’ll get extra time to send in their ballot for the August 11 primary election, a state judge ruled Wednesday. 

The judge approved a deal struck between DFL Secretary of State Steve Simon and a group of Minnesotans who sued the state, alleging Minnesota’s absentee ballot laws impinged on their constitutional rights given the dangers of COVID-19. It only applies to the August primary election, but sets up a potential high-stakes legal battle before the November general election, when voting administration will again be at issue during what could be a second spike in coronavirus cases.  

Republicans objected, saying any changes to voting should come from the Legislature and not a behind-closed-doors deal between Simon and the plaintiffs — especially since he’s on record agreeing with their policy aim of easier voting. 

State law currently requires absentee mail-in ballots have the signature of a witness, who must be another registered voter in Minnesota, a notary public or a person authorized to administer oaths. The law also says that mail-in ballots can only be counted if they are received by 8:00 p.m. on Election Day.

Marc Elias, a powerhouse elections lawyer for Democratic causes and campaigns, represents the Minnesota Alliance for Retired Americans and four registered voters. The voters allege multiple health conditions put them at risk of COVID-19 complications if they have contact with a witness, as current law requires.   

A different lawsuit in federal court came from the League of Women Voters of Minnesota and Vivian Latimer Tanniehill, a 67-year-old voter with a compromised immune system, court filings say.

“The fundamental right to vote cannot be conditioned on voters’ willingness to risk contracting a disease that has killed more than 100,000 Americans over the past few months,” read Tanniehill’s legal brief.

“It is a very real injury and a very real threat to a significant amount of Minnesotans: the immunocompromised, the elderly, and people who have for other reasons chosen to quarantine to try to keep themselves and their families safe,” said Julia Dayton Klein, Tanniehill’s attorney.

Simon reached a deal Tuesday with the plaintiffs in those two lawsuits, but the agreements require a judge’s approval to take effect. 

In the federal lawsuit, U.S. District Court Judge Eric C. Tostrud ordered a fairness hearing for Thursday, citing case law providing that “approval of a consent decree requires careful court scrutiny,” and that the Court cannot “mechanistically ‘rubber stamp’” the agreement without hearing the legal argument.

But approval came more quickly in the state lawsuit, with Ramsey County Judge Sara Grewing signing off on the order Wednesday morning without a hearing. Elias tweeted that he thought the order “moots the need for a federal [ruling]” in the other lawsuit, but Klein said a hearing would still occur.

The order does not apply to voters who are not yet registered, and does not apply to the November general election. But the plaintiffs could later seek the same or different changes as more information develops surrounding the risks of the coronavirus pandemic.

In an interview Wednesday, Simon said that mail-in ballots will still have a box for a witness signature, but that his office will put notices on its website and work to inform voters of the changes prompted by the court’s order.

Republicans cry foul 

Republicans blasted the deal during a Wednesday press conference at the Capitol. They said Simon made an end run around the Legislature, exposed the system to voter fraud and weakened the integrity of Minnesota elections. 

Sen. Mary Kiffmeyer, R-Big Lake, objected to a deal between Secretary of State Steve Simon and plaintiffs who sued the state over absentee ballot rules. Photo by Tony Webster/Minnesota Reformer.

“You go to court and your liberal friends are suing you and then you just make an agreement with them contrary to long-standing Minnesota law,” said Sen. Mary Kiffmeyer, R–Big Lake, a former Secretary of State. “Just sue until you’re blue, and get what you want through the courts if you can’t get what you want through the Legislature.”

Studies have shown voter fraud is rare, and multiple states run elections primarily through mail-in ballots with little fraud.

Kiffmeyer said the Republican caucuses are reviewing their options. Simon said that his office felt the deal was compelled by the law. He said that contrary to GOP allegations of collusion between him and the plaintiffs, judges must independently decide that the agreements are fair, adequate, reasonable and consistent with the public interest.

“Sometimes on a policy basis I’m on record as supporting the aims of the plaintiffs, but we still defend the lawsuit vigorously,” Simon said. “Consent decrees are about the law, not about the policy outcome. The two have to be totally separate.”

Asked about GOP concerns about the process, Klein said that “Minnesotans are entitled to vindicate their constitutional rights in court.”

Lawsuits will continue

Even with the court-ordered changes in place for the August primary election, the lawsuits seek permanent changes to Minnesota election law.

The state lawsuit alleges the ballot witness requirement and Election Day receipt deadlines are a burden on voters — even absent the pandemic — and seek to invalidate them as unconstitutional. 

The federal lawsuit doesn’t seek to end the witness requirement, but instead aims to remove the requirement that the witness be a Minnesota voter, notary public or person authorized to administer oaths.

“We still have to figure out what we’re going to do about November,” Klein said. “But this lawsuit will continue. We’re trying to invalidate the statute on its face as a violation of the First Amendment and the equal protection clause of the 14th Amendment.”

A third lawsuit, filed by the NAACP Minnesota-Dakotas has not been settled. The group is asking the court to require the secretary of state to automatically mail absentee ballots to all registered voters at least 30 days prior to any election until a COVID-19 vaccine is easily accessible and widespread community transmission has ceased. Black Americans have suffered disproportionate rates of hospitalization and mortality from the disease. 

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Tony Webster
Tony Webster

Tony Webster is a journalist and photographer. He won the Minnesota Society of Professional Journalists 2017 Peter S. Popovich Award for his freedom-of-information advocacy.