A court order allowing registered Minnesota voters to skip getting a witness signature on their mail-in ballot for next week’s primary election will be extended to the November general election, a state court judge ruled Monday.
The decision by Ramsey County Assistant Chief Judge Sara Grewing also ordered that with an increased volume in mail-in balloting and U.S. Postal Service delays, election officials must count Minnesotans’ ballots if they are postmarked by Election Day, as long as they are received by official county canvassing dates.
The ruling follows an hours-long court hearing Friday involving two lawsuits from groups concerned about preserving voting rights during the COVID-19 pandemic, including for populations most vulnerable to the effects of infection, like people of color, seniors and those with preexisting health conditions.
Minnesota Secretary of State Steve Simon, who oversees elections administration, agreed with the ruling. The campaign of President Donald Trump and the Republican Party of Minnesota decried the ruling as a subversion of the Legislature and an invitation for voter fraud.
The skirmish is one of many taking place in swing states across the nation as voting rights advocates seek to relax some election laws to allow easier voting during a public health crisis, clashing with the Trump campaign and Republicans’ efforts to keep voting rules unchanged.
The court denied a separate request that would have required mail-in ballots be automatically sent to all registered voters statewide, calling it a sweeping change more suitable for the Legislature to decide. Voters will be able to request absentee ballots online or at their local election office.
Judge Grewing had said her order would be issued quickly to allow for any appellate review. The Reformer has reached out to the Trump campaign and Republican committees’ attorneys to ask if any appeal is planned.
A flurry of lawsuits
One of the lawsuits was filed by the Minnesota Alliance for Retired Americans, who had reached a consent decree agreement with Simon for next week’s primary election to lift the mail-in ballot witness signature requirement and allow ballots to be counted as long as they are postmarked on or by primary Election Day.
Judge Grewing signed off on that agreement in June, and the group reached a subsequent agreement to do the same for the November election, which Grewing approved in her Monday order.
“The Minnesota Alliance for Retired Americans is in this suit because its members face a grave risk of disenfranchisement as a result of the witness requirement and the Election Day receipt deadline,” argued the group’s attorney Amanda Callais in a court hearing held remotely via Zoom video conference on Friday.
Callais described her client’s members as being mostly over 65 years old, and at extremely high risk for contracting COVID-19 with potentially fatal consequences.
“They face the potential to contract and spread a deadly virus if these laws are not enjoined and they are forced either to vote in-person, or if they are forced to interact in one-on-one situations with witnesses in order to meet Minnesota’s absentee ballot requirements,” Callais said.
Another lawsuit came from the NAACP Minnesota–Dakotas Conference, represented by the state and national ACLU, which also obtained Simon’s agreement to waive the witness signature requirement for the November election.
That group also asked for something Simon wouldn’t agree to — a court order requiring a ballot be automatically sent to every registered Minnesota voter without them having to ask for it, a process known as “universal mail-in voting.” Judge Grewing denied on Monday a motion for an injunction that would have required ballots be automatically mailed.
Both of these lawsuits were also brought on behalf of several Minnesota voters with underlying health conditions such as cancer and diabetes, or who are on immunosuppressant medications.
“In just the days since the consent decree was filed with this Court, over 11,000 additional people in Minnesota now have COVID-19,” said Theresa Lee, an attorney for the ACLU’s Voting Rights Project, arguing the Minnesota Constitution required the court to act to protect voters.
Other election-related lawsuits in Minnesota remain ongoing, including a federal lawsuit seeking to overturn the witness requirement in all future elections, and a lawsuit from the Minnesota DFL Party challenging a law which prohibits participation in party caucuses from Minnesotans who are prohibited from voting. A judge ruled in another case last week that the state cannot enforce limits on Minnesotans assisting other voters with their ballot in cases where the voter is blind, has disabilities, cannot read or write, or when returning absentee ballots.
Witness signature requirement waived
Susan Bergquist is a 68-year-old voter who lives alone and is on multiple immunosuppressant medications, and Eleanor Wagner is a 78-year-old voter beginning chemotherapy for pancreatic cancer, court filings say.
Both Bergquist and Wagner joined the NAACP case as plaintiffs, arguing in court filings that the risk of COVID-19 means they will have to choose between exercising their right to vote and their own health.
John Gore, an attorney representing Trump’s campaign and state and national Republican committees, argued in court briefs that if restaurant dining and barbershop visits are permitted under Gov. Tim Walz’s reopening plan, then voting should be safe, too.
Gore said that 46 days of early voting, curbside voting, and implementation of guidance from the federal Centers for Disease Control and Prevention provide safe options for in-person balloting, and that a decision otherwise is best left to the Legislature.
“At the end of the day, there’s not evidence of what the effect of the pandemic will be or how many voters will be affected, or what the magnitude of the burden actually is,” Gore said.
The Trump campaign’s legal brief suggested that since Bergquist receives immunosuppressant infusions, she can ask a healthcare worker to be her ballot witness.
“Mr. Gore is being remarkably cavalier about the lives of our clients and of other Minnesota voters,” said Lee. “I’m almost dizzied by it.”
Gore argued the plaintiffs’ case would invalidate a statute enacted by the Legislature. “This is a significant judicial act to declare that a statute will not be enforced, even for just one election.”
The plaintiffs and Simon objected to the Republican intervention in the case, and even more strongly objected to doing nothing in the face of the pandemic.
“We don’t believe that anyone — even if you’re young and healthy — should be in the position where they have to break social and physical distancing guidelines in order to exercise their right to vote,” said Jason Marisam from the Minnesota Attorney General’s Office, which represented Simon during Friday’s hearing.
“They’re not able to explain why it’s in their interest to make it harder for our clients to vote,” argued attorney Craig Coleman, who also represented the NAACP. He said the Trump campaign’s interest “is to impose burdens on voters — to make it harder for voters to cast their ballot — and they’re not willing to tell the court that’s why they’re here.”
Gore argued that voters can comply with the witness requirement while maintaining physical distancing, such as through windows, doors, Zoom video conferencing and e-notaries.
Lee retorted: “[Gore’s] references to e-notarizations or Zoom would not allow the witness requirement to be completed. You can’t e-notarize the outside of an envelope that needs to contain an absentee ballot.”
The plaintiffs also sought to rebut claims of voter fraud, citing the conservative Heritage Foundation, which found voter fraud in only about 0.00006% of ballots cast nationwide over the past 20 years. In Oregon, where voting has been conducted entirely by mail since 2000, the group found only two fraud convictions since then, a fraud rate of 0.000004%.
Gore said: “The state doesn’t have to wait until there’s voter fraud to do something about voter fraud.”
The state’s attorney noted that the witness requirement still applies for newly registered voters. “The Secretary’s reasoning there is that the [witness] role is more like an election judge. We need some verification that this is who you are,” Marisam said. “If you’ve already registered to vote and we’re mailing you a ballot, you’re in our system, we know who you are.”
Marisam also said that the law already allows Minnesotans living overseas or serving in the military to submit ballots without witness signatures, so we can extend that to everyone in the time of COVID-19.
“The rationale is that if you’re a Minnesota voter living halfway around the world, the burden of finding another registered Minnesota voter to witness your ballot is too great,” he said. “So baked into the law is the idea that as the burden of the witness requirement goes up, Minnesota law gets rid of the witness requirement.”
The plaintiffs also submitted an expert report from a doctor who testified that Native American voters residing on reservations face more widespread incidences of COVID-19 with less available registered voters and government officials to serve as ballot witnesses.
“In the wake of the current pandemic, for many Native American voters, [voting in person] is just not a safe or viable option,” said attorney Abha Khanna.
Judge rejects ask for automatic mailing of ballots
In Monday’s ruling, Judge Grewing denied a motion that would have required election officials to automatically mail a ballot to every registered voter statewide 30 days before the election.
In court briefs, the NAACP plaintiffs argued in favor of universal mail-in voting by citing the quarter of Minnesotan households who lack internet access to apply for an absentee ballot.
“Those Minnesotans can’t do what [Simon] and the [Trump campaign and Republican committees] say is easy,” argued Jeff Justman, one of the attorneys arguing at Friday’s hearing.
Attorneys also pointed to poll workers in other states contracting COVID-19, and the potential for long lines to vote as polling places attempt to balance CDC guidelines with the crowd of a presidential election year.
Simon had argued in court briefs that sending mail-in ballots automatically could result in ballots being mailed to old addresses, that election officials might incur unnecessary expenses, and that any inconvenience caused by the absentee ballot application process doesn’t threaten the constitutional right to vote.
During normal years, local election officials in towns with fewer than 400 people are permitted by state law to automatically send ballots to every registered voter, and in 2016, about 59,000 Minnesotans voted this way, court briefs say. About 130,000 Minnesotans currently live in these mail-only jurisdictions, according to the Secretary of State.
Court briefs cited Erlandson v. Kiffmeyer, a landmark Minnesota Supreme Court case that followed the death of U.S. Sen. Paul Wellstone 11 days before the 2002 election. That ruling declared it would be an unconstitutional equal protection violation to allow some mail-in voters to re-cast their ballot, but not others. The NAACP plaintiffs argued that allowing universal mail-in voting for some Minnesotans but not others is similarly unconstitutional.
Judge Grewing said the idea of universal mail-in voting was such a sweeping, fundamental change best suited for the Legislature. Her ruling said implementing it now risked chaos and disruption in election administration and could dramatically increase costs.
Election Day postmark deadline will account for mailing delays
The court’s ruling sets aside a state election law which requires mail-in ballots be received by the time polls close on Election Day. Instead, ballots that are postmarked by Election Day will be counted so long as they are received before the results are certified.
For next week’s primary election, that gives ballots about two extra days to arrive. For the November election, ballots must be received within seven days.
Minneapolis election officials urged voters to mail their ballots no later than a week before next week’s primary election, and are offering drive-up ballot returns for voters who are concerned there’s not enough time for their ballot to be received.
Attorneys argued that in normal election years, thousands of votes are thrown out because they were not received in time, a number that will skyrocket due to the increased volume of mail-in ballot voters. The increased demand could cause delays in sending ballots out, which in turn could lead to delays in mailing in completed ballots.
Over 545,000 Minnesotans have requested an absentee mail-in ballot for next week’s primary election as of Friday, the Office of the Secretary of State said, which is over 20 times more than the same time in 2016.
“Increased pressure on the U.S. Postal Service combined with budget cuts of that agency will make for slower and less predictable mail delivery,” said Khanna, arguing that a postmark deadline offers voters certainty in their deadline to act in the face of unknown mail delivery times.
The Washington Post recently reported that the “Postal Service is experiencing days-long backlogs of mail across the country after a top Trump donor running the agency put in place new procedures described as cost-cutting efforts, alarming postal workers who warn that the policies could undermine their ability to deliver ballots on time for the November election.”
Judge Grewing asked whether allowing extra time for ballots to come in would result in a delay in data. “We don’t want a black box where there are no results coming out of Minnesota for seven days, and that is not going to happen,” promised Marisam.
Results will be reported on Election Night of in-person votes and absentee ballots received to date, Marisam said, acknowledging that election officials may still be counting ballots for several days after the election.
“It is possible in a close election that we can’t make that final call until later,” he said.
The case represents a divergence in views on ensuring the right to vote while maintaining the integrity of elections during a global pandemic. But Callais said the Trump campaign and Republican committees’ true intent was to undermine certainty in the election.
“It’s not just the plaintiffs in this case who need certainty,” said Callais, “It is the voters in Minnesota who need to know that they will be able to safely vote in November, and it’s also the local election officials who are preparing ballots and who need to know the rules.”
The plaintiffs questioned how the Trump campaign would be injured by more Minnesotans exercising their right to vote, quoting Trump speaking on Fox News earlier this year: “They had levels of voting, that if you ever agreed to it you’d never have a Republican elected in this country again.”
President Trump has made statements opposing absentee mail-in balloting as “fraudulent” and a “scam” without evidence, and despite voting by mail himself and advocating for its use by seniors and military service members, two strong GOP voter blocs.
Republicans opposed all of the changes sought, arguing that it would “potentially dilute the votes of voters who do comply and vote validly under state law.”
Gore argued that predictions are mere speculation, and that the changes don’t make sense for everyone when only a portion of the electorate is at the highest risk for COVID-19. Khanna retorted that it would be impossible for election officials responsible for counting votes to develop criteria for which ballots to accept based on the voters’ diagnosed medical conditions.
“This is a once-in-a-century pandemic that is changing everything and it affects everybody. We just reject this idea, this view, that it should be viewed narrowly as to just old people,” Marisam told the court.
Khanna said nothing less than the credibility of the election is on the line: “Election integrity would be undermined if the very people most vulnerable to the effects of coronavirus and whose health is most threatened by the current pandemic are the ones whose right to vote is most threatened by these challenged laws,” Khanna said. “The public interest favors permitting as many qualified voters to vote as possible.”